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Why Do We Consult Tribes? A Legal and Policy Perspective



Karen Atkinson, Esq.
Tribal Strategies, Inc., Washington, DC, 202-543-8052

Why Do We Consult Tribes? A Legal and Policy Perspective

Karen Atkinson, Esp.
Tribal Strategies, Inc., Washington, DC, 202-543-8052

Implementing the Government to Government Relationship

It is important for agencies to understand what treaties entered into 175 years ago still mean to tribes today. Agencies, like tribes, have varying missions and ideas. We need to develop new ways to manage those obligations.

  • Growing recognition of the need to consults
  • Many Federal Statutes and executive orders require consultation

There is a growing recognition of the need to consult with tribes in statutes and executive orders.

Why do agencies consult?

  • 562 federally recognized Indian tribes
  • Unique legal and political relationship
  • The relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else...Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

There are 562 federally recognized tribes. Not all tribes have the same rights / interests.

Duty to Protect

  • Trust responsibility is comprised of legal duties and other obligations
  • Imposes fiduciary obligations on the federal government
  • Duty to protect Indian lands and resources and the ability of tribes to continue their way of life

It is important to understand that the obligation to consult arises out of the Federal Trust obligation. It was meant to protect a way of living. It was also easier to understand in the past -- it means something different today.

Native American Consultation on Federal Lands

  • Many federal statutes require agencies to consider the effects that their activities have on Native American lands, resources, and protected rights
  • Duty extends to off-reservation activities that may harm a tribe’s land base or treaty-protected resources
  • Trust responsibility applies to all federal agencies not just the Department of the Interior

We must apply treaty rights to today’s lifestyle, especially if resources are no longer on Indian lands, but on federal or other lands. The duty to protect extends beyond the reservation -- off-reservation lands may affect tribal interests or resources. How can you tell? Often, you can’t until the consultation process begins.

Federal Agency Role

  • Critical role in implementing the trust relationship
    • manage public lands adjacent to Indian lands
    • regulate vast resources in and around Indian Country

The Federal agency role is critical in the implementation of consultation.

Consultation and Coordination with Indian Tribal Governments, Executive Order 13175 (November 6, 2000)

  • Acknowledges federal trust responsibility
  • Framework for consulting when policies have “tribal implications”
  • Applies to regulations, proposed legislation, and other policy statements that have a “substantial direct effect” on tribes, the relationship of the federal government and tribes, and the distribution of responsibilities between the federal government and Indian tribes

New policies apply to the development of rulemaking, change in distribution of responsibilities.

Requirements

  • Establish procedures for consultation and rulemaking to ensure meaningful and timely input
  • Give maximum possible deference to tribes when administering federal regulatory programs
  • Implement activities in manner that is sensitive of tribal sovereignty

The Clinton executive order did not impose new obligations; it affirmed a federal trust responsibility that already existed.

Respect for Tribal Sovereignty

  • Do your activities, undertakings, or rulemakings affect tribes, tribal rights or tribal resources?
  • Take affirmative steps to learn about tribal organization and processes
  • What tribal laws and regulations apply
  • State law generally does not apply

The order requires agencies to act in a manner that is respectful of tribal sovereignty. Take affirmative steps to learn about the tribe beforehand.

Develop a Protocol

  • Implement the government to government relationship
  • Establish a working relationship
  • Identify processes and procedures to govern relationship

Develop a protocol. When an agency and tribes are often at odds on issues, it is useful for agencies that meet with tribes several times. This helps in the building of a relationship. It is also useful to have an agency tribal liaison who is a member of a tribe. A Memorandum of Agreement agreeing to consult on mutual issues can be helpful.
An agency-wide policy or protocol can eliminate the problem of just a few individuals having an understanding of the consultation process.

What is consultation?

  • Active and affirmative process
  • Goal is to involve Indian tribes in the identification of issues and the range of acceptable management options

Consultation is an active and affirmative process. Its goal is to involve Indian tribes in the identification of issues and acceptance of management options. It may take a little more personal contact than just sending a notification letter.

