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Cultural Resources Management--Tribal Rights, Roles, Consultation, and Other Interests (A Developer's Perspective)

Walter E. Stern, Federal Regulation of Cultural Resources, Wildlife, and Waters of the U.S.

Native American tribes, Pueblos and other groups (collectively referred to as “tribes”) are important stakeholders in any energy development project located near Indian reservations, Indian lands, and in or near aboriginal lands which were occupied by Native Americans prior to the treaty-making era.2 This paper will examine primarily the roles that tribes may play in the development of projects on federal public lands. This paper will consider: (a) consultation with tribes, tribal groups, and tribal members under the National Environmental Policy Act (“NEPA”),3 the National Historic Preservation Act (“NHPA”) and its all important Section 106 process,4 the Native Graves Protection and Repatriation Act (“NAGPRA”)5 and related statutory schemes; (b) sacred sites and religious freedom considerations; and (c) some practical recommendations for working with tribes, including the benefits of early coordination with tribal stakeholders, including tribal governments and tribal non-governmental organizations. This paper does not consider more generalized consultation policies, including (i) government-to-government consultation not arising from specific statutory obligations, (ii) the Department of the Interior's December, 2011 “Tribal Consultation Policy”,6 or (iii) state law-based consultation obligations. Please consider that state agencies that may be involved in permitting projects