HEADQUARTERS

• United States Constitution 
  • Article I, Section 8, clause 3: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
  • Article VI, clause 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
• Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831):  Court opinion authored by Justice Marshall found that the Cherokee Nation had proven itself to be "a distinct political society, separated from others, capable of managing its own affairs and governing itself" and went on to describe tribes, in general, as "domestic dependent nations."
• Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832):  Court opinion authored by Justice Marshall found that Indian nations continued to exist as "distinct, independent political communities" and maintained the principle that "A weak State, in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government and ceasing to be a State."
• Executive Order 13175 Consultation and Coordination With Indian Tribal Governments (06 Nov 2000):  "The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination."

• Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831):  Court opinion authored by Justice Marshall found that “an Indian tribe or Nation within the United States is not a foreign state in the sense of the Constitution” and that “their relation to the United States resembles that of a ward to his guardian…. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion [sic] with them, would be considered by all as an invasion of our territory and an act of hostility.”
• Presidential Memorandum (29 Apr 1994) Government-to-Government Relations With Native American Tribal Governments:  "Each executive department and agency shall take appropriate steps to remove any procedural impediments to working directly and effectively with tribal governments on activities that affect the trust property and/or governmental rights of the tribes.”
• Executive Order 13175 - Consultation and Coordination With Indian Tribal Governments (06 Nov 2000):  “The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.”
• Office of the Secretary of Defense, Trust Responsibility and Consultation Matrix:  Used by the OSD Office of Counsel to determine how to apply the Trust Responsibility.

• Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832):  Court opinion authored by Justice Marshall states “The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the government of the Union.”
• Presidential Memorandum (29 Apr 1994) Government-to-Government Relations With Native American Tribal Governments:  “The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government-to-government relationship with federally recognized tribal governments.”
• Executive Order 13175 - Consultation and Coordination With Indian Tribal Governments (06 Nov 2000):  “The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.”

• Presidential Memorandum (29 Apr 1994) Government-to-Government Relations With Native American Tribal Governments:  “Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments.  All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals.”
• Executive Order 13175 - Consultation and Coordination With Indian Tribal Governments (06 Nov 2000):  “Each agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”
• Presidential Memorandum (05 Nov 2009) Tribal Consultation:  “Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.”  “…each agency head [is] to submit to the Director of the Office of Management and Budget (OMB) … a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. … each agency head [is] to submit to the Director of the OMB … annually … a progress report on the status of each action included in its plan together with any proposed updates to its plan.”
• USACE Compliance with President Obama’s Memorandum of 5 Nov 2009 on Tribal Consultation
  • USACE Plan as of January 2010
  • USACE Update, July 2011
  • USACE, first Annual Report, August 2012
  • USACE, table accompanying the Annual Report

• How to Plan a Water Resources Project with the U.S. Army Corps of Engineers: A Guide for Tribal Governments
• Continuing Authorities Program (CAP):  Congressional authorization for small, cost-shared, projects dealing with flood plain management, flood control, ecosystem restoration, erosion control, and stream bank protection.  Authorized through the Water Resources Development Act, as amended.
  • Small Projects for Flood Damage Reduction - Section 205 of the Flood Control Act of 1948 (amended by Section 1002 of WRDA 2007)
  • Small Projects for Emergency Streambank Protection - Section 14 of the Flood Control Act of 1946 (amended by Section 1003of WRDA 2007)
  • Navigation Improvements (reauthorized as Sections 1004, 1008, and 1009 of WRDA 2007)
  • Small Projects for Improvement of the Quality of the Environment - Section 1135 of the Water Resources Development Act of 1986 (amended by Section 1005 of WRDA 2007)
  • Small Projects for Aquatic Ecosystem Restoration - Section 206 of the Water Resources Development Act of 1996 (amended by Section 1006 of WRDA 2007)
  • Hurricane and Storm Damage Reduction - Section 103 of the River and Harbor Act of 1962 (amended by Section 1007 [Small Projects for Shoreline Protection] of WRDA 2007)
• Emergency Operations
  • Flood Control and Coastal Emergency Act (Public Law 84-99) (33CFR203):  Under PL 84-99, a Tribe can contact the local District emergency operations office directly to prepare for an "imminent" disaster.  For example, in the case of flooding, the Corps can deliver sand bags to the area that will be flooded and put in temporary structures, such as berms, around important infrastructure.  It is important that the Tribe also contact the appropriate state authorities, as the Corps works with state emergency response teams on these types of projects.
  • Stafford Act (42 U.S.C. 5121-5207):  After a state of disaster or emergency has been declared by the Governor of a state or the President of the United States, the Federal Emergency Management Agency oversees disaster relief funding and operations of federal agencies.  The Corps is typically responsible for public works protection, debris removal, and engineering missions.
• Native American Lands Environmental Mitigation Program (NALEMP):  NALEMP is a Department of Defense program, carried out by the Corps, to remediate contamination caused by military activities on previously appropriated lands.  Tribes are commonly funded, through cooperative agreements, to perform the clean-up on Native American lands.
• Planning Assistance to States and Tribes - Section 22 of the Water Resources Development Act of 1974 (amended by Section 2013 [Tribal Assistance] of the Water Resources Development Act of 2007):  The Corps can provide technical planning services to assist a Tribe or state in the creation of a comprehensive water resources strategy for developing, using, and conserving water and related land resources.
• Tribal Partnership Program - Section 203 of the Water Resources Development Act of 2000 (amended by Section 2011 of the Water Resources Development Act of 2007):  The Corps is authorized to conduct small (<$100,000) reconnaissance studies of various water resources and related issues, such as flood damage reduction, environmental restoration and protection, watershed planning, cultural resources studies, and other appropriate projects.  Feasible projects resulting from these studies may be funded through a cost-share agreement that allows for in-kind contributions.
• Executive Order 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (11 Feb 1994):  “…each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States…”  “Each Federal agency responsibility set forth under this order shall apply equally to Native American programs.”
• Executive Order 13287 - Preserve America (03 Mar 2003):  “It is the policy of the Federal Government to provide leadership in preserving America’s heritage by actively advancing the protection, enhancement, and contemporary use of the historic properties owned by the Federal Government, and by promoting intergovernmental cooperation and partnerships for the preservation and use of historic properties.”  “The Secretary of Commerce … shall assist States, Indian tribes, and local communities in promoting the use of historic properties for heritage tourism and related economic development … as they relate to federally owned historic properties and significant natural assets on Federal lands.”
• Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers (36 CFR 327):  “It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.”
• Engineer Regulation 1105-2-100:  “This regulation provides the overall direction by which Corps of Engineers Civil Works projects are formulated, evaluated and selected for implementation.”  “The Federal objective of water and related land resources project planning is to contribute to national economic development consistent with protecting the Nation’s environment.”
• Coastal Zone Management Act of 1972:  “The Congress finds and declares that it is the national policy … to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations…”  The Secretary of Commerce may make grants to coastal states for the study, protection, and management of coastal resources.

