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Pre-Workshop Self-Assessment



Sarah Palmer, U.S. Institute for Environmental Conflict Resolution

The purpose of the pre-workshop assessment was to see how well people think consultation is going. How well issues are being resolved. There is a need for the right participants -- a high-level champion can keep a process moving. There are inconsistencies within the government, and we need to navigate and reconcile those as well. This summary provides some interesting insights into how you as federal employees respond to consultation issues.

Beginning the Dialogue: Government-to-Government Consultation, Coordinating the Lessons Learned and Looking to the Future
Pre-Workshop Assessment Findings

Purpose

  • Offer workshop participants an overview of the federal community’s shared experiences in g-t-g consultation.
  • Identify and compile relevant resources (policies and training opportunities).

Overview of Responses

  • 20 respondents
  • Divisions, bureaus, branches, offices in 8 agencies and commissions.
    • Commerce
    • Defense
    • Energy
    • Environmental Protection
    • Interior
    • Transportation
    • Treasury

How Well is Consultation Working for Your Agency or Bureau?

  • 19 Responses:
    • 1 Very well
    • 8 Fairly well
    • 6 Okay
    • 4 Works but not well
    • 0 Not at all

Types of Challenges

  • Knowledge
    • Of culture and customs and relationship to way of life, treaty rights, how tribal government operates,
    • Clarity of roles and responsibilities during consultation (within agency and tribe(s)),
    • Of when to consult, and
    • Of substantive knowledge of the issue, disparities in the freshness of information held by decision-makers up the chain of command.
  • “Right” Participants
    • Need high-level champions to keep processes moving
    • Need right people involved
  • Mismatched Expectations
    • At what level consultation proceeds (director to council leadership, program staff to program staff), and
    • Substance e.g., level of protection, remediation, preservation, or if a project should proceed at all.
  • Communication
    • Lack of response from tribe,
    • Inconsistencies between federal decision-makers, and
    • Entrenched positions, poor listening for common goals/shared needs
  • Consistency
    • Variation of approach by individual within the agency and
    • Variation across tribes
  • Resources
    • Limited travel budgets,
    • Staff, and
    • Time to build relationships and resolve issues.
  • Logistics
    • Geographic distance between agency office and tribe and
    • Scheduling key participants

Types of Conflicts

  • Between agencies and tribes
    •  Fueled by historical events
    • Personalities
    • Poor communication
    • Mismatched expectations in what an agency can provide and understanding agency legal and statutory limitations
    • Jurisdiction
    • Information sharing
  • Within agencies/bureaus/programs
    • When to consult, who takes the lead
    • How to consult with multiple tribes on an issue
      • Balancing needs and expectations of small & large tribe
      • Balancing needs and expectations of “direct-service” tribes and self-governing tribes
    • Balancing trust responsibilities with agency mission (may be conflicting)
    • Protecting confidential information while being consistent with FOIA and APA
    • Tensions between speed and efficiency and participatory decision-making
    • Resources (money) e.g., no travel budget
    • Managing perceptions of other parties e.g., that tribes have “special access”
  • Between agencies/bureaus/programs
    • Different visions of what consultation looks like
    • Communication
    • Clarity of roles and responsibilities
    • Need for program specific protocols that integrate the broader agency vision of consultation

Means of Resolving Conflicts

  • Build relationships
  • Increase communication
  • Find common ground
  • Negotiation
  • Mediation
  • Legal counsel
  • Education
  • Scapegoating
  • Increase funding

Evaluating Effectiveness of G-t-G Consultation

  • Criteria/Indicators:
    • Solicited feedback (written and/or oral) from tribal leaders
    • Comments in Federal Register Notice and Comment section
    • If everyone has had a chance to be heard and understands each other’s positions and interests.
    • A policy or agreement that is respectful of Native American interests or concerns, or continued dialogue that furthers relationships
    • A signed/unsigned agreement with low level tribal opposition
    • A decrease in the number of official complaints
    • Develop agreed upon criteria e.g., better solutions, decreased controversy, decision is more durable
    • Developing an internal tracking system to identify if consultation has occurred.

Initiating G-t-G Consultation

  • Timing
    • Varies with project and circumstances (1 yr to 1 month in advance)
    • Maybe ongoing
    • As required in EO13175
    • As agency mandates direct
    • Provide technical assistance, so consult any time
    • With initiation of NEPA
    • With application pre-filing process (~ 3yrs before NEPA)
    • Not far enough in advance
  • Methods of Communication
    • Letter, fax, phone call
    • In person meetings
    • Contact tribal gov’t to ask how and when to consult
    • Meetings with tribal organizations (in addition to specific tribes)
    • Build personal relationships
    • Distribute monthly newsletter to tribes with new and ongoing projects of interest
    • Rely on agency experts
    • Go to community, meet with elders, tribal council, families to learn about culture and values and begin to understand impact of federal actions

Collaboration and Consultation

Critical elements of collaboration include:

  • all affected interest and points of view are represented;
  • open and frequent communication is maintained;
  • shared vision and clear obtainable goals and objectives are articulated;
  • mutual respect, understanding and trust are fostered;
  • essential decision-makers are engaged;
  • there are clear roles, responsibilities and authorities for each participant;
  • participants share a stake in the process and the outcome.

Collaboration and Consultation

Yes……..…No………..Sometimes

  • Varies by agency
  • Varies by project or issue
  • “Sometimes, where there are mutual interests to be served”
  • May be difficult because of:
    • Previous experiences and relationships
    • Low-trust
    • Lack of skills or knowledge on how to collaborate

Other Comments & Questions

  • What article/publication is available to guide decision makers? (consultation and their role; purpose and potential impact; as well as engaging tribes in a consultation session - expectations of behavior?)
  • Funding for consultation is a major obstacle, g-t-g is best elucidated authoritatively in a Clinton era memo. Something stronger (statute) and more recent would be useful
  • The voices of the last generation of indigenous peoples who have seen, heard, or otherwise experienced the vestiges of their traditional lifeways, religious beliefs, and community structure are almost completely silent.
  • The Corps will always sit down and talk with Tribes. Tribes, despite their frustration, will always come back to consult. Great patience is displayed on both sides.
  • I am especially interested how other granting agencies work effectively with tribes.
  • The National Park Service has participated in effective government-to-government consultations between Death Valley National Park and the Timbisha Shoshone; Great Smoky Mountains National Park, Blue Ridge Parkway, and the Eastern Band of Cherokee Indians; Devils Tower National Monument with over 20 tribes; and current government-to-government consultations are taking place between Badlands National Park and the Oglala Sioux Tribe.

Suggested Training Resources

  • NRCS course on "Working Effectively With Tribes“
  • DOJ video "The law cultural heritage and consultation with Native Americans” (Nov 2002) one of a few but excellent
  • NPS “Foundations of Indian Law and Policy” addresses the government-to-government relationship in a very detailed manner.
  • Duke University Environmental Leadership Executive Education Series on NEPA and Tribal Consultation.
  • Tribal Strategies, Inc. training tailored to a specific agency or program

Audience comment: In the National Park Service public involvement process, it is part of our policy to pass the introductions or relationships on to whoever replaces you.

Additional audience comment: At the Department of Energy we have used a standing teleconference every week. We can talk about issues, remind them of upcoming issues, and ask for documents. Since it is a teleconference, any number of people can call in and address their issues.