Panel on Tribal Perspectives on Consultation
USET (United Southeastern Tribes) is an organization of tribal governments in the southeastern United States. It is a good consultation organization in the East. It deals with historic preservation and cultural issues.
There are protocol documents -- USET uses memorandums of understanding. These are very general documents that reiterate the federal law that is involved -- the basic establishment of government-to-government contact, establish point of contact from each side. It puts everyone on notice that consultation is going on. USET has been using MOUs as an initial step in consultation. Usually we are contacted based on a specific project that is being planned. Usually, the agency finds out later that they need to be consulting with the tribe. Often, the agency just wants to talk about their project. Government-to-government consultation is not project specific -- it is an ongoing responsibility to consult on anything that may affect tribal lands or sites of historical and cultural significance. It will often take you off federal lands. Ceded lands are often millions of acres. Not to mention huge ancestral, historical lands where a tribe still has an interest. So when a tribe comes to the table on a specific project, the tribe's concern is often from a much broader perspective. This is one reason the official MOU is valuable and makes tribes feel more comfortable.
The initial contact for consultation is with the head of tribal government. But you should go through the appropriate channels -- remember that the head of a government gets a lot of mail. Find the appropriate people at the tribe who work on issues like your project. That is part of your obligation as a federal agency. Make phone calls -- make an effort to contact the correct people. Some tribes will not respond, but if you have made a good faith effort to consult and get no response, it is okay to move on.
Often, agencies will have lawyers who are entirely ignorant of Indian Law, NHPA, Indian preservation laws, tribal sovereignty, etc. This is a real problem. Often, USET must spend time educating agency lawyers.
How do you deal with an MOU with, for example, DOT that has to deal with FAA, etc? Ideally, an agreement would be with the Secretary of Transportation, but often one like that would be so broad as to be useless. Most often, the MOUs are with local or parts of an agency (MS DOT)
Audience question: How many people do you deal with?
KC Response: It varies from a letter to construction of a cell tower to a thousand-acre field. We talk to everybody, travel everywhere, and are generally overwhelmed.
Audience question: Are MOUs also a work management tool?
KC Response: Yes, sometimes. The nice thing about an MOU is that it is pretty much undefined yet is a legally binding document. Some MOUs go into specifics of a project; some just establish a relationship and points of contact.
Audience question: Say all of the Federal agencies got the message that tribes must be consulted, how would you like the agencies work with you and with each other to make everything work better?
KC Response: It is mainly communication -- we need to learn what you do, too. We need to develop relationships and understand what the agencies do before we can understand what we need from you. Part of the consultation is figuring out what each side needs to see from the other.
When I started in the environmental department it was just me. I now have 38 employees. We have had a lot of negotiations with federal agencies represented in this room to keep the grants coming in. Our tribe depends mostly on our natural resources.
A lot of tribal governments don't understand the federal process, a lot of the language. There are a lot of federal statutes that have a lot of different definitions of Indian Country. A lot of statutes that tribes need to regulate don't mention Indians so we can't use them. If there are no dollars attached to it, it runs through the Environmental Assessment process in NEPA. It's just process.
A lot of times, if you go to a tribe, they will want to talk about treaties. A lot of tribal members see their lands as lands that the government has taken away. So a lot of agencies come out and say, "I have to do this consultation." As Federal Agencies you are required to inform the people which include Tribal Governments and our constituents, we can not make the proper decisions if we are not properly informed. But if that's the way you feel, you shouldn't do it because you have to, it is your responsibility to come out here and inform our Tribal Governments of the facts on issues.
One half, they want to litigate every issue and erode our sovereignty, the other half, they want to take things away such as our jurisdiction and treaty rights. So a lot of times, we don't want to talk because we don't know what else will be taken away. A lot of our council members don't want to discuss the issue of water rights because those rights are ours by treaty. There is an EPA section 8 policy dealing with Indians, but it has a disclaimer at the end that more or less says they don't have to adhere to it. So then you turn around and want us to sign something. You have the responsibility as our trustees to inform us as Tribal Governments of issues that may affect our sovereignty and jurisdiction. It is your responsibility to earn our trust. There are some questions I wanted to ask this morning - what does "shared" mean? What does "general" mean?
There needs to be education, a lot of people are not educated about our ways. A lot of times, we have to pick our fights. A lot of times you don't want to go to court because you don't want to lose rights for our respective Tribe or for the rest of Indian country.
