CBAs and Tribal Nations

⧉ Resources

• ILO’s Indigenous and Tribal Peoples Convention (No. 169), which recognizes the right to prior consultation before any “legislative or administrative measures which may affect them directly” (website available as of 7/13/2025).

• Indigenous Land Use Agreement database  is a searchable database of agreements from Australia, Canada, New Zealand, and South Africa, maintained by the  Australian Research Council (ARC) Linkage Project State Commissions or Contacts on Indian Affairs, National Council of State Legislatures (website available as of 7/13/2025).

• State Commissions or Contacts on Indian Affairs, National Council of State Legislatures (website available as of 7/13/2025).

• The US federal recognition process for Tribes (website available as of 7/13/2025).

• Contact List of leaders of Federally Recognized Tribes, US Department of the Interior, Bureau of Indian Affairs, link (website available as of 7/13/2025).

• Native Land Digital is another resource for finding contact and other information about Tribes (website available as of 7/13/2025). 

• Contact List of Leaders from State-Recognized Tribes, including Alabama,  Louisiana, and Virginia (websites available as of 7/13/2025).

• Archaeological Terms Glossary, Native American Heritage Commission, State of California, link (website available as of 7/13/2025).

• Tribal Consultation Policy, Native American Heritage Commission, State of California.

•  An Introduction to Section 106, Advisory Council on Historic Preservation, link. 

• The National Historic Preservation Act of 1996 and its related regulations.

• A Citizen’s Guide to Section 106 Review, Advisory Council on Historic Preservation, link.

•  In addition to NEPA, many states, including California, have specific rules intended to protect cultural resources.  For example: The California Environmental Quality Act 

• UN Declaration of Rights of Indigenous Peoples 

• 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

• 1970 UNESCO Convention Concerning the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

• 1972 UNESCO Convention Concerning World Cultural and Natural Heritage 

• 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. 

• Database of the Indigenous Land Use Agreements between indigenous communities and outside entities in Australia, Canada, New Zealand, and South Africa. 

Definitionsㅤ

American Indian and Alaska Native
Persons belonging to the Tribal nations of the continental United States (American Indians) and the Tribal nations and villages of Alaska (Alaska Natives) [National Congress of American Indian, 2020]

Native American
All Native people of the US and its trust territories (i.e., American Indians, Alaska Natives, Native Hawaiians, Chamorros, and American Samoans) as well as persons from Canadian First Nations and Indigenous communities in Mexico and Central and South America who are U.S. residents [National Congress of American Indian, 2020]

Guiding Principles for Tribal Engagement

Engaging with Tribal governments is distinctly different from general community outreach. Below are guiding principles to help you respectfully engage with Tribal nations.

• Sovereign Nation: Tribal nations or simply, Tribes, are sovereign governments with special legal standing in the United States set forth in the US Constitution, treaties, statutes, executive orders, and court decisions. Community coalitions acknowledge and respect these nations’ rights and culture.

• Historical Trauma: Community coalitions acknowledge the history of colonialism and its impacts on Tribal communities and strive to build trust through respectful dialogue and commitment to equitable and reciprocal partnerships.

• Early and Ongoing Engagement: Community coalitions commit to engaging at the earliest opportunity and continue throughout the initial coalition meetings, CBA framework, negotiation preparation, and the negotiation process and implementation stages. 

• Transparency: Community coalitions commit to engaging with Tribes openly and transparently, including sharing project information to assist the Tribes in determining its potential impacts, and continuing to share information throughout the negotiation and implementation process. 

• Meaningful Ongoing Engagement: Community coalitions commit to creating ongoing opportunities for Tribes to share their community needs and priorities, and actively participate in designing the CBA priority benefit framework, negotiation decision-making process, and monitoring and enforcement strategy.

• Culturally-Appropriate Engagement: Community coalitions recognize that each Tribe is unique and commit to tailoring strategies and using culturally-appropriate methods to engage Tribal members.

