Tribal Consultation Guidelines

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.

Section 106

If a project involves federal funds, permits, licenses, or lands and it has a potential effect on Native American historic or cultural resources, you may be required to conduct consultation with Indian tribes as stipulated in Section 106 of the National Historic Preservation Act (U.S. Code 16, §470, et seq.).

There are a number of ways that Section 106 regulations could apply during the course of a project. As a rule of thumb, plan Section 106 compliance activities any time there is federal involvement.

Consultation may be necessary if the project encounters, alters, or has an adverse effect on Native American historical and cultural resources, which include, but are not limited to, human remains, funerary objects, historic structures, sacred sites, and traditional cultural properties. Here are a few example projects where consultation may be necessary under Section 106:

• Project requires a Section 404 permit from the U.S. Army Corps of Engineers for work that will result in the discharge of fill material in a navigable river.
• Project receives a Community Block Development Grant from the U.S. Department of Housing and Urban Development.
• Project receives federal funding for utility work, including, but not limited to, sewer, telephone, and electrical lines.

More information about the Section 106 process can be found on the Advisory Council on Historic Preservation website.

NAGPRA

The Native American Graves Protection and Repatriation Act (NAGPRA) (U.S. Code 25 §3001, et seq.) includes provisions for intentional and inadvertent discoveries of Native American cultural items on federal and tribal lands. Cultural items include, but are not limited to, Native American human remains, funerary objects, sacred objects, and items of cultural patrimony.

If authorities take possession of human remains and later it is determined that they are not part of a crime scene, then NAGPRA may still apply.

See NAGPRA Flowchart for more information.

Texas Health and Safety Code

Discovery of human remains may be subject to the jurisdiction of the Texas Health and Safety Code (Title 8, Chapters 711–714). Though consultation with Indian tribes is not legally required under the Health and Safety Code, the Texas Historical Commission (THC) encourages consultation in the event of intentional or inadvertent discoveries of human remains and funerary objects to ensure that these items are dealt with properly and respectfully.

See Texas Health and Safety Code Flowchart for more information.

For more information on reporting unknown or abandoned cemeteries, see Notice of Existence of Cemetery on the THC website.

Federal Laws, Regulations, Executive Documents, and Court Decisions

Consultation is grounded in the government-to-government relationship established by the U.S. Constitution, treaties, statutes, case law, and policy. The federal government has a trust responsibility to protect tribal sovereignty, self-determination, assets and resources, and treaty and other reserved rights. Executive orders published by current and past presidents reaffirm this responsibility and the need for consultation at the government-to-government level.

