Consulting With Indian Tribes
The Honorable Sam Penney
Council Member and former Chairman, Nez Perce Tribe,
September 20, 2004
(Based on notes taken at the presentation)
In consultation, you need to remember that Tribes have history. They occupied spaces that were much larger than their present reservations.
President Johnson said that tribes must have a place in deciding their future. This was acknowledged by Presidents Nixon, Reagan, and Bush. In 1994, President Clinton issued an Executive Order stating that tribes have a unique legal relationship with the federal government stemming from the U.S. Constitution.
Tribes are aware of their sovereign status.
The Nez Perce Tribe has its own story -- as do all tribes -- as to what they are doing and want to do. We are concerned about wolf reintroduction and fish acclimatization. We deal with three [Department of Agriculture] Forest Service regions.
We have several treaties. The 1855 Treaty reserved rights to the Tribe. The 1863 Treaty is very disturbing. Gold was discovered on our lands. Rather than upholding the 1855 Treaty, the U.S. "renegotiated" and entered into the 1863 Treaty. Many people who had signed the 1855 Treaty refused to sign the 1863 Treaty. The 1868 Treaty resulted from a timber trespass. In 1887, the Dawes Act [General Allotment Act] was passed. The Nez Perce traditional use area was 131 million acres. Congress wanted to "settle" Indians down. Under the Dawes Act, land was allotted to individuals. Not all of the lands were allotted. The lands that were not allotted were opened up for non-Indian settlement. This resulted in our reservation being checkerboarded. This causes jurisdictional problems.
I was Chairman of the Nez Perce Tribe for 10 years. I have been on the Council for 16 years. Nez Perce has its own consultation policy. We developed it because we were asked questions about how to conduct consultation.
Consultation should occur prior to implementing any policy. There is nothing more disturbing than when the agency decides everything and then comes in to "consult."
The Tribe is not the general public and will not go into a public forum to discuss what should have been discussed through consultation. Requests for "public" comments and "Dear Interested Public" letters are not parts of consultation. Come in and talk with us directly. Meetings with staff are important and we have a list of technical people with whom to discuss issues, but that is not consultation with the tribal government.
Each tribe is unique and each may view consultation differently. Ask the tribe you are working with how to consult with it.
Trust is developed through one-on-one consultation. You need to talk with the people and to see on the ground what you are working with.
Get communication going early. You need to consult prior to taking things to the general public.
When the tribe is not fully consulted, it may result in litigation. We don't want to do that, but we may find it necessary.
Establish a relationship with the tribe and the people.
Consulting does resolve a lot of problems.
Audience question: What happens when problems arise in consultation? How do you resolve disputes?
SP Response: We may refer it to staff to try to resolve the issues and bring back an agreement.
Audience question: There are regional organizations of tribes, and other organizations that represent tribes. What is the relationship between talking with those organizations and consultation?
SP Response: If you are dealing with an organization of tribes, this is not consultation. Some organizations have members who have decision making authority, but meeting with one or two tribal members, who are also members of the organization, is not consultation.
Audience question: What if you want to try to use talking with an organization to at least start the process of consultation?
SP Response: Tribes are not the general public, they are not a special interest group. You need to consult first.
Audience question: How do you know when to raise the discussion from the staff level to the consultation level?
SP Response: Take for instance a fishery question. This may have several components -- water / cultural resources / resource usage. Respect that the tribe has its own internal procedures for addressing issues. Again, you need to meet with the tribe and build relationships.