Natural Resources

• Lacey Act of 1900, as amended (18 USC 42; 16 USC 3371-3378) - “It is unlawful for any person – (1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law…”
• Migratory Bird Treaty Act of 1918, as amended (16 USC 703-712) - Unless otherwise permitted by regulation, this Act makes unlawful multiple acts of hunting, transporting, possessing, and selling migratory birds.  The Act allows that “the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs…”
• Bald Eagle Protection Act of 1940, as amended (16 USC 668-668c) - Establishes penalties for unpermitted uses of Bald and Golden Eagles.  The Secretary of the Interior may authorize and permit the taking of such eagles for “the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes…”  The U.S. Fish and Wildlife Service manages permits and operates a National Eagle Repository to provide eagle feathers and parts for religious use by Native Americans.
• National Environmental Policy Act of 1969, as amended - “…it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”  The Act requires the coordination of Federal agencies to determine the potential environmental impacts of proposed actions and to seek “the comments and views of the appropriate Federal, State, and local agencies…”
• Marine Mammal Protection Act of 1972, as amended (16 USC Chapter 31) - “The Congress finds that – (1) certain species and population stocks of marine mammals are, or may be in danger of extinction or depletion as a result of man’s activities … and that the protection and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate commerce…”  The Act prohibits numerous takings and uses of marine mammals and establishes certain exemptions “with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean…”
• Endangered Species Act of 1973, as amended (16 USC 1531-1544) - “The Secretary shall … determine whether any species is an endangered species or a threatened species” and “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such [threatened] species…”  The Act prohibits numerous takings and uses of endangered and threatened species, and provides exceptions for subsistence purposes by “(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or (B) any non-native permanent resident of an Alaskan native village.”