I don't know how many of you get to go to Indian Country. That's what I would encourage you all to do - we'll take you around, show you what's going on. You say Indian country, you think gaming. But we have other issues -- we have two of the poorest counties in the nation located on our reservation. I would encourage everyone to go to Indian country.
We have a continuous government of over 1,000 years. A lot of the things you are asking, we would answer, that's our business. But through the 562 nations, you are going to run from one end to the other. Our nation, we do not take federal funding. Therefore, we are free. But most nations have a dependence on the federal government. From the rancherias with 20 people to the Navajo Nation with 300,000; there's your spectrum. The languages are different. The only common language we have is sign language. It is still around, we still use it. There is evolution all the time -- no nation in the world is independent. From our perspective we all need to depend on each other. I have been sitting as a chief for 40 years so I have a lot of what you would call experience. The complexity of the government spectrum (here and in Canada) is vast. Some nations have their traditional religion, some are very Christianized. But almost all tribal lands have traditional leaders and often that is where the decision comes from, even if they are not federally recognized leaders.
We can look back far; so we can also see far. Iroquois has 1,000 uninterrupted years of government so that gives us stability. At one time, our leaders tell us, we had 85 nations under our wing -- which we were influencing. In 1744 our treaties were printed by Benjamin Franklin. He read what we said and he thought it was a good idea. He brought those ideas to the Continental Congress. When your nation declared itself sovereign from England they did not want anything to do with England. In the Boston tea party, they dressed themselves as Mohawks. Because it meant something. They were free.
We agree to who will sit on our councils by consensus. 51-49, we think is no good. Consensus is more difficult to reach.
The peacemaker gave us three principles; peace, equity, power of the good minds, or unity.
Peace is the same as health. One of our big issues now is healthcare.
We do not have equity. We do not have unity.
The people have the biggest responsibility.
Our people have been damaged heavily by the policies of this country. Remember that when you go to meet with them. Help them; do not make it harder on them. You will be talking about graves, water, land. Things that are very important to them.
You must have compassion. Love for the people. Base your decisions on the seventh generation. Time is growing short. We can't even imagine the problems the children are going to face. Think of them as you make your decisions. We still have time to turn -- but as we said at the council, it is a hard turn. It is like a U-turn as we speed toward the negative direction.
We are all the same people -- we can exchange blood. We have almost the same DNA as plants. We knew that all along. We are all the same life force. We all have the same goal. We are all headed to the same destiny. When the peacemaker made the white pine he told us that is our law -- no matter how hard you fight against that law you will not win. We are fighting against that law and it is going to result in a lot of pain, a lot of crying. But in the end the world will not end, it will keep going. No matter how much we pollute the air, the water, it will re-green, come back. It will all go into the earth and it will come back as pure as ever.
Where did 16 million people go? It is something we have to deal with. It is not good or bad, it is a lesson. We have to learn that lesson or our children will suffer.
So I ask you, as you go out to talk to our people, have respect. Have compassion. If we are concerned with our future, with our children we have to make that U-turn. But there is a point of no return, a point where we cannot go back any more. It will be a day like any other, no thunderstorms, just a quiet day. But we will never return to that day.
Luck, good effort, remember that we are together. This is a good cause.
If you go forward with respect and compassion, you will go a long way with the people. If they believe you, they will talk with you. If not, they will remain silent.
Thoughts on trust responsibility: it is no more than an agreement. The agreements are held by two people. If one side doesn't agree, there is no agreement. Two big words -- trust and responsibility. An agreement that was made a long time ago -- value exchange. Everything you have is built on our land, with our resources. You have only been here five days, we say. But look what has happened in those five days. You know how difficult trust is -- if you were to leave your doors open, who would you be trusting? Responsibility is yours, a responsibility that befits the great nation. Responsibility -- keep up what the agreement was.
A definition of consultation should be spelled out. We don't know what you are saying when you say "consultation." Is it informing, after you have made the decision? That is not consultation. I have done equal, face-to-face negotiation. Consultation implies an authority -- whatever you say we will decide. Is that what it is? If so, let us know so our people know what to expect. So when you say consultation, you really need to clarify what that means in your mind, in our mind. So if you give us a finished product and say what do you think? We think it is a little late. So if you leave the table, let us know the ultimate definition of consultation. It might mean something different to everyone who sits here.