• Capacity Building: Community coalitions recognize that fully engaging in CBA negotiations requires knowledge about laws, technology, public health, the environment, and business operations. In some cases, community coalitions may benefit by listening and learning from Tribes, who sometimes have a wealth of relevant experience and knowledge. In other cases, community coalitions might support and learn together with Tribes that may not have prior experience, including potentially identifying funding for ongoing technical support. 

• Confidentiality of Tribal Data: Community coalitions commit to using best practices and protecting the confidentiality of Tribal data and Traditional Ecological Knowledge collected or shared as part of CBA development and implementation. 

Based on your Tribal Government Guiding Principles, your CBA negotiation strategy should include separate provisions for engaging individually with Tribal governments and facilitating a two-way exchange of information. Recognize that each Tribe will determine, in its own way, whether collaboration and partnership are the best pathway for achieving benefits.

Free, Prior, and Informed Consent

Starting in the late 1980s, Indigenous voices worldwide united in advocating for a new international legal framework to recognize the rights of Indigenous peoples to territorial self-determination and cultural integrity. Acknowledging the centuries of genocide, dispossession, and forced assimilation—and the particular role of extractive sectors in perpetuating these harms—international bodies such as the International Labor Organization (ILO) and the United Nations (UN) established a range of rights for Indigenous peoples. 

The ILO’s Indigenous and Tribal Peoples Convention (No. 169) recognizes the right to prior consultation before any “legislative or administrative measures which may affect them directly.” ILO 169 zooms in on mining specifically, noting that even when governments are the owners of subsoil resources, they ought to consult the Indigenous peoples before extraction; germane for our purposes, these communities “shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages.” 

The UN Declaration on the Rights of Indigenous Peoples further clarifies that consultation aims to obtain consent and establishes the general principle of “Free, Prior, and Informed Consent” (FPIC) as the guiding principle of interactions between Indigenous peoples and corporations and/or governments. This phrasing has become institutionalized, usually referred to by its acronym. While internationally recognized and generally considered a baseline requirement by nongovernmental organizations and others who engage in community development activities, the US is not a signatory to this convention. 

FPIC, Right to Know, and Right to Say No

Free, prior, and informed consent (FPIC) is a principle recognized in the United Nations’ Declaration on the Rights of Indigenous Peoples designed to ensure the engagement and incorporation of Indigenous peoples in decision-making based on their rights to land, territory, and resources. FPIC is an ongoing process that includes both the process of engagement and dialogue as well as the right to give or withhold consent. 

Expectations for meaningful FPIC may vary from nation to nation or community to community. According to the United Nations Economic and Social Council’s Permanent Forum on Indigenous Issues, common elements of FPIC include:

• Free should imply no coercion, intimidation or manipulation.  

• Prior should imply that consent has been sought sufficiently in advance of any authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes.  

• Informed should imply that information is provided that covers (at least) the following aspects:  

  • The nature, size, pace, reversibility and scope of any proposed project or activity;  

  • The reason(s) for or purpose(s) of the project and/or activity;  

  • The duration of the above;  

  • The locality of areas that will be affected;  

  • A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit-sharing in a context that respects the precautionary principle;  

  • Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others);  

  • Procedures that the project may entail.  

• Consent [should include consultation, participation and consent.] Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Consultation requires time and an effective system for communicating among interest-holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women are essential, as well as participation of children and youth, as appropriate. This process may include the option of withholding consent…Consent to any agreement should be interpreted as indigenous peoples have reasonably understood it.

When there is FPIC, mining and extraction projects can still move forward, often including some form of an Indigenous Land Use Agreement (ILUA). In Australia and other countries, an ILUA is a voluntary agreement between a Native title group and others about the use and management of land and waters. The Agreements, Treaties and Negotiated Settlements Project is an extension of an Australian Research Council Linkage Project. The project’s original aim was to examine treaty and agreement-making with indigenous Australians. However, since its origins in 2002, it has grown to include a database of ILUAs from Australia, Canada, New Zealand, and South Africa. Here is a link to a list of agreements in the searchable database.