• National Historic Preservation Act of 1966, as amended (Public Law 89-665; U.S. Code 16, §470, et seq.) The National Historic Preservation Act (NHPA) is the predominant preservation legislation in the United States. Section 106 of the NHPA directs federal agencies and recipients of federal funds, permits, and licenses as well as those working on federal lands to take into account the effects of an undertaking on historic properties. The implementing regulations of Section 106 can be found in Title 36, Part 800 of the Code of Federal Regulations.
• National Environmental Policy Act of 1969, as amended (Public Law 91-190; U.S. Code 42, §4321) The National Environmental Policy Act (NEPA) requires federal agencies to assess the effects of their proposed actions on the natural and physical environment. Specifically, for major federal actions that have a significant effect on the quality of the human environment, NEPA directs agencies to produce Environmental Impact Statements and provide detailed explanations regarding any adverse effects, possible alternatives to the proposed action, the relationship between the short-term use of an area and its long-term maintenance and productivity, and any irreversible or irretrievable commitments on resources.
• Indian Self Determination and Education Assistance Act (1975) (Public Law 93-368; U.S. Code 25, §450) The Indian Self Determination and Education Assistance Act (ISDEAA) gives tribes the opportunity to plan, conduct, and administer certain federal programs and services for their communities. These include health care, education, housing, infrastructure, and government administration. The ISDEAA allows tribes to enter into contracts with the U.S. Secretary of the Interior regarding the management of these programs and makes grants available to tribes to facilitate these programs and services.
• American Indian Religious Freedom Act (1978) (Public Law 95-341; U.S. Code 42, §1996) The American Indian Religious Freedom Act (AIRFA) protects and preserves the traditional religions and belief systems of American Indians. AIRFA directs federal agencies to work with Indian tribes on policy and procedures to achieve this goal. AIRFA provisions cover access to sacred sites, the use and possession of sacred objects, and the freedom of American Indians to practice traditional ceremonies and rites.
• Archaeological Resources Protection Act (1979) (Public Law 96-95; U.S. Code 16, §470aa-mm) The Archaeological Resources Protection Act (ARPA) protects archeological resources on federal public lands. It establishes penalties for the removal of, damage to, sale, purchase, exchange, or transport of archeological resources recovered from federal lands. ARPA also gives federal land managers authority to issue permits for archeological studies on Indian tribal and federal public lands. 
• Native American Graves Protection and Repatriation Act (1990) (Public Law 101-601; U.S. Code 25, §3001, et seq.) The Native American Graves Protection and Repatriation Act (NAGPRA) defines a process for the return of Native American human remains and cultural items such as funerary and sacred objects and objects of cultural patrimony that are in the possession of museums and other institutions. NAGPRA also specifies provisions for the discovery of Native American human remains and cultural items on federal and tribal lands and establishes penalties for non-compliance and trafficking of these items. All public and private museums and institutions that receive federal funding must comply with NAGPRA. 
• Presidential Memorandum on Government-to-Government Relations (1994) President Clinton's 1994 memorandum on government-to-government consultation outlines principles that executive departments and agencies must follow in their interactions with Native American tribal governments. 
• Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995) The court, in Pueblo of Sandia v. United States, found that federal agency officials did not make a "reasonable and good faith effort" to identify and evaluate the effects of an undertaking on traditional cultural properties. This ruling set a precedent for the use of "reasonable" and "good faith" as criterions to evaluate an agency's level of effort.
• Executive Order No. 13007, Indian Sacred Sites (1996) Executive Order No. 13007 requires federal agencies to consult with Indian tribes concerning the access, use, and protection of sacred sites.
• Executive Order No. 13175, Consultation and Coordination With Indian Tribal Governments (2000) Executive Order No. 13175 directs federal agencies to develop an "accountable process" of conducting consultation with Indian tribes that respects Indian tribal self-government and sovereignty, honors tribal treaty and other rights, and strives to meet the responsibilities that arise from the unique legal relationship between the federal government and Indian tribal governments.
• President Obama's 2009 Memorandum on Tribal Consultation directs agency officials to provide detailed plans of action regarding the implementation of directives in Executive Order No. 13175.
• President Biden's 2021 Memorandum on Tribal Consultation and Strengthening Nation to Nation Relationships 2021

Texas Laws and Regulations

• Antiquities Code of Texas (1969), as amended (Natural Resources Code, Title 9, Chapter 191) The Antiquities Code is the governing body of regulations relating to the protection and preservation of all sites, objects, buildings, shipwrecks, and locations of historical, archeological, educational, or scientific interest within the jurisdiction of the State of Texas. It requires state agencies and political subdivisions of the state, including, but not limited to, cities, counties, river authorities, municipal utility districts, and school districts, to notify the Texas Historical Commission (THC) of any action on public land that has the potential to disturb recorded historic or archeological sites. The THC issues antiquities permits that authorize archeological studies and work proposed at designated locations.
• Texas Health and Safety Code (1989), Provisions Relating to Cemeteries (Health and Safety Code, Title 8, Chapters 711–714) Section 711 of the Texas Health and Safety Code lists definitions and regulations regarding the establishment, maintenance, and disturbance of cemeteries, human remains, and funerary objects on public and private lands within the State of Texas. In 2009, amendments to the Texas Health and Safety Code clarified that legal protection extended to interments of any age or cultural affiliation.

Consultation is grounded in the government-to-government relationship established by the U.S. Constitution, treaties, statutes, case law, and policy. The federal government has a trust responsibility to protect tribal sovereignty, self-determination, assets and resources, and treaty and other reserved rights. Executive orders published by current and past presidents reaffirm this responsibility and the need for consultation at the government-to-government level.

