Mississippi Administrative Code › Title 16 - History, Humanities and Arts › Part 3 - Historic Preservation Division › Chapter 12 - Mississippi Standards and Guidelines for Archaeological Investigations › Rule 16-3-12.12.1 - Legal Requirements of Consultation with Tribes

Current through June 25, 2024
The legal obligation of Federal Agencies to consult with
				  Tribes on a government-to-government basis begins in the Constitution, in
				  Article I Section 8, also known as the Commerce Clause, where Congress is
				  empowered to regulate commerce with foreign governments, between the states and
				  with the Indian Tribes. In Federal Indian policy, it is unclear whether Tribes
				  are more like foreign nations or like states, but clearly, the government of
				  the United States has an obligation to consult with Tribes as sovereign nations
				  on matters of interest and concern to Tribes. The constitutional mandate is
				  expressed in statutes, executive orders and the policies of the several Federal
				  Agencies that touch upon Tribal matters. In brief these are:
1. NHPA requires consultation with Indian
				Tribes on places of traditional religious and cultural significance, in
				identifying and determining treatment modalities within the area of potential
				effect of an undertaking. Consultation is also required with Tribes that have
				assumed historic preservation duties as THPOs for sites on Tribal land and with
				Tribes on the mitigation of effects to historic and sacred places on federal
				land. Section 101(d)(6)(B) of the act requires the Agency official to consult
				with any Indian tribe or Native Hawaiian organization that attaches religious
				and cultural significance to historic properties that may be affected by an
				undertaking. This requirement applies regardless of the location of the
				historic property. Such Indian tribe or Native Hawaiian organization shall be a
				consulting party.
2. National
				Environmental Policy Act (NEPA) is directed at the impacts to the human
				environment, which includes the social and cultural relationship of people to
				the physical environment. Under this law there is an obligation to consult with
				Tribes concerning impacts to sacred sites and on the mitigation of actions to
				sites of concern to Tribes that is not limited by the National Register
				eligibility criteria (
				36 C.F.R.
				60.4 )
3. Archaeological Resources Protection Act
				(ARPA) is a law directed at protecting "archaeological" sites for the important
				information that can be retrieved, but the law also requires Federal Agencies
				to notify Tribes of a permit for excavation on federal land that will include
				sites of religious or cultural importance to Tribes. On Indian lands, the
				federal Agency must have the permission of the Tribe to issue an ARPA permit.
				The federal government has an obligation to keep track of such items when
				excavated pursuant to a permit in the event that the "Indian owners" may want
				to retrieve them. All fines and civil penalties collected and all items seized
				from ARPA civil and criminal prosecutions arising from incidents on Indian
				lands must be remitted to the Tribe. The costs of reburial of human remains and
				funerary objects disrupted by looters will be added to the restitution sought
				from violators.
4. Native American
				Graves Protection and Repatriation Act (NAGPRA) requires that a general summary
				of the collection be disseminated to all possibly interested Tribes to
				facilitate consultation which can lead to the repatriation and to assist in the
				preparation of an itemized inventory of human remains and associated funerary
				items. On federal land, Agencies that do not consult with Tribes prior to
				exhumation of sites of importance to Tribes and develop an agreement for
				"Intentional Excavation," are punished by a mandatory 30 day cessation of work
				for each "Inadvertent Discovery," that is a find in the absence of a plan
				arrived at through consultation with the impacted Tribes. Consultation is also
				required to determine the means of transfer of repatriated items.
5. Executive Order 12875 (1993) Tribal
				Governance, specifies that the federal government must consult with Indian
				Tribal governments on matters that significantly or uniquely affect Tribal
				government. By Executive Memorandum of April 29, 1994, the federal government
				must consult with federally-recognized Tribal governments prior to taking
				actions that will affect those Tribal governments (See below for the current
				administration's Executive Memorandum on the Government-to-Government
				Relationship).
6. Executive Order
				12898 (1994) Environmental Justice, specifies that the federal Agency will
				consult with Tribal leaders on steps to be taken to insure that environmental
				justice requirements are applied to federally-recognized Tribes. This includes
				research to address issues of adverse environmental impact in areas of
				low-income and minority populations, which include Tribes generally and with
				regard to subsistence consumption of fish and wildlife, which pertain to Tribes
				exclusively.
7. Executive Order
				13007 (1996) Sacred Sites, applies on federal land and directs the Federal
				Agencies to accommodate access to and ceremonial use of Indian sacred sites by
				Indian religious practitioners, as well as to avoid adversely affecting the
				physical integrity of such sacred sites. Although Federal Agencies must consult
				with Tribes to learn the existence of places, which require management
				decisions to be made, the directive requires Agencies to maintain the
				confidentiality of sacred sites where appropriate for their protection.
8. Executive Order 13084 (1998)
				Consultation and Coordination with Indian Tribal Governments, reaffirms the
				unique government-to-government relationship between Agencies and Tribes. The
				Order makes it clear that the obligation is upon the federal government and not
				the Tribes to instigate and insure that consultation occurs on a timely basis.
				The consultation is defined as an activity to obtain meaningful and timely
				input from Tribes on matters that significantly or uniquely affect Tribal
				communities. In those instances where Tribal laws exist, the Federal Agencies
				are to defer to Tribes and waive Agency control. Further, rulemaking on matters
				of concern to Tribes should include consultation with Tribes, necessitating the
				development of consensual mechanisms to arrive at agreements. This Executive
				Order embodies the complete shift in the enfranchised status of Tribes in the
				post-1960 era of Tribal self-determination and sovereignty. (Superseded by E.O.
				13175)
9. Executive Order 13175
				(2000) Consultation with Indian Tribal Governments, would seem redundant, but
				appeared necessary where Agencies were slow to develop Tribal consultation
				policies and the courts were slow to enfranchise Tribes. This Order firmly
				establishes the policy of the administrative branch of government as one that
				institutionalizes regular and meaningful consultation with Tribes in the
				development of federal policies affecting Tribes. It directs that Agencies
				respect treaty rights and grants wide discretion to Tribes in self-governance
				and the development of Tribal policy. Further, this Order directs each Agency
				to develop a consultation process. * Executive Memorandum,
				Government-to-Government Relationship with Tribal Governments, (September
				2004), recognizes the unique legal and political relationship of Tribes, and
				reaffirms that each executive department and Agency fully respect the rights of
				self-government and self-determination in their working relationships with
				federally-recognized Tribal governments.