Consultation

Tribal Consultation and Coordination Summary

Tribal Consultation between Native Village of Venetie and US FWS Artic Refuge staff to update the Refuge Protection Plan for Artic National Wildlife Refuge.Tribal consultation and coordination is a process that guides the United States government to engage in a true and lasting government-to-government relationship with federally recognized tribes. Meaningful consultation is of paramount importance in developing any policies affecting tribal nations as described in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. Honoring these relationships and respecting tribal sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity.

By Executive Order, President Obama established the White House Council on Native American Affairs on June 26, 2013. The policy behind the formation of this council is to recognize the government–to-government relationship, as well as the unique legal and political relationship that exists between the federal government and tribes. Greater engagement and consultation is critical to policies that advance tribal self-determination and prosperity. The Council will be chaired by the Department of Interior, and will consist of 31 federal agencies and organizations. It will meet three times a year, and will assist the White House Office of Public Engagement and Intergovernmental Affairs in the organizing of an annual White House Tribal Nations Conference.

To read the entire Executive Order, please visit:
 www.whitehouse.gov/the-press-office/2013/06/26/executive-order-establishing-white-house-council-native-american-affairs

EPA Consultation and Coordination Policy

On May 4, 2011, Former Administrator Lisa Jackson announced the release of the EPA Policy on Consultation and Coordination with Indian Tribes. The Policy is a result of the Presidential Memorandum on Tribal Consultation issued November 5, 2009, directing each executive department to develop a detailed plan of action to implement Executive Order 13175 Consultation and Coordination with Indian Tribal Governments.

The United States Environmental Protection Agency (EPA) was one of the first federal agencies with a formal policy specifying how it would interact with tribal governments and consider tribal interests in carrying out its programs to protect human health and the environment. Signed in 1984, this EPA Policy for the Administration of Environmental Programs on Indian Reservations remains the cornerstone for EPA’s Indian program.

National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee’s Guide on Consultation and Collaboration with Indian Tribal Governments 

The following text has been excerpted from National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee’s Guide on Consultation and Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in Environmental Decision Making . This guide is a useful resource to:

  • inform federal agencies, as well as state and local agencies, why consultation with Indian tribal governments is an important aspect of the federal trust responsibility,
  • describe the sovereignty of federally recognized tribal governments and explain how they should be treated in a government-to-government fashion by federal and state agencies,
  • define the difference between the public participation process, which is an information gathering and sharing exercise, and consultation, which is a government-to-government process that requires greater involvement and decision-making by all parties,
  • provide information on the legal requirements for the government-to-government relationship between tribes and the federal government and guidelines on how to achieve such a relationship,
  • provide information to promote environmental justice in Indian country and among Alaska Natives, and
  • stimulate fresh dialog among federal and tribal governments, as well as other interested parties.

The entire guide can be downloaded HERE.

Tribal Consultation Goal
The optimal goal of tribal consultation should be to achieve consensus between tribal leaders and federal officials on how to identify, consider, and address issues or concerns.

Included within that goal, and where appropriate, federal agencies must be prepared to give tribal views deference when making decisions affecting tribal interests. Where, after a diligent and good faith effort has been made by the federal agency(ies) to achieve consensus, it is determined that consensus is not possible, then the federal agency(ies) should seek to achieve as substantial agreement as possible among those who are participating. In addition, the views of those not in agreement should be completely and fairly recorded in any document published by federal agency(ies) following the consultation. Finally, when the federal agency(ies) has completed its consultation process, or in good faith determined that further consultation would not be purposeful, it is important for the agency(ies) to issue its final decision expeditiously. By doing so, the federal agency(ies) timely advise those who participated in the consultation process how their views were taken into consideration.

Where the federal agency(ies) decision concurs with tribal views, early decision making will help improve agency-tribal relations. On the other hand, where the federal agency’s decision is contrary to tribal views, the tribe and its members are then on timely notice that specific steps may be required to pursue reconsideration or appeal of the decision.

These meetings should be supplemented with broader public meetings to keep all tribal members informed. Similarly, as tribal governments create or implement their own environmental programs, public participation processes should be considered to keep all interested stakeholders (both tribal and non-tribal) in Indian country informed and to provide opportunities for meaningful involvement.

Public participation is a valuable function of government. It provides important information upon which government officials may base their decisions affecting the public. This is particularly important in the design and implementation of environmental and public health programs. Government officials may not understand how some individuals or groups bear disproportionate impacts unless the public has the opportunity to express its concerns. By affording individuals and groups the opportunity to speak for themselves, government agencies can base decisions on more accurate information. This may help create a sense of ownership with the public groups, lead to community support for government action, and assure environmental justice.