• National Historic Preservation Act of 1966, as amended (Public Law 89-665; U.S. Code 16, §470, et seq.) The National Historic Preservation Act (NHPA) is the predominant preservation legislation in the United States. Section 106 of the NHPA directs federal agencies and recipients of federal funds, permits, and licenses as well as those working on federal lands to take into account the effects of an undertaking on historic properties. The implementing regulations of Section 106 can be found in Title 36, Part 800 of the Code of Federal Regulations.
• National Environmental Policy Act of 1969, as amended (Public Law 91-190; U.S. Code 42, §4321) The National Environmental Policy Act (NEPA) requires federal agencies to assess the effects of their proposed actions on the natural and physical environment. Specifically, for major federal actions that have a significant effect on the quality of the human environment, NEPA directs agencies to produce Environmental Impact Statements and provide detailed explanations regarding any adverse effects, possible alternatives to the proposed action, the relationship between the short-term use of an area and its long-term maintenance and productivity, and any irreversible or irretrievable commitments on resources.
• Indian Self Determination and Education Assistance Act (1975) (Public Law 93-368; U.S. Code 25, §450) The Indian Self Determination and Education Assistance Act (ISDEAA) gives tribes the opportunity to plan, conduct, and administer certain federal programs and services for their communities. These include health care, education, housing, infrastructure, and government administration. The ISDEAA allows tribes to enter into contracts with the U.S. Secretary of the Interior regarding the management of these programs and makes grants available to tribes to facilitate these programs and services.
• American Indian Religious Freedom Act (1978) (Public Law 95-341; U.S. Code 42, §1996) The American Indian Religious Freedom Act (AIRFA) protects and preserves the traditional religions and belief systems of American Indians. AIRFA directs federal agencies to work with Indian tribes on policy and procedures to achieve this goal. AIRFA provisions cover access to sacred sites, the use and possession of sacred objects, and the freedom of American Indians to practice traditional ceremonies and rites.
• Archaeological Resources Protection Act (1979) (Public Law 96-95; U.S. Code 16, §470aa-mm) The Archaeological Resources Protection Act (ARPA) protects archeological resources on federal public lands. It establishes penalties for the removal of, damage to, sale, purchase, exchange, or transport of archeological resources recovered from federal lands. ARPA also gives federal land managers authority to issue permits for archeological studies on Indian tribal and federal public lands.
• Native American Graves Protection and Repatriation Act (1990) (Public Law 101-601; U.S. Code 25, §3001, et seq.) The Native American Graves Protection and Repatriation Act (NAGPRA) defines a process for the return of Native American human remains and cultural items such as funerary and sacred objects and objects of cultural patrimony that are in the possession of museums and other institutions. NAGPRA also specifies provisions for the discovery of Native American human remains and cultural items on federal and tribal lands and establishes penalties for non-compliance and trafficking of these items. All public and private museums and institutions that receive federal funding must comply with NAGPRA. 
• Presidential Memorandum on Government-to-Government Relations (1994) President Clinton's 1994 memorandum on government-to-government consultation outlines principles that executive departments and agencies must follow in their interactions with Native American tribal governments. 
• Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995) The court, in Pueblo of Sandia v. United States, found that federal agency officials did not make a "reasonable and good faith effort" to identify and evaluate the effects of an undertaking on traditional cultural properties. This ruling set a precedent for the use of "reasonable" and "good faith" as criterions to evaluate an agency's level of effort. 
• Executive Order No. 13007, Indian Sacred Sites (1996) Executive Order No. 13007 requires federal agencies to consult with Indian tribes concerning the access, use, and protection of sacred sites.
• Executive Order No. 13175, Consultation and Coordination With Indian Tribal Governments (2000) Executive Order No. 13175 directs federal agencies to develop an "accountable process" of conducting consultation with Indian tribes that respects Indian tribal self-government and sovereignty, honors tribal treaty and other rights, and strives to meet the responsibilities that arise from the unique legal relationship between the federal government and Indian tribal governments.
• President Obama's 2009 Memorandum on Tribal Consultation directs agency officials to provide detailed plans of action regarding the implementation of directives in Executive Order No. 13175.
• President Biden's 2021 Memorandum on Tribal Consultation and Strengthening Nation to Nation Relationships 2021

