Section 106 & Tribal Consultation
What is an Indian tribe?
As defined in Section 301 of the National Historic Preservation Act (NHPA), an Indian tribe “means an Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is eligible for the special programs and services provided by the United States to Indians because of their status as Indians” (16 U.S.C. 470w).
As of December 5, 2003, there were 562 federally recognized Indian tribes listed by the Bureau of Indian Affairs, with those tribes based in at least 35 of the 50 states. In addition, there are thirteen Alaska Native Regional Corporations and some 200 Alaska Native Village Corporations created by the Alaska Native Claims Settlement Act. These Regional and Village Corporations are recognized as “Indians tribes” for NHPA purposes. For more information, see the complete list of federally recognized Indian tribes.
While Native Hawaiian organizations are not federally recognized Indian tribes, they are treated similarly as consulting parties in the Section 106 process. As defined in Section 301 of the NHPA, a Native Hawaiian organization “means any organization which (A) serves and represents the interests of Native Hawaiians; (B) has as a primary and stated purpose the provision of services to Native Hawaiians; and (C) has demonstrated expertise in aspects of historic preservation that are culturally significant to Native Hawaiians” (16 U.S.C. 470w). A Native Hawaiian is defined as “any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii” (16 U.S.C. 470w).
NHPA Section 106 Tribal Consultation Process
Tribal consultation is required in all steps of the Section 106 process when a federal agency undertaking may affect historic properties that are either (1) located on tribal lands, or (2) when any Indian tribe or Native Hawaiian organization attaches religious or cultural significance to the historic property, regardless of the property’s location.
When an undertaking occurs on tribal land, the federal agency must notify appropriate Indian tribes of the undertaking and give those tribal groups the opportunity to consult, should they wish to do so.
If a tribe has assumed State Historic Preservation Officer (SHPO) responsibilities for tribal lands by designating a Tribal Historic Preservation Officer (THPO), as provided for in NHPA Section 101(d)(2), then the federal agency shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties on tribal lands. (For more information about the THPO program, see the Advisory Council on Historic Preservation’s Tribal Historic Preservation Officers website.)
If a tribe has not assumed SHPO responsibilities by designating a THPO as provided for in NHPA Section 101(d)(2), then the federal agency shall consult with official representatives of the tribe as well as with the SHPO. Such Indian tribes have the same rights of consultation and concurrence that tribes with THPOs have, except that consultations about undertakings on tribal land shall be in addition to and on the same basis as consultation with the SHPO.
When an undertaking affects historic properties that are of religious and cultural significance to an Indian tribe or a Native Hawaiian organization, regardless of location on or off tribal land, the federal agency must notify appropriate Indian tribes or Native Hawaiian organizations of the undertaking and give those tribal groups the opportunity to consult, should they wish to do so.
NHPA, Section 101(d)(6)(A) establishes that historic properties of “traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion” in the National Register of Historic Places. Federal agencies are specifically instructed to consult with relevant Indian tribes or Native Hawaiian organizations when an undertaking may affect properties of traditional religious and cultural importance.
Federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes and Native Hawaiian organizations. The consultation requirement for properties of traditional religious and cultural importance applies regardless of the location of both the historic property and the Indian tribe or Native Hawaiian organization.
General principles for federal agencies in Section 106 tribal consultation include:
Federal agencies shall ensure that tribal consultation in the Section 106 process provides the Indian tribe or Native Hawaiian organization with a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.
It is the responsibility of the federal agency to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the Section 106 process.
Consultation should be conducted in a manner recognizing the unique government-to-government relationship that exists between the federal government and tribes, should be respectful of tribal sovereignty, and should be sensitive to the concerns and needs of the Indian tribe or Native Hawaiian organization.
(For additional guidance on the NHPA Section 106 tribal consultation process, also see the Advisory Council on Historic Preservation’s Native American Program: Guidance for Federal Agencies.)