Unique Legal Relationship

  • Sovereign status of Indian tribes and special provisions of law set them apart from members of the public
  • Interactions with tribes are different
  • Federal agencies generally required to show good faith effort to notify and consult tribes regarding its proposed actions

Why are there special efforts to reach out to tribes? Tribes have a unique legal relationship. Sovereignty is a political relationship that sets tribes apart from the general population. Federal agencies are generally required to show a good faith effort to consult that is separate from specific general statutes.

Objectives of Consultation

  • Provide Indian tribes with a meaningful opportunity for productive participation in agency planning and decision making
  • Formal mutually agreed upon process for communication and coordination
  • Government to Government level of interaction consistent with laws and policies
  • Commitment to follow guidelines and procedures

The goal is to give tribes an opportunity to participate productively in agency planning and decision making. Consultation is a formal process mutually agreed upon with the tribe. Interaction should be government-to-government. Often this is confusing for agencies and for tribes. Consultation must be consistent with laws and policies. Agencies should inform tribes who the key decision makers are within the agencies and provide a timeframe of the decision making process. There must be a commitment to follow procedures.

Audience comment: Often the most useful part of consultation is a policy for how that consultation will occur. The document can establish a formal government-to-government relationship. It acknowledges the respect for tribal sovereignty and that the agency understands who it is dealing with. That way, lower level policymakers can have a guideline for how to operate.

Who to consult with

  • It depends
  • Various federal statutes require consultation with the following:
    • Federally recognized tribal governments
    • Non-recognized Indian communities
    • Traditional and cultural religious leaders and practitioners
    • Lineal descendants

Who to consult with? That depends on the type of action -- statutes differ. There are Federal and state recognized tribes, traditional tribal leaders.

There is also a question as to which tribe or tribes need to be consulted in regard to actions in a particular area.

Identifying Tribes

Historically, tribes have affiliation with land areas much broader than current reservation boundaries.

The Advisory Council for Historic Preservation has geographic information.

The National Park Service has a NAGPRA Consultation Database.

The Bureau of Indian Affairs has a tribal leaders directory.

Notice

  • Published notices and form letters generally not sufficient
  • Person to person
  • Initial contact should be with the Chairman

How to proceed with consultation? Published notice and comment and form letters are not sufficient. Consultation should be person to person. The initial contact should be with the Chairperson or other recognized head of the tribe.

Notice Content

  • State the purpose of the consultation
  • Identify agency point of contact
  • Identify the input or information being requested of tribe
  • Provide opportunity for meeting
  • Request the tribe to identify a point of contact and others to consult

State your purpose clearly. Identify a point of contact. Clarify what information you want from the tribe. Provide an opportunity for a meeting and ask for a point of contact.

When to consult?

  • Early, early, early
  • Pre-decisional consultation helps identify issues and opportunities at the beginning
  • Reduces potential delays and increased costs
  • Can be done within the planning or environmental review process

Consult as early as possible. Pre-decision contact and consultation is always best as it reduces potential delays and increased costs. Consultation can be done during planning and review stages.

Consultation Process

  • Should take into account the views of the tribe
  • Take into account the level of impact, the complexity of the issues, and level of concern
  • Should continue throughout the decision-making process

Consultation should be mutually agreed upon, a two-way street, and continue throughout the decision making process. It should take into account the level of impact. The level of effort should coincide with the level of impact. How much interest does the tribe have? Will this lead to litigation?

Consultation should continue at every step.

Sensitive Data

  • Freedom of Information Act exemptions
  • National Historic Preservation Act--Section 304-- permits an agency to not disclose information if it may result in harm to the property, a significant invasion of privacy or impede traditional religious practice at the site
  • Archaeological Resources Protection Act—Section 9 allows agencies to protect resources by restricting information on their nature and location

Sensitive information: tribes often want to protect information. The tribe may not tell you something right away that you may need to know, such as sacred site information, because of a history of vandalism, etc., of sacred sites. Sharing information about sacred sites may be met with resistance. Factors include the Freedom of Information Act, the National Historic Preservation Act, tradition, religious practice, etc. Tread lightly!