Tribal Consultation Guiding Principles

The following guiding principles for tribal consultation should be followed:

  • tribal governments should be involved in the actual decision making process at the earliest practicable moment;
  • each agency should institutionalize its own consultation procedures for Indian governments;
  • federal agencies should train their staff on how to consult with Indian governments; and
  • integrity and honesty should always be paramount in any consultation process.
Significance to Tribes:
Federal Trust Responsibility
The federal trust responsibility requires the federal government to uphold rights reserved by, or granted to, Indian tribes and Indian individuals by treaties, federal statutes, and executive orders.

Unique Legal Status of Tribes
The unique legal status of American Indian and Alaska Native tribes creates an important requirement for governmental entities, and other stakeholders, to understand that the federal government must consult directly with tribal governments when contemplating actions that may affect tribal lands, resources, members, and welfare. The federal government should collaborate directly with tribal governments in a consultative process, which leads to decision-making.

Tribal Sovereignty
Tribal sovereignty refers to the inherent authority of indigenous tribes to govern themselves. Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between the United States and tribal governments.

Federal Statutes
Many federal statutes specifically recognize the obligation of the federal government to consult with tribal officials on a government-to-government basis and in some instance demand the federal government give special deference to tribal preferences. For example, under an order issued by Secretary of Interior Babbitt, June 4, 1997, the federal government’s implementation of the Endangered Species Act (ESA) gives explicit recognition to tribal priorities. Similarly, other federal statutes and their implementing regulations, such as National Environmental Policy Act, Native American Graves Protection and Repatriation Act, National Historic Preservation Act, and America Indian Religious Freedom Act, lay the basis for recognizing tribal sovereignty through a consultation process.

National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee’s Guide on Consultation and Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in Environmental Decision Making, Appendum A, provides a summary of statutes with specific references to tribes.

Resources:

National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee’s Guide on Consultation and Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in Environmental Decision Making, November 2000.
 View document

National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee’s Meaningful Involvement and Fair Treatment by Tribal Environmental Regulatory Programs, November 2004.
 View document


EPA Policy on Consultation and Coordination with Indian Tribes, 10-page policy establishing national guidelines and institutional controls for consultation across EPA, May 4, 2011.
 View document

The Office of Air Quality Planning and Standards’ Consulting with Indian Tribal Governments, April 2009.
 View document

Situation Assessment and Recommendations for Government-to-Government Consultations between Interior Alaska Tribes and the U.S. Department of Defense on Military Impacts on Interior Alaska, 74-pages, prepared for the U.S. Institute for Environmental Conflict Resolution at the request of Tanana Chiefs Conference by DCH Consulting and UAA, July 2006.
 View document

 

Websites

National Environmental Justice Advisory Council (NEJAC)
The NEJAC is a federal advisory committee to EPA was established September 30, 1993. The Council provides advice and recommendations about broad, cross-cutting issues related to environmental justice, from all stakeholders involved in the environmental justice dialogue.
 www.epa.gov/Compliance/ej/nejac/index.html


Native American and Alaska Native Environmental Collaboration and Conflict Resolution Program
The U.S. Institute's Native American and Alaska Native Environmental Program helps increase the appropriate and effective use of collaborative problem-solving and conflict resolution in environmental matters involving Native American and Alaska Native communities and federal agencies.
 www.ecr.gov/Resources/NativeAmericanTribalConsultationServices.aspx


EPA American Indian Environmental Office Tribal Portal’s Indian Policies 
 www.epa.gov/tp/basicinfo/presidential-docs.html


Government-to-Government Agency Policies
 www.doi.gov/pmb/cadr/programs/native/Government-to-Government-Agency-Policies.cfm


Native American Consultation Database
 www.cast.uark.edu/home/research/archaeology-and-historic-preservation/archaeological-informatics/native-american-consultation-database.html

White House Council on Native American Affairs, established by Executive Order on June 26, 2013 to recognize the government-to-government relationship, as well as the unique legal and political relationship that exists between the federal government and tribes.
 www.whitehouse.gov/the-press-office/2013/06/26/executive-order-establishing-white-house-council-native-american-affairs


U.S. Department of Health & Human Services Tribal Consultation
 www.hhs.gov/iea/tribal/tribalconsultation/

National Historic Preservation Act (NHPA) Section 106 Tribal Consultation Process
 www.gsa.gov/portal/content/101901

 

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