The following information provides guidance to selected parties who need to consult with American Indian tribes. While the Texas Historical Commission provides these guidelines to help facilitate consultations, responsibility for consultation rests on federal, state, and local government agencies, as well as other organizations with consultation requirements.
Why Should I Consult with Indian Tribes?
Consultation with Indian tribes is specifically required under Section 106 of the National Historic Preservation Act (U.S. Code 16, §470, et seq.) and the Native American Graves Protection and Repatriation Act (NAGPRA) (U.S. Code 25, §3001, et seq.), and it is encouraged for compliance with the Texas Health and Safety Code (Title 8, Chapters 711–714). Federal law and policy requires federal entities to consult with Indian tribes if a project or activity they are involved in has the potential to cause adverse effects on Native American historic and cultural resources, including, but not limited to, archeological sites, traditional and sacred sites, and artifacts. Federal agencies may delegate consultation responsibility to state agencies, local governments, and other organizations, but only if the tribe accepts or requests the delegation and if an undertaking occurs on public lands; if the project receives federal funding, permits, or licenses; or if the project has other direct or indirect federal involvement and the activity has a potential adverse effect on Native American historic and cultural resources.
What Is Tribal Consultation?
According to the U.S. Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs, consultation is "the process of seeking, discussing, and considering the views of others, and, where feasible, seeking agreement with them on how historic properties should be identified, considered, and managed." 1 Consultation is the development of a trust relationship, an effort to understand and consider any effects an undertaking may have on the consulting parties. Consulting parties may include federal agency officials; local government representatives, including, but not limited to, sheriffs, police officers, medical examiners, city and town officials, and others; applicants for federal assistance, permits, licenses, and other approvals; representatives from a federally recognized Indian tribe; the State Historic Preservation Officer; the Tribal Historic Preservation Officer; and the Advisory Council on Historic Preservation.
Consultation is usually more than a letter notifying a tribe about an undertaking, a "legal notice" in the local newspaper, or any other form of unilateral communication. Consultation involves open and candid dialogue among all the consulting parties. The participants work toward resolving the effects of the undertaking so that cultural resources are preserved and tribal sovereignty rights are respected.
Why Is Tribal Consultation Important?
Tribal consultation is a legal requirement designed to protect Native American historic and cultural resources. The goal of consultation is to identify and address any concerns from modern descendants about potential effects to places of cultural and historical significance such as an archeological site or a traditional cultural property. Engaging in open and candid dialogue is an effective way to obtain such information. Ultimately, this bilateral communication helps everyone gain a better understanding of the resources that contribute to our state's rich heritage.
1 National Park Service and U.S. Department of the Interior, Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act, 63 FR 20495-2058 (Washington, D.C.: National Park Service and U.S. Department of Interior 1998), 30.