Cultural Resources

• Antiquities Act of 1906 - Early legislative attempt to protect American Indian cultural resources.  This act allowed for the protection of historic and prehistoric resources through the establishment of National Monuments.
• Historic Sites Act of 1935 - “It is hereby declared that it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States.”
• Reservoir Salvage Act of 1960 (amended as the Archeological and Historic Preservation Act) - Provides “for the preservation of historical and archeological data (including relics and specimens) which might otherwise be irreparably lost or destroyed as the result of (1) flooding, … and other alterations of the terrain caused by the construction of a dam by any agency of the United States, or by any private person or corporation holding a license issued by any such agency or (2) any alteration of the terrain caused as a result of any Federal construction project or federally licensed activity or program.”
• National Historic Preservation Act of 1966, as amended through 2006 Establishes Federal policy to work “in partnership with the States, local governments, Indian tribes, and private organizations and individuals to … foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.”  Section 106 of the Act requires that Federal agencies “take into account the effect of the [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register” and “afford the Advisory Council on Historic Preservation … a reasonable opportunity to comment…”
• Protection of Historic Properties (36 CFR 800) - The implementing regulations for Section 106 of the NHPA.  Establishes a process by which Federal agencies consult with State, tribal, and local governments, and the public, to identify and mitigate adverse effects to historic properties.
• Procedures for State, Tribal, and Local Government Historic Preservation Programs (36 CFR 61) - Establishes regulations for the approval of State historic preservation programs and certified local governments under the NHPA.
• National Natural Landmarks Program (36 CFR 62) - “The National Natural Landmarks Program identifies and preserves natural areas that best illustrate the biological and geological character of the United States, enhances the scientific and educational values of preserved areas, strengthens public appreciation of natural history, and fosters a greater concern for the conservation of the nation’s natural heritage.”
• Determinations of Eligibility for Inclusion in the National Register of Historic Places (36 CFR 63) - “These regulations have been developed to assist Federal agencies in identifying and evaluating the eligibility of properties for inclusion in the National Register” as required by Executive Order 11593, the NHPA, and the implementing regulations at 36 CFR 800.
• National Historic Landmarks Program (36 CFR 65) - "The purpose of the National Historic Landmarks Program is to identify and designate National Historic Landmarks, and encourage the long range preservation of nationally significant properties that illustrate or commemorate the history and prehistory of the United States.”
• Archaeological Resources Protection Act of 1979, as amended - Requires Federally issued permits to “excavate or remove any archaeological resource located on public lands or Indian lands…” and prohibits the excavation, removal, damage/defacement of “…any archaeological resource located on public lands or Indian lands…” without such permit.  Establishes criminal and civil penalties for violation of prohibited acts.
• Protection of Archaeological Resources: Uniform Regulations (32 CFR 229) - Pursuant to the ARPA, these regulations establish uniform definitions, permitting requirements, and penalties under the Act.  Includes definitions of types of cultural materials, the required qualifications for permittees, Federal ownership of materials from public lands, and the process for determining civil and criminal penalties.
• Curation of Federally-Owned and Administered Archaeological Collections (36 CFR 79) - “The regulations in this part establish definitions, standards, procedures and guidelines to be followed by Federal agencies to preserve collections of prehistoric and historic material remains, and associated records recovered under the authority of …” applicable laws.
• Native American Graves Protection and Repatriation Act of 1990, as amended - Requires museums and Federal agencies to inventory, identify, and return to lineal descendants any “Native American human remains and associated funerary objects” in their possession.  The Act also requires consultation and a permitting process in the event of the discovery, excavation, and/or disturbance of such remains and objects; and, prohibits the trafficking of any protected cultural items defined in the Act.
• NAGPRA Final Rule (43 CFR 10) - “This final rule establishes definitions and procedures for lineal descendants, Indian tribes, Native Hawaiian organizations, museums, and Federal agencies to carry out the Native American Graves Protection and Repatriation Act of 1990.  These regulations develop a systematic process for determining the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with which they are affiliated.”
• Reburial and Conveyance Authority - Section 208 of the Water Resources Development Act of 2000 (Public Law 106-541) -“In consultation with affected Indian tribes, the Secretary may identify and set aside areas at civil works projects of the Department of the Army that may be used to rebury Native American remains that … have been discovered on project land” and “the Secretary may convey to an Indian tribe for use as a cemetery an area at a civil works project…”
• Reburial (Section 208) Policy Guidance - “This memorandum provides initial implementation guidance for Section 208 of the Water Resources Development Act of 2000 (WRDA 2000), Public Law 106-541.”
• American Indian Religious Freedom Act of 1978 - “It shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”
• Abandoned Shipwreck Act of 1987 - “Any abandoned shipwreck in or on the public lands of the United States is the property of the United States Government.  Any abandoned shipwreck in or on any Indian lands is the property of the Indian tribe owning such lands.”  “The law of salvage and the law of finds shall not apply to abandoned shipwrecks…” on public or Indian lands.
• Sunken Military Craft Act - The United States retains “right, title, and interest of” sunken military craft “regardless of when the sunken military craft sank.”  The Act prohibits the possession, disturbance, removal, or injury of such craft.  This Act has been applied to sunken military craft of the Confederate States and may be applicable to sunken military craft of American Indian tribes.
• American Battlefield Protection Act of 1996 - “…the Secretary of the Interior … shall encourage, support, assist, recognize, and work in partnership with citizens, Federal, State, local, and tribal governments, other public entities, educational institutions, and private nonprofit organizations in identifying, researching, evaluating, interpreting, and protecting historic battlefields and associated sites on a National, State, and local level.”
• Executive Order 11593 – Protection and Enhancement of the Cultural Environment (13 May 1971) - “The Federal Government shall provide leadership in preserving, restoring and maintaining the historic and cultural environment of the Nation.”  This order requires agencies of the executive branch to “administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations…”
• Executive Order 13007 – Indian Sacred Sites (24 May 1996) Federal agencies of the Executive branch shall “(1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites.”
• Executive Order 13287 - Preserve America (03 Mar 2003) - “The Federal Government shall recognize and manage the historic properties in its ownership as assets that can support department and agency missions while contributing to the vitality and economic well-being of the Nation’s communities and fostering a broader appreciation for the development of the United States and its underlying values.”