The Department of the Navy (DON) operates on lands and in waters traditionally occupied by Native Americans (American Indian tribes and Alaska Native villages) and Native Hawaiians. Tribal boundaries in North America have shifted and widespread migration has occurred so that Native American groups that seem far removed geographically may have a traditional interest in assets and actions at present-day DON installations.
DON responsibilities regarding management and protection of and access to Native American and Native Hawaiian cultural resources are derived from Federal laws such as the National Historic Preservation Act of 1966, as amended (NHPA); the American Indian Religious Freedom Act of 1978 (AIRFA); the Archaeological Resources Protection Act of 1979, as amended (ARPA); the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA); the Religious Freedom Restoration Act of 1993 (RFRA); and the National Environmental Policy Act of 1969 (NEPA). Obligations are also defined in federal policies such as Executive Order 12898 Environmental Justice, Executive Order 13007 Indian Sacred Sites, Executive Order 13175 Consultation and Coordination with Indian Tribal Governments, the Presidential Memorandum dated 29 April 1994 Government to Government Relations with Native American Governments, and the Presidential Memorandum dated 26 January 2021 Tribal Consultation and Strengthening Nation-to-Nation Relationships. The key to effective compliance is consultation, a good faith dialogue through which information and opinions are respectfully and mutually exchanged.
The DON Cultural Resources Program provides assistance to all DON commands in implementing these laws and federal policies. Consultation with Indian tribes and Native Hawaiians Organizations (NHOs) should be consistent with the Department of Defense Instruction (DODI) 4710.02 DoD Interactions with Federally Recognized Tribes and DODI 4710.03 Consultation with Native Hawaiian Organizations (NHOs) of 2018. SECNAV Instruction 11010.14B Department of the Navy Policy for Consultation with Federally Recognized Indian Tribes, Alaska Native Tribal Entities, and Native Hawaiian Organizations implements DOD policy within the DON and encourages ongoing consultation. There is no simple, universal way of coordinating or consulting with Indian tribes and NHOs. Cultures and traditions vary, and indigenous governments and organizations differ from each other in their contemporary administrative structures and corporate cultures.
The Federal Government has a unique relationship with sovereign Indian tribes, with obligations deriving from treaties and statute. In accordance with the federal trust responsibility between Indian tribes and the Federal government, DON consults with representatives of federally recognized Tribal Governments on a government-to-government basis in recognition of Tribal sovereignty. Commanders and commanding officers play a prominent role in government-to-government consultation with federally recognized tribes, although they may delegate certain routine consultation functions to command staff.
DON consults with Indian tribes and NHOs on all issues impacting Indian lands, properties of religious and cultural importance to Indian tribes or NHOs, cultural items subject to NAGPRA, rights protected under treaties, and issues of concern to Indian tribes and NHOs. Proposed DON actions requiring consultations may include but are not limited to the following:
ground-disturbing activities, construction, training, or low level overflights;
management of sites with religious or cultural significance;
protection of and access to sacred sites;
access to subsistence and medicinal natural resources;
disposition of cultural items under NAGPRA; and
land use decisions, including the development of Integrated Cultural Resources Management Plans (ICRMPs) in compliance with DODI 4715.16 Cultural Resources Management.
Essential to productive consultation is understanding Native American and Native Hawaiian traditions, cultures, contemporary issues and the post-Contact history of interaction with colonists, settlers and other Americans. The Office of the Secretary of Defense Native American Affairs Program maintains training courses about Native American and Native Hawaiian traditions, cultures, and tailored communication and consultation strategies. Military and civilian employees from all levels of DOD are encouraged to participate in these courses, and to take advantage of other awareness and training opportunities regarding Indian tribes, NHOs, and cultural resources management.
Members of a particular indigenous culture are in the best position to provide the most up-to-date and accurate information about that culture. Culturally specific information obtained from Native Americans and Native Hawaiians is to be respected as expert opinions or testimony. For a variety of reasons, there may be hesitation to disclose or identify the exact nature and location of properties that are significant to Indian tribes and NHOs. It is DON policy to consult in good faith and protect culturally sensitive information from public disclosure consistent with NHPA and ARPA.