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Cultural Resources Management in the United States: Tribal Rights, Roles, Consultation, and Other Interests (A Developer's Perspective)

Walter E. Stern, Proceedings of 59th Annual Rocky Mountain Mineral Law Institute (2013)

Native American tribes, pueblos, and other groups (collectively referred to as “tribes”) are important stakeholders in any energy development project located on or near Indian reservations, Indian lands, and in or near aboriginal lands that were occupied by Native Americans prior to the United States' treaty-making era.2 Tribal consent or consultation obligations in the United States are not unlike comparable requirements or concepts that arise under the United Nations Declaration on the Rights of [20A-3] Indigenous Peoples (UNDRIP);3 however, when operating in the United States it is important to recognize that obligations to obtain tribal consent or pursue tribal consultation arise not from UNDRIP, but rather from federal laws and regulations.
This chapter will examine primarily the roles that tribes may play in the development of projects on lands held in trust for tribes (Indian lands) and on public lands administered by the US. Bureau of Land Management (BLM) and US. Forest Service (Forest Service) (collectively, federal public lands). This chapter will consider: (1) consultation with tribes, tribal groups, and tribal members under the National Environmental Policy Act of 1969 (NEPA),4 the National Historic Preservation Act (NHPA)5 and its all-important section 106 process,6 the Native American Graves Protection and Repatriation Act (NAGPRA),7 and related statutory s