Texas Laws and Regulations

• Antiquities Code of Texas (1969), as amended (Natural Resources Code, Title 9, Chapter 191) The Antiquities Code is the governing body of regulations relating to the protection and preservation of all sites, objects, buildings, shipwrecks, and locations of historical, archeological, educational, or scientific interest within the jurisdiction of the State of Texas. It requires state agencies and political subdivisions of the state, including, but not limited to, cities, counties, river authorities, municipal utility districts, and school districts, to notify the Texas Historical Commission (THC) of any action on public land that has the potential to disturb recorded historic or archeological sites. The THC issues antiquities permits that authorize archeological studies and work proposed at designated locations.
• Texas Health and Safety Code (1989), Provisions Relating to Cemeteries (Health and Safety Code, Title 8, Chapters 711–714) Section 711 of the Texas Health and Safety Code lists definitions and regulations regarding the establishment, maintenance, and disturbance of cemeteries, human remains, and funerary objects on public and private lands within the State of Texas. In 2009, amendments to the Texas Health and Safety Code clarified that legal protection extended to interments of any age or cultural affiliation.

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.

Tips for Tribal Consultation

• Talk early and often. Failure to consult with the appropriate parties may result in significant project delays. 
• Get informed and stay informed. Brief yourself or your representatives on tribal histories and contemporary issues. Many tribes provide brief histories on their websites.
• Document your efforts from the planning stages through final meetings.
• Consider appointing a special liaison or point of contact if you will regularly consult with Indian tribes. This will help streamline the process for all consulting parties.
• Recognize, respect, and encourage cultural differences. Native American concepts of how and when meetings should occur may differ from those in mainstream business practice.
• Be honest. Don’t make promises that you or your agency/sponsor cannot keep.
• Allow adequate time for participant groups to consider the project and its implications. Consultation is a process. It is not a single meeting. 
• Pay attention to word choices. For example, the term “prehistoric” may be offensive to native peoples as it implies that tribes had no “history” prior to contact with Europeans. 
• Share a meal or plan a social outing. Don’t restrict your time to just business; engage and learn from native participants to get a better understanding of their perceptions of the matters at hand. 
• Consider bringing gifts. Check with your agency/sponsor and applicable state and federal laws to determine what is appropriate. 
• Ask permission from tribal representatives if you plan to take photographs. 
• Be aware of tribal political changes. Tribal governments, like our national and state government, have periodic leadership changes. 

Brief History of Tribal Sovereignty

This brief history provides basic background information on the regulatory interactions between American Indian tribes and Euro-American settlers. It is not exhaustive.

• Colonial Era (1533–1775): During this period, treaty-making was the primary form of negotiation with Indian tribes, who were afforded a similar status as colonial governments. Treaties sought to end hostilities, establish the boundaries of Indian lands, and regulate trade.
• U.S. Federal Era (1776–1823): Treaty-making continued in this period. Laws of the new nation regulated interaction between Indian and non-Indian peoples, especially concerning trade and land transactions (e.g., Trade and Non-Intercourse Act of 1790). Article I, Section 8 of the U.S. Constitution gave power to the Congress to "regulate Commerce with . . . the Indian Tribes."
• Removal Era (1823–1871): The beginning of this period is characterized by Chief Justice John Marshall's opinions, which set the precedent that Indian tribes were "domestic dependent nations" and that only the federal government had authority over these nations. Another significant enactment, the Indian Removal Act of 1830, stipulated the removal of a number of Indian groups to western reservations. The end of this period is marked by the Appropriations Act of 1871, which ended U.S. treaty-making with Indian tribes.
• Assimilation Era (1871–1934): This period is characterized by policies aiming to integrate Indian peoples into mainstream American society. The General Allotment/Dawes Act of 1887, which divided reservation lands into individual parcels, encouraged independent land holding and agriculture. "Surplus" lands were sold to non-Indians. The Indian Citizenship Act of 1924 conferred citizenship on Indian people who had not already gained that status through service in the armed forces, assimilation, or other methods.
• Reorganization Era (1934–1953): In 1934, the Wheeler-Howard/Indian Reorganization Act sought to restore some vestiges of tribal sovereignty lost during the Assimilation Era. Tribes were encouraged to establish formal governments and constitutions.
• Termination Era (1953–1968): House Concurrent Resolution 108 reversed federal policy of tribal self-governance and abolished more than 50 tribal governments. This period also is characterized by federally funded programs to move individuals from the reservation to major cities.
• Self-Determination Era (1968–Present): Stirring of Indian consciousness following the Termination Era led to a dramatic increase in Native American advocacy for self-governance. In 1978, the Bureau of Indian Affairs established the modern Federal Acknowledgment Process. As of April 12, 2011, 565 tribes had been federally recognized.