Even after established standards are in place, these legal advances do not end the struggle for recognition or redistribution. In many cases, FPIC exists only on paper, rarely or superficially applied in practice. Corporations go through the procedural motions because doing so is required to secure a permit, concession, or contract. Even as the outcomes of FPIC have been underwhelming, many Indigenous communities are demanding a more just position in having control over their lands. These communities advocate for a “Right to Say No,” which would result in halting the project. Within this context of wanting more control over the land and activities that will impact it, CBAs might play a positive role and offer another venue to organize and uplift their positions.

US Consultation and Tribal Cultural Resource Laws

Tribal sovereignty means that Tribal nations are independent governments with the power to make their own laws and govern their members. There are 574 federally recognized Indian Nations in the United States. The English names for Indian Nations include Tribes, nations, Rancherias, bands, pueblos, communities, and Native villages, among others.  

As a sovereign nation, Tribal governments have the power and responsibility to govern on matters involving their members, including determining citizenship, creating civil and criminal laws, and regulating activities on their lands. They are also often involved in essential functions such as education; law enforcement; health care; environmental protection; natural resource management; and infrastructure development, including housing, broadband, energy services, solid waste facilities, and transportation systems, among other government functions.

US treaties with Tribal nations hold the same legal status as those with foreign nations, making them the supreme law of the land and overriding any conflicting state laws. The National Congress of American Indians describes the political relationships Tribal members have as being “citizens of three sovereigns: their Tribe, the United States, and the state in which they reside. They are also individuals in an international context with the rights afforded to any other individual.”

Legal Status—US Constitutionㅤ

Article 1, Section 8 of the United States Constitution vests Congress, and by extension the Executive and Judicial branches of the government, with the authority to engage in relations with the Tribes, thereby firmly placing tribes within the constitutional fabric of the nation. When the governmental authority of Tribes was first challenged in the 1830s, US Supreme Court Chief Justice John Marshall articulated the fundamental principle that has guided the evolution of federal Indian law to the present: That Tribes possess a nationhood status and retain inherent powers of self-government.

American Indian and Alaska Native reservations and trust land areas comprise approximately 100 million acres. Although there are federally recognized Tribes throughout the US, some areas have significantly more. For example, approximately 229 nations (27.7% of American Indian and Alaska Native people who live in Indian Country) are located in Alaska and 109 in California; the other federally recognized Tribes are located in 34 different states. There are eight states with no federally recognized Tribal lands: Arkansas, Delaware, Georgia, Illinois, Kentucky, Vermont, Virginia, and West Virginia. This does not mean that these lands were not previously the home of American Indians and Alaska Natives. 

The violent attempted genocide and mistreatment of Indigenous groups across the Americas resulted in the displacement and resettlement of many peoples miles away from their historical homelands. For example, 

“the Prairie Band Potawatomi Nation is a Tribal unit that originated in the Great Lakes area... During this forced migration west, the Potawatomi made temporary stops in Missouri’s Platte County in the mid-1830s and the Council Bluffs area of Iowa in the 1840s. The Tribe controlled up to five million acres at both locations. After 1846, the Tribe moved to present-day Kansas, a new region which was once called the “Great American Desert.”

In 1994, Public Law 103–454 (the Federally Recognized Indian Tribe List Act) established three ways for Tribal nations to become federally recognized:

1. An act of Congress.

2. A decision of a US court.

3. The administrative procedures set forth in part 83 of the Code of Federal Regulations are denominated “Procedures for Establishing that an American Indian Group Exists as an Indian Tribe.” In this process, applicants must submit petitions that respond to the seven criteria to the Bureau of Indian Affairs (BIA) Office of Federal Acknowledgment.

