On January 14, 2011, the Department of the Interior (DOI) issued the attached draft Tribal Consultation Policy for review and comment by tribal leaders. In a news release, Secretary Salazar said that DOI needs a policy that “embodies the best consultation practices available, responds to the needs of tribal leaders to be more engaged in policy development and promotes more responsible decision-making on issues affecting American Indians and Alaska Natives.” See www.doi.gov/news/pressreleases/index.cfm. The Secretary has set a laudable goal. For that goal to be realized, we think the draft needs some work. We expect that the final version will be improved through input from tribes. The deadline for comments from tribes is March 14, 2011.
Background. The draft policy was developed in response to President Obama’s Memorandum on Tribal Consultation (74 Fed. Reg. 57881 (Nov. 9, 2009)), which stated the Administration’s commitment to “regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including … complete and consistent implementation of Executive Order 13175.” That Executive Order, “Consultation and Coordination with Indian Tribal Governments,” was signed by President Clinton (65 Fed. Reg. 67249 (Nov. 9, 2000)). President Obama’s memorandum directed the heads of federal departments and agencies to take certain steps to implement Executive Order 13175, including developing a plan of actions, submitting annual progress reports, and designating an official to coordinate implementation of the plan and preparation of progress reports.
Overview of the Draft Policy. The draft Tribal Consultation Policy is organized using nine main headings: I. Preamble; II. Guiding Principles; III. Definitions; IV. Training; V. Communication; VI. Accountability and Reporting; VII. Innovations in Consultation Practices; VIII. Consultation Guidelines; and IX. Supplemental Policies. The scope of the draft Tribal Consultation Policy is any “Departmental Action with Tribal Implications.” This term is defined under heading III, but its importance does not become apparent until heading VIII. This term is similar to, but somewhat different from “Policies that have tribal implications” as defined in Executive Order 13175. The DOI term is more expansive in that, in addition to “regulations, legislative comments or proposed legislation, and other policy statements,” it includes “guidance” and “grant funding formula changes.” DOI also uses the term “operational activity” rather than “action” as in the Executive Order. The “tribal implications” part of the Executive Order definition covers “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of responsibilities between the Federal Government and Indian tribes.” The DOI term adds effects on “Tribal members’ traditional way of life, Tribal lands, Tribal resources, or access to traditional areas of cultural or religious importance on Federally-managed lands; or the ability of the Tribe to govern its members or to provide services to its members.”
The substance of the draft Tribal Consultation Policy is found, for the most part, under heading VIII. Consultation Guidelines. Each Bureau or Office must decide for itself when consultation is required, that is, when a proposed action has “Tribal Implications.” A tribe may request consultation if it believes that a Bureau or Office is considering a Departmental Action with Tribal Implications. Any such request is to be made to the Department’s “Tribal Governance Officer” (TGO). For matters involving only one Bureau or Office, the TGO will encourage tribes to ask for consultation directly with an appropriate representative of the Bureau or Office. Reading paragraph B under heading VIII together with the definition of “Tribal Liaison Official” (TLO) under heading III, it appears that a tribe’s request for consultation with a specific Bureau or Office should be filed with the TLO of that Bureau or Office, although the term TLO is not used in the Guidelines set out under heading VIII.
The draft Tribal Consultation Policy conceives of consultation as consisting of three stages: (1) Initial Planning Stage; (2) Proposal Development Stage; and (3) Implementation of Final Federal Action Stage. The discussion of the Initial Planning Stage is rather brief. Each Bureau or Office is supposed to consult at this stage “when possible.” The discussion of the Proposal Development Stage suggests the following non-exhaustive examples of processes that can be used for consultation: Negotiated Rule Making; Tribal Leader Task Force; Series of Open Meetings; and Single Meetings. The Bureau or Office will select a process that “maximizes the opportunity for timely input by Tribes and is consistent with both Tribal and Bureau schedules.” Whatever process is selected, the Bureau or Office is supposed to solicit the views of “affected Tribes” regarding the timeline for this stage of the consultation process. At the third stage of consultation, the “Implementation of Final Federal Action Stage,” the Bureau or Office “should” communicate the decision to affected tribes in writing. The Bureau or Office “may consider” implementing a “post-consultation review process.” The Bureau or Office “will consider” training or technical assistance for any new regulation or policy.
Commentary. From our initial analysis of the draft Tribal Consultation Policy, we think there is room for improvement in the draft. At a number of points, the wording of the draft policy does not clearly convey the intended meaning. More importantly, there are some substantive points on which, we think, the draft policy should be reworked. One such point is the final paragraph under heading II, which says: “This policy creates a framework for synchronizing the Department’s consultation practices with its Bureaus and Offices by providing an approach that applies in all circumstances where statutory or Administrative opportunities to consult with Indian Tribes exist.” (Emphasis added.) This sweeping assertion is simply not accurate. The draft policy applies to any “Departmental Action with Tribal Implications,” including any “operational activity” that may affect access to areas of “cultural or religious importance on Federally-managed lands.” Such an activity will very likely constitute a federal “undertaking” for purposes of section 106 of the National Historic Preservation Act (NHPA), pursuant to which a tribe has a statutory right to become a “consulting party” in section 106 consultation. At the very least the lack of attention to the interface with NHPA will generate confusion.
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