Glossary

• Agency: An administrative unit of government receiving federal or state support.
• Consultation: The process of requesting, discussing, and considering the opinion of others, and when possible, seeking agreement on the management and identification of historic properties. Several laws require agencies to consult with federally recognized Indian tribes if a project will have an effect on tribal historical or cultural resources. This requirement applies to all tribes with historic ties to an area, not just those with reservations within current boundaries of the state.
• Federally Recognized Indian Tribe: An Indian tribe, nation, or other organized group or community recognized by the U.S. Secretary of Interior as eligible for certain federal government services and benefits. A list of federally recognized tribes is published annually in the Federal Register.
• Government-to-Government: The nature of the relationship between the federal government and Indian tribal governments, acknowledging tribal sovereignty and rights of self-governance.
• Memorandum of Agreement (MOA): An agreement document that records specific terms and conditions to resolve known adverse effects on historic properties.
• Museum (for NAGPRA purposes): "[A]ny institution or state or local government agency (including institutions of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items." ¹
• Public Land: Any lands owned or administered by the federal or state government, including political subdivisions of a state such as cities, towns, and counties.
• Programmatic Agreement (PA): An agreement document that records specific terms and conditions to streamline or improve the standard 106 process for an agency program.
• Repatriation: The process through which American Indian cultural items, including human remains, funerary objects, and sacred objects, are returned to lineal descendants or culturally affiliated Indian tribes.
• Traditional Cultural Property (TCP): Places that derive significance from their association with cultural practices or beliefs of a living community.
• Tribal Historic Preservation Officer (THPO): A designated tribal official who has undertaken some or all of the responsibilities of the State Historic Preservation Officer on tribal land. THPOs also may develop and implement historic preservation plans, coordinate repatriation efforts, develop cultural/heritage tourism and educational outreach programs, and direct other preservation activities.
• Trust Relationship: The fiduciary responsibilities of the federal government to protect tribal sovereignty, self-determination, assets and resources, and treaty and other reserved rights.
• Undertaking: "A project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; and those requiring a federal permit, license or approval."

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.

Determining Tribal Contacts

Federal law and policy requires consultation to occur with Indian tribes that have been federally recognized. Federally-Recognized Indian Tribes are those that have been formally acknowledged by the Bureau of Indian Affairs' Office of Federal Acknowledgment, the U.S. Congress, or a federal court as descendants of an historical Native American tribe. Federally-Recognized Indian Tribes have rights of self-governance and are eligible to receive services and participate in programs offered by the federal government. Federal agencies and those to whom they delegate their responsibilities for consultation are not required to consult with non-federally recognized groups; however, these groups may have valuable insight that pertains to specific projects. Non-federally recognized groups have a legal right to comment on projects as "interested parties."

Currently, Texas has three tribal communities living within state boundaries and at least 26 other communities with ties to Texas. Depending on the scope and nature of your project, you may have to consult with multiple tribes.

To determine the tribes with which you should consult:

• Refer to tribal Area of Interest Maps.
• Consult the National Park Service (NPS) NAGPRA database or tribal websites for contact information.
• Contact the Southern Plains Regional Office of the Bureau of Indian Affairs.
• Browse local historical and archival documents for references to Indian tribes that have inhabited the project area.

Many tribes have appointed Tribal Historic Preservation Officers (THPOs) or other representatives to oversee preservation efforts on tribal and ancestral lands and coordinate repatriation programs. The National Association of Tribal Historic Preservation Officers maintains a list of THPOs recognized by the NPS as having assumed the duties of State Historic Preservation Officers on tribal lands.