Audience question: On the topic of delegation of authority within the tribes: as a federal employee, I have certain responsibility, is there a way tribal government can delegate that way?
KC Response: Again, there are broad variations from tribe to tribe. Most tribes have a council system where they control everything, control the government. But some tribes' governments mirror the federal government -- some tribes have both elected government and tribal government and they work together.
OL Response: We have a definition of nations -- each nation has to do with itself except for questions of war and peace. We have a Haudenonsaunee environmental task force and we have delegated a lot of authority to them. We are available to the people 24 hours a day. When there are problems, we deal with them. We are hands on. As you get older, you move less and less and the younger groups, chiefs take over. Our council meets 4 days a week from about 10 till sundown. None of our meetings last beyond sundown. We deal with things on a national level and international level. We send people to the Geneva Convention. We don't get a salary; we have to make our own living. We try not to get any young chiefs because we know they have families to support. We adapt; we live in the northeast and it is easy for us to get work. Construction, ironworkers, glazers. It's a hard life but we're independent. We don't have a jail, we don't have police. We operate with the consensus of the governed. We have the clan mothers, a principle, a male and a female faith keeper. It is a family. Our first responsibility is to the ceremonies as it was told to us years ago. Second responsibility is to counsel the people.
Mohawks have an elected council. There are traditional chiefs and elected councils. There are about 70,000 Iroquois both sides of the river. We work together. The responsibility of leadership is really direct. The people expect you there -- if you can't do the job, get out of the way and let someone else who can and will. We're not very educated, but we're seasoned. We have experience. That's why we are still here after 1,000 years. We have a lot of law but none of its written. People just know it. It is breaking down because of alcohol and drugs, all over -- not just Indian country. It seems confusing but there is a lot of order. The fundamental law is respect. Each nation has to work it out for itself -- it is people-oriented, that is the same. Not enforcement oriented.
Audience question: You are three people, representing three different nations with different governmental structures. What do government employees do when we come in to talk to your tribe?
KC Response: Talk to the tribe. It is not disrespectful to say you don't know. A lot of times we don't know what you want, either. You explain to them what you want, we will explain to you tribal law, tribal custom. It doesn't hurt to ask questions.
OL Response: One of the things that is difficult for us is your government language. Is there a way you can simplify that language? I know you are bound by laws and regulations, but simplicity and getting rid of extraneous language is important. Get to the point. That's what we like to do. We understand the complexity of government, but we don't understand the language. Maybe you could start with the idea behind the words. If it needs ratification when you get back, you have to let us know; don't go back and say Congress changed this or that -- we were not there. Communication -- the simpler the better. Simplification, clarity of thought, and purpose. We don't like lawyers speaking for us; we don't allow lawyers to speak for us.
Audience comment: Typically, our traditional tribal government will overrule the elected government. You need to understand the basics first and it will make everything a lot easier. It is the basic thing that needs to be understood before you try to make greements. If you were going to make an agreement with a company, you would know the basics beforehand.
Audience question: What is the worst thing an agency has ever done in consultation?
KC Response: NOT come to consult. Generally, that's where many of the problems start.
DN Response: One thing that is infuriating is jumping through all the hoops. For example, the master manual. We made changes and our comments weren't anywhere in it. It was frustrating because if you weren't going to take our concerns into consideration, why did you have us do it? It is in place to protect you, not us. It is frustrating to have our opinions asked and then you do not even listen.
OL Response: That's what you will deal with -- the worst thing you have ever done. You will have someone sitting there looking at you thinking about the worst things ever done to Indian country. If you think of that, you will have an idea of how to begin. If you send runners, and follow protocol, we will come and ask your business. Then we will bring you into the village -- rest, clean up, eat. Then we'll talk about why you are here. Runners had to get there, tell the problem and take back the answer. So if you show that kind of respect, that's what you will get in return. We want to know why, what is the subject, what you want. It is basically a matter of respect.
Audience question: As we talk about consultation, it must mean that we respect our earth. If corporations are a part of that for real, we need to look at it. Sometimes deals can be made when corporations are at the table and maybe deals should not be made. Maybe we need to think about what role corporations have.
OL Response: That is a big thought. Corporations are not structured for anything but profit. It is, in my estimation, improper procedure. It is like a friendly person sitting across the table and behind them is a very fierce entity. Don't show up with a corporation at your side.
Awareness is number 1 -- the people have the greatest responsibility, not the leaders.