The federal recognition process requires the filing of a petition that requires detailed anthropological, genealogical, and historical research methods and takes years to prepare, petition, and be acted upon by the BIA. However, a Tribe whose relationship with the United States has been expressly terminated by Congress may not use the Federal Acknowledgement Process. Only Congress can restore federal recognition to a “terminated” Tribe.

Some states, including Alabama, Louisiana, and Virginia, have established programs to designate state-recognized Tribes. Section 6—Resources include additional information on Tribal governments; their history; and the contributions and experiences of American Indians, Alaska Natives, and Native Hawaiians. 

Tribal Cultural Resources and Land Use Development

Section 106 of the National Historic Preservation Act of 1996 (NHPA) plays a crucial role in ensuring that federal agencies consider the potential effects of their actions on historic properties. This includes a range of historic cultural resources, including property and artifacts of cultural and religious meaning to American Indians. To support the protection of these resources, the NHPA established the Advisory Council on Historic Preservation to guide its implementation and mandated the establishment of preservation programs within federal agencies led by a designated Federal Preservation Officer.

Identifying Tribal Cultural Resource Contactㅤ

One area of research that is too often overlooked is Tribal cultural resources. Understanding the Tribal context of projects is very important and is also a required component of many state and all federal permitting, subject to the National Environmental Policy Act.

Many, but not all, Tribes have a dedicated Tribal historic preservation officer, Tribal cultural resource professional or liaison on staff. You can identify a Tribal cultural resource contact for a traditionally and culturally affiliated Tribe by contacting the Tribe directly or by requesting the information from the state. Here is a template for requesting the contact.

For community coalitions working in partnership with Tribal governments, the NHPA and its related regulations provide a valuable framework for raising issues. Among other things, they allow for the inclusion of federal agency experts to help advocate for community concerns and create new opportunities for addressing deficiencies while developing enforcement alternatives.   

The Section 106 Consultation process is designed to respect Tribal sovereignty and ensure that Tribal governments’ concerns are appropriately considered when decisions affect their heritage sites. In addition to consultation with Tribes, it also includes opportunities for general public engagement. Even when public involvement is limited, Section 106 Consultations provide Tribal leaders with a targeted platform to raise significant issues and make recommendations to mitigate the adverse impacts of government agency actions.  

Engaging Tribal governments early in the process is encouraged to allow sufficient time to build trust and familiarity with the project before the statutorily mandated Section 106 Consultation is initiated. For additional information about the Section 106 process, guidance on determining when federal involvement is necessary, strategies for collaborating with federal agencies, and ways to influence project outcomes, check out “A Citizen’s Guide to Section 106 Review,” which the Advisory Council on Historic Preservation prepared.   

In addition to the National Environmental Policy Act, many states, including California, have specific rules intended to protect Tribal cultural resources. For example, the California Environmental Quality Act (CEQA) (commencing with Section 21000) of the Public Resources Code) was amended in 2014 to specifically include the reliance of California Native American Tribes’ knowledge and concerns as a means to stop projects from creating significant environmental impacts to Tribal cultural resources and sacred places. More specifically, the expanded CEQA aims to:

1. Establish a new category of resources called “Tribal Cultural Resources” that considers the Tribal cultural values in addition to the scientific and archaeological values when determining impacts and mitigation.

2. Establish that a substantial adverse change to a Tribal cultural resource has a significant effect on the environment.

3. Establish examples of mitigation measures for Tribal cultural resources that uphold the existing mitigation preference for historical and archaeological resources of preservation in place, if feasible.

4. In recognition of their sovereignty and their unique governmental status, establish a meaningful consultation process between California Native American Tribal governments and lead agencies considering approval of projects. 

5. Ensure that local governments, Tribes, public agencies, and project proponents have access to information early in the CEQA environmental review process. 

6. Enable Tribes to manage and accept conveyances of, and act as caretakers of, Tribal cultural resources.

As discussed in Section 3, your comprehensive CBA negotiation strategy will likely be closely linked to your engagement in the government permitting processes. Tribes will, and should, be engaged in the same permitting process. Both the project sponsor and regulatory agencies have a mandated duty to share information and seek input from Tribes before proceeding with the project. 