• If a tribe has a designated THPO or point of contact for historic preservation activities, contact that individual about the project first.
• Additionally, contact the tribe's elected executive officials, such as a tribal council chairperson, governor, or president.

Area of Interest

Of the 29 Federally-Recognized Tribes that maintain a connection to the State of Texas, only three are located in the state. Please be aware that tribal interest areas may change as new discoveries provide information about historic tribal territories. Below is a list of tribes with known interests in Texas. (Refer to Tribal Contacts List)

• Absentee Shawnee Tribe of Oklahoma
• Alabama-Coushatta Tribe of Texas
• Alabama-Quassarte Tribal Town
• Apache Tribe of Oklahoma
• Caddo Nation
• Cherokee Nation
• Cheyenne & Arapaho Tribes
• Choctaw Nation
• Comanche Nation
• Coushatta Tribe of Louisiana
• Delaware Nation
• Jena Band of Choctaw Indians
• Jicarilla Apache Nation
• Kialegee Tribal Town
• Kickapoo Traditional Tribe of Texas
• Kickapoo Tribe of Oklahoma
• Kiowa Tribe of Oklahoma
• Mescalero Apache Tribe
• Muscogee (Creek) Nation
• Osage Nation
• Quapaw Tribe
• Seminole Nation of Oklahoma
• Shawnee Tribe
• Thlopthlocco Tribal Town
• Tonkawa Tribe
• Tunica-Biloxi Tribe
• United Keetoowah Band of Cherokee Indians
• Wichita and Affiliated Tribes
• Ysleta Del Sur Pueblo

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.

Q: How do I know if I have to consult with Indian tribes?

A: Whether or not you have to consult with Indian tribes depends on which laws, if any, apply to your project (see next question below). If your project or activity occurs on federal, state, tribal, or public lands, or if it requires funding, licensing, permitting, or other involvement by the federal government, and if your project may have an adverse effect on Native American cultural or historic resources, you may have to consult with Indian tribes. Additionally, if you are an institution that receives federal funding and is in possession of Native American human remains or cultural items, you may have to consult with Indian tribes in order to comply with NAGPRA regulations.

Q: How do I know which laws apply to my project?

A: Section 106 of the National Historic Preservation Act applies to federal or federally assisted undertakings on federal, state, tribal, public, and private lands where an undertaking has the potential to have an effect on historic properties. This includes, but is not limited to, districts, sites, buildings, structures, or objects.

The Antiquities Code of Texas and the Texas Health and Safety Code apply to projects occurring on non-federal lands in Texas. A project may be subject to the jurisdiction of the Antiquities Code of Texas if it will have an effect on a State Antiquities Landmark. If you discover human remains on non-federal lands, you may be subject to the jurisdiction of the Texas Health and Safety Code.

NAGPRA applies to intentional or inadvertent discoveries of Native American human remains and cultural items on federal or tribal lands. NAGPRA also applies to federally funded institutions such as museums and universities that are in possession of Native American human remains and cultural items. If a federally funded institution takes possession of Native American human remains or cultural items, it becomes subject to NAGPRA regulations.

Q: How do I know if I am a museum for NAGPRA purposes?

A: Any institution, including state or local government agencies and institutions of higher learning, that receives federal funds and has possession of, or control over, Native American cultural items falls under the jurisdiction of NAGPRA.

Q: I am a private landowner and have discovered a site on my property. Do I need to consult with Indian tribes?

A: There is no legal requirement for consultation with Indian tribes for discoveries on privately-owned lands in Texas; however, you may be subject to the jurisdiction of the Texas Health and Safety Code if human remains are found on your property.

Q: What are my responsibilities for consultation?

A: You must make a reasonable and good-faith effort to take into account the adverse effects of your project upon Native American cultural or historic resources. Depending on the applicable laws and nature of your project, you have a limited time frame to notify Indian tribes and other consulting parties about discoveries or any adverse effects.

Q: Do I have to consult with Indian groups that are not federally recognized?

A: There is no legal requirement to consult with Indian groups or tribes that are not recognized by the federal government; however, non-federally recognized tribal groups may comment on a project or undertaking as an "interested party."