Audience comment: Protection under the National Historic Preservation Act is problematic because of the way it deals with traditional cultural properties (for example, topographic features can be protected). Tribes are often reluctant to outline discrete, exact locations. Agencies should invite tribes to bring it to the attention of the agency if larger areas will be more sensitive than others. Maybe develop a land-use planning effort.

The Archaeological Resources Protection Act can protect information if the site is eligible. If a situation goes to litigation, a certain area may or may not be eligible for protection, especially if the tribe does not want to release information. That can require documentation, which, again, might come up against resistance to talking about sacred sites.

Consultation Formats

  • Single Meeting
  • Series of Meetings
  • Negotiated Rule Making
  • Tribal Leader Task Force

Consultation formats: Some possibilities are a single meeting, a series of meetings, a negotiated rule making, a tribal leader task force. Again, the format depends upon the impact of what you are trying to do. Several agencies have tribal advisory committees -- working groups that can be called upon. Others are less formal but effective if there are recurring issues.

Rulemaking

  • Unfunded Mandates Reform Act of 1995, P.L. 104-04,
  • Requires agencies to develop a process to enable state, local and tribal government officials (or their designee) to provide input in rulemaking

The Unfunded Mandate Reform Act requires agencies to develop a process to enable state, local, and tribal governments to provide input.

Meetings can be exempt from FACA

  • Section 204, 2 U.S.C. 1534, exempts meetings between state, local, tribal and federal officers from the requirements of the Federal Advisory Committee Act where:
    • Exclusively between federal and state, local tribal government officials in official capacity
    • For the purpose of exchanging views and information relating to management or implementation of Federal programs that share intergovernmental responsibilities

Consultation must maintain the government-to government relationship. The tribe must designate a spokesperson to retain government-to-government status.

Key elements

  • Timely notice of proposed federal actionExchange of information on potential impacts to tribal rights or trust resourcesIdentify federal official that will make final decisionFully consider tribal input and recommendations
  • Document how input and recommendations considered in decision-making process

Timely notice; exchange of information on impacts, identify federal decision maker; fully consider tribes’ input and recommendations, document for administrative record.

Be Proactive

  • Communicate directly with tribe
  • Determine appropriate point of contact
  • Establish permanent means to communicate
  • Learn about tribal rights and trust resources
  • Address potential impacts to tribal rights and trust resources early
  • Provide tribes with technical and other assistance

Be proactive, communicate directly, and look at establishing permanent means of contact, whether that is a protocol or committee or liaison. Learn about tribal rights and trust resources. Provide tribe with technical and other assistance.

Need to demonstrate good faith effort. Example: Letter to chairperson to initiate consultation, phone calls, proof that tribe has received a request for input.

With respect to the concentric circles which Jim Van Ness described, where will the areas of sensitivity be? You can really only find out through consultation. What if we don’t know who we have to consult with? Or even that we have to consult? There are ethnographies. Find out who has a traditional interest in the land. Set up a catalogue of who has an interest and to what degree. This is obviously more difficult in a regulatory setting than in regard to a specific project. There are also a series of maps on the National Park Service’s web site that show broad cultural areas. These can give an idea of where to start. The US Geological Survey also has old maps. Highway administration: several states compile information about which tribes occupied which areas. The Natural Resources Conservation Service, US Department of Agriculture, does this as well. Databases set up in advance help to ensure that in the future, you will know who you need to consult with. This is particularly helpful in the East. Other tribes or land managers may have an idea of where to start.

Meeting notes should be reviewed by both tribal and Federal officials.

Audience comment: I work in conflict prevention. It seems to me that the stakeholder involvement process is actually consultation if it is done with a tribe.

Audience comment: Don’t forget that there are often regional and national native advocacy groups. Sometimes they want to be involved but that changes the government-to-government relationships. Tribes can designate someone to speak for them even if they are not a tribal member. You could have a government-to-government meeting and a public interest meeting as well.

Audience question: What about the resources to travel to meet tribes? Agencies don’t have unlimited budgets, especially if travel is required repeatedly.

Audience response: Remember that tribal resources are often scarce as well. DoD is working on ideas about regional efforts to work with tribes.

Second audience response: This is something that could be addressed in a protocol.