When considering benefit provisions, Tribes may have similar priorities to other community coalition members, such as protecting the environment and creating job opportunities for their community, not for out-of-towners. Tribes also have special standing under CEQA because their Tribal knowledge about land use and environmental practices is officially acknowledged. This recognition provides them with a platform to advocate for maintaining environmental standards, such as clean air and water. Whether part of your coalition or working independently, Tribes have an essential role within the regulatory framework. Therefore, it is crucial and strategic to keep them informed about the project.

Engaging with a Sovereign Tribal Nation

Tribes in the US have a government-to-government relationship with the federal government. Meaningful consultations between governments are undertaken between the appropriate Tribal and federal/state agency leadership. When the two governments engage, they may include policy or technical-level staff, but the official consultations are between people of similar power and status. As community coalitions interested in engaging with Tribes on a specific project, it is essential that written communication be sent to the Tribal Council with a copy provided to the relevant department within the Tribal government, such as the Historic Preservation Office, if one exists.  

Only officially designated members of the Tribe can speak on the Tribe’s behalf. Most often, this is the Tribal chief, chairperson, a member of the Tribal Council, or an elder whom the Tribe designates. Like-minded tribal members and elders may become important allies. However, speaking with 1, 2, or 50 Tribal members and reporting that information as representative of the Tribe’s position is inaccurate and could undermine the coalition’s long-term relationship with the Tribe.

The Tribe to Federal Government Relationshipㅤ

The relationship between Tribes and the US federal government comes from the US Constitution, which defines this relationship as one between equals. A state government is considered a subregional government of a sovereign nation.

However, due to the Termination Era of the 1950s, some states, including California and Oregon, have seized the opportunity to assume a larger role with Tribes, including those that may not be federally recognized.

Other federal laws have also allowed for states’ roles.  One of the most significant examples is the Indian Gaming Act, which authorizes states to negotiate with Tribes on gaming. Some states have tried to exert their perceived authority by creating something they call “state-recognized” Tribes. However, this designation is not universally accepted by federally recognized Tribes.

When Planning to Meet

Best practice is for this engagement to be part of an ongoing dialogue that the community coalition members have been having with Tribes. While you can’t change the past, you can build into your negotiation plan an extended introductory period to meet and learn about what is important to the Tribe, generally, before asking the Tribe to take positions or join your coalition. These ongoing dialogues should include relevant Tribal government employees, Tribal council members, and the Tribal chair.

• Preparation: Spend some time before meeting learning what you can about the Tribe. Tallgrass Institute includes in its Tribal Benefits Agreements report a list of questions for companies to research before meeting with a tribal nation, many of which are relevant for community groups also.

• Advance Notice: Provide advance notice about your interest in the meeting. Tribal governments have many responsibilities in serving their people, resulting in competing responsibilities. At a minimum, provide 30 days’ notice and, ideally, 60 days. This means that setting a CBA coalition engagement schedule is an essential part of your plan to engage with Tribes respectfully.

• Written Notice: Provide a written invitation to the Tribal Council that you are interested in meeting to discuss the proposed project. As noted above, carbon copy the relevant staff.  

• Follow-up: The written invitation should be followed up with a call to the Tribal Council and Historic Preservation office to ensure they received the letter and to identify with whom you should follow up. Do not assume that the Tribe has no interest in participating in the CBA process if the Tribe does not immediately respond to the invitation to meet. Tribes have limited capacity. Community coalitions should also consider how to provide support to Tribes, enabling them to participate effectively in the process.

• Options for Engagement and Time to Consider: Tribal governments need time to review information, discuss, and determine their position. Be sure to explain the potential roles the Tribe could play in the CBA negotiation process. For example, could the Tribes limit their engagement to one area of the CBA or provide technical assistance to drafting certain CBA provisions but not publicly support the actual project? The timeline for review and comment must reflect and respect their process. 