Q: Who do I contact within a tribe about consultation?

A: If the tribe has a Tribal Historic Preservation Officer (THPO) or other representative appointed to oversee preservation activities, this should be your first point of contact. If the tribe does not have a THPO or point of contact for historic preservation activities, you should contact tribal executives or leaders such as a tribal council chairperson, president, or traditional religious leader.

Q: Should I contact tribes only when an effect will occur on significant sites?

A: A site's significance is subjective; what one person may consider insignificant may have special meaning or importance to another person. While it is best to initiate consultation for all sites and properties that may potentially suffer adverse effects by a project, some tribes have identified specific types of projects or resources for which they do not need to be consulted. It is only through consultations with Indian tribes that you can determine what projects require consultation, which tribes need to be consulted, and what potential effects this project will have on historic and/or cultural resources.

Q: Can I have an archeological/environmental contractor conduct the consultation meetings?

A: While archeological/environmental contractors should not conduct consultation meetings, they can help to organize them. Consultations should be conducted on a government-to-government basis (i.e., between a federal agency official and a tribal government official); however, federal agencies may delegate their legal responsibilities for consultation to state, local, or tribal officials. The level of authority required for consultation acknowledges tribal sovereignty as well as a unique legal status as an Indian tribe.

Q: Who pays for travel involved with consultations?

A: Although there is no requirement to travel to conduct consultation meetings, the consultation process can be more efficient if agencies or organizations travel to meet with Indian tribes. Tribal representatives should never be expected to pay to attend consultation meetings. Many tribal groups do not have the time or resources to travel for consultation meetings; however, this should not be interpreted as a lack of interest.

Q: When is consultation complete?

A: Consultation is an ongoing process. Rarely are all concerns addressed in one meeting. There are no legal stipulations regarding the duration of consultation meetings, but consulting parties are expected to engage in open and candid dialogue about the project, its effects, and possible alternatives and resolutions.

Q: What if we cannot come to an agreement during consultation meetings?

A: If consultation meetings with Indian tribes reach an impasse during the Section 106 process, the Advisory Council for Historic Preservation (ACHP) can be consulted. For issues regarding NAGPRA, contact David Tarler, Designated Federal Officer for the NAGPRA Review Committee.

Q: What if I have additional questions?

A: The ACHP maintains a Working with Section 106 section on the agency's website that offers valuable information and guidance on that process. Questions related to the NAGPRA should be directed to the National NAGPRA Program. If you receive funding, permits, or licenses from a federal agency and would like more information about its policies and procedures regarding Native American consultation, see Additional Resources below, which includes a list of federal agency and other websites related to tribal and cultural resource policies. Many agencies have points of contact for historic preservation-related issues. Finally, any questions related to the Antiquities Code of Texas or the Texas Health and Safety Code should be directed to the Texas Historical Commission (THC). Consultation-specific inquiries should be directed to Archeology Division at the THC.

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.

Tribal Consultation Related Websites

Federal Agencies

The White House

• Presidential Memorandum on Uniformed Standards for Tribal Consultation (2022)
• Best Practices for Identifying and Protecting Tribal Treaty and Reserved Rights (2022)
• Guidance on Indigenous Knowledge (2022)
• Tribal Nations Summit Progress Report 2022
• The White House Memorandum on Tribal Consultation 2021
• Executive Orders

Environmental Protection Agency (EPA)

• American Indian Tribal Portal
• Consultation and Coordination

Federal Communications Commission (FCC)

• Office of Native Affairs and Policy

Federal Emergency Management Agency (FEMA)

• Tribal Affairs

Federal Energy Regulatory Commission (FERC)

• Tribal Relations
• Policy Statement on Consultation with Indian Tribes (2019)

U.S. Department of Agriculture (USDA)

• USDA Tribal Policy Documents
  • Office of Tribal Relations
  • Tribal Consultations
  • Policy and Intergovernmental Affairs
  • Indigenous Food Sovereignty Initiative
• Natural Resources Conservation Service (NRCS)
  • Partnerships with Tribal Nations
  • American Indians and Alaska Natives Policy (Title 410, Part 405)
  • Indigenous Stewardship Methods and NRCS Conservation Practices
• Rural Development 
  • Tribal Relations
  • Tribal Historic Preservation Officers
  • Tribal Outreach

