The United States has a unique legal and political relationship with Indian tribes and a special relationship with Alaska Native entities as provided in the Constitution of the United States, treaties, and federal statutes. These relationships extend to the federal government’s historic preservation activities, mandating that federal consultation with Native American tribes be meaningful, in good faith, and entered into on a government-to-government basis.
On September 23, 2004, President George W. Bush issued Executive Memorandum Government-to-Government Relationship with Tribal Governments recommitting the federal government to work with federally-recognized Native American tribal governments on a government-to-government basis and strongly supporting and respecting tribal sovereignty and self-determination.
Mandates for the federal government’s unique policies and relationship with Native American tribal governments are also codified in several Executive Orders:
Executive Order 13007 Indian Sacred Sites, issued by President Clinton in 1996, directed federal agencies to accommodate access to and ceremonial use of Native American sacred sites by Native American religious practitioners, as well as avoid adversely affecting the physical integrity of such sacred sites.
Executive Order 13175 Consultation and Coordination with Indian Tribal Governments, issued by President Clinton in 2000, recognized tribal rights of self-government and tribal sovereignty, and affirmed and committed the federal government to a work with Native American tribal governments on a government-to-government basis.
Tribes and Historic Preservation Law
Preservation and protection of Native American historic resources, at least archeological resources, dates back to at least the Antiquities Act of 1906, usually seen as the first federal historic preservation law in the United States.
More recent federal historic preservation laws mandate Native American tribal government involvement and consultation. These include:
- The Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, provides a process for museums and federal agencies to return certain Native American cultural items –-- human remains, funerary objects, sacred objects, and objects of cultural patrimony –-- to lineal descendants, culturally-affiliated Native American tribes, and Native Hawaiian organizations. Under Section 3 of the law, repatriation is mandated for Native American cultural items excavated or discovered on federal land after November 16, 1990.
- The Archeological Resources Protection Act (ARPA) , passed in 1979, requires federal agencies to consult with tribal authorities before permitting archeological excavations on tribal lands. It also mandates the confidentially of information concerning the nature and location of archeological resources, including tribal archeological resources.
- The American Indian Religious Freedom Act (AIRFA) [PDF], passed in 1978, affirms a national policy to protect and preserve for Native Americans their inherent right of freedom to believe, express, and exercise the traditional religions of indigenous America, including protecting and preserving access to sacred sites.
- The National Environmental Policy Act (NEPA) , passed in 1969, calls for the federal government to invite the participation of any affected Native American tribe in the environmental review process.
- The National Historic Preservation Act (NHPA) of 1996 of 1966, as amended in 1992, enhanced Native American tribal roles in historic preservation and created the Tribal Historic Preservation Officer (THPO) program. Federal agency obligation to consult with Native American tribal governments under Section 106 of NHPA.