• Written Background: As with any group, it is helpful to provide information in writing ahead of the meeting that includes a clear statement about the Tribe’s potential response options, a timeline for responding, a description of the CBA coalition organization they are being asked to join, and a person to contact if questions arise during their consideration. For lengthy documents, provide a written summary of key points. 

• Meeting Location and Format: Tribal governments may prefer one-on-one meetings to discuss their Tribes’ needs and priorities rather than large meetings with different coalition groups. Be polite and ask how the Tribe chooses to engage.  

When initiating your relationship with Tribal governments, it is rarely effective to add a Tribal Council member to a mass Zoom meeting invitation and expect them to attend. The lack of personal attention and consideration would be off-putting for any new coalition group. In the case of sovereign Tribal nations, it is disrespectful to their special status granted by the US Constitution.

International Consultation and Indigenous Cultural Resource Laws

When projects affect Indigenous Peoples, international law on consultation in the mining and extraction business primarily centers around FPIC, which is discussed in Subsection 2. In addition to the rules relating to the developer and project owner, governments also have responsibilities to consult and protect cultural heritage. These international cultural heritage laws provide a legal framework for protecting and preserving cultural heritage and often serve as the basis for national laws. At their origin, these laws were predominantly concerned with the preservation of tangible objects. However, over the decades, these international laws, adopted by countries that become parties to a United Nations Convention, have also come to include cultural sites and places of historical significance. Link: UN Declaration of Rights of Indigenous Peoples 

This legal framework has several key components: 

• 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: This convention protects cultural property from destruction or damage during times of both peace and armed conflicts and includes a preamble that states that “any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural heritage of all humanity, because every people contributes to the world’s culture.” This Convention entered into force in August 1956. According to the UNESCO website, as of June 7, 2025, 138 countries have ratified the Convention, including the US, Russia, and China.

• 1970 UNESCO Convention Concerning the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property: This convention aims to prohibit and prevent the illicit trafficking of cultural properties, including the import, export, and transfer of ownership of cultural property, recognizing the “right to cultural sovereignty” for peoples and nations. Among other provisions, the Convention provides mechanisms to control the circulation of cultural objects and facilitate their return to their country of origin. This Convention entered into force in April 1970. According to the UNESCO website, as of June 7, 2025, 147 countries have ratified the Convention, including the US, Russia, and China.

• 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage: This convention establishes the framework for the identification, protection, and preservation of sites of outstanding universal value, encompassing both cultural and natural heritage. The Convention defines:

  • cultural heritage to include not only monuments and groups of buildings but also sites: works of humans or the combined works of nature and humans and areas, including archaeological sites, that are of outstanding universal value from the historical, aesthetic, ethnological, or anthropological point of view;

  • natural heritage to include:

    • natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

    • geological and physiographical formations and precisely delineated areas, which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

    • natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation, or natural beauty.

This Convention entered into force in November 1972. According to the UNESCO website, as of June 7, 2025, 196 countries have ratified the Convention.

International consultation and cultural resource laws reflect an incomplete yet growing global commitment to protecting and preserving cultural heritage for the benefit of humanity. This includes creating legal frameworks that promote respectful engagement with Indigenous peoples; safeguarding cultural property, especially during armed conflict; and preventing illicit trade in cultural heritage. Additionally, these laws emphasize the importance of incorporating cultural resource considerations into various projects and activities to ensure that cultural heritage is appropriately valued and maintained. 

Action Items

Identify the Tribal governments within the region of the project. The Native Land Digital Map is one place to begin this research.

Identify which agency serves as the state’s primary liaison to Tribal governments.

If they are not confidential, obtain copies of consultation agreements between federal and state government agencies with regulatory oversight over the project.

Check whether the project sponsor or a government regulatory agency has initiated a consultation with the potentially impacted Tribes. Gather copies of public letters and other official documents related to the consultation.