U.S. Department of Defense (DoD)

• Native American Affairs
  • Training
  • Policy, Law, and Regulations
  • DoD Plan of Action to Implement the Polices and Directives of E.O. 13175
  • Consultation Resources
  • Programs and Collaboration Opportunities
  • Native Americans in the Military
• U.S. Air Force Interactions with Federally Recognized Tribes
• U.S. Army Corps of Engineers Tribal Nations

U.S. Department of Energy (DoE)

• Strengthening Tribal Consultation and Engagement with Tribal Leaders
• American Indian Tribal Government Interactions and Policy (DOE Order 144.1: 2009)
• Office of Indian Energy
• Environmental Management Tribal Programs in Indian Country

U.S. Department of Housing and Urban Development (HUD)

• HUD Tribal Consultation
• Tribal Consultation Policy (2016)
• Tribal Directory Assessment Tool (TDAT)

U.S. Department of the Interior (DoI)

• Tribal Consultation
• Indian Affairs
• Detail Plan to Improve Interior's Implementation of E.O. 13175
• Bureau of Indian Affairs (BIA)
  • Office of Federal Acknowledgement
  • Federally Recognized Tribes by state
  • Tribal Leaders Directory
• Bureau of Land Management (BLM) 
  • Cultural Heritage
  • Land Records
  • Tribal Consultation
• Bureau of Ocean Energy Management (BOEM)
  • Tribal Engagement
• Bureau of Reclamation (USBR)
  • Cultural and Paleontological Resources
  • Cultural Resources Policies
  • USBR NAGPRA
• National Parks Service (NPS)
  • Office of Native American Affairs
  • Tribal Plant Gathering in National Parks Tribal Consultation
    • National NAGPRA Program website
    • Best Practices for Tribal consultation (NATHPO)
    • Section 1.11 (Relationship with American Indian Tribes) of Management Policies 2006
  • Historic Preservation Homepage
  • Tribal Historic Preservation Program
• U.S. Fish and Wildlife Service
  • National Native American Programs
  • Native American Liaisons

U.S. Department of Transportation (DoT)

• Tribal Consultation Plan
• Tribal Transportation
• Federal Highway Administration (FHWA)
  • Tribal Consultation
• Federal Aviation Administration (FAA) 
  • Tribal Consultation Policy and Procedures
• Maritime Administration (MARAD)

Tribal News Outlets

• Indianz.com News
• Indian Country Today
• Native America Calling
• Native News Online
• Native Public Media
• Turtle Talk

Other Websites

Advisory Council on Historic Preservation

• ACHP Preservation Policy
• Indian Tribes & Native Hawaiian Organizations Overview
• Office of Tribal and Indigenous Peoples
• Indigenous Knowledge
• Training and Guidance
  • e-Learning
    • Early Coordination with Indian Tribes for Infrastructure Projects (Free)
• Consulting with Indian Tribes in the Section 106 Review Process (2021)
• Early Coordination with Indian Tribes During Pre-Application Processes (2019)
• Policy Statement Regarding Burial Sites, Human Remains, and Funerary Objects (2023)

Handbook of Federal Indian Law

National Association of Tribal Historic Preservation Officers (NATHPO)

National Congress of American Indians

National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties

U.S. Code, Title 25 "Indians"

United Nations Declaration on the Rights of Indigenous Peoples

Additional Resources

If you need additional assistance with the consultation process or determining with which tribes you need to consult, contact the following for more information.

Bureau of Indian Affairs
Southern Plains Regional Office
Robert (Gabe) Morgan, Deputy Regional Director - Trust Services
Terry Bruner, Deputy Regional Director - Indian Services
WCD Office Complex
P.O. Box 368
(Physical: 1 Mile North on Hwy 281)
Anadarko, OK 73005
Phone: 405.247.6673
Fax: 405.247.5611

Texas Historical Commission
Archeology Division
P.O. Box 12276
Austin, TX 78711
Phone: 512.463.6096
Fax: 512.463.8927