Tribal Consultation Guidelines FAQ

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 Related Websites, 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.