On May 17, 2011, the Department of the Interior (DOI) published its proposed Policy on Consultation with Indian Tribes for review and comment in the FEDERAL REGISTER (attached). The deadline for filing comments is July 18, 2011.
The proposed Policy is a revised version of the draft Policy that was issued on January 14, 2011, for review and comment by tribal leaders. See our General Memorandum 11-015 (February 4, 2011). In our review of the proposed Policy, we noticed some changes in the organization of the document, as well as some relatively minor changes in wording. This Memorandum takes note of only a few of the changes.
Background. The proposed Policy was developed in response to President Obama’s Memorandum on Tribal Consultation (74 Fed. Reg. 57881 (November 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 (November 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 Proposed Policy. The proposed Policy is organized using nine main headings: I. Preamble; II. Guiding Principles; III. Definitions; IV. Accountability and Reporting; V. Training; Communication; VI. Innovative and Effective Consultation Practices; VII. Consultation Guidelines; VIII. Supplemental Policies; and IX. Disclaimer. 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 VII. 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.” The 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 cultural practices, lands, resources, or access to traditional areas of cultural or religious importance on Federally-managed lands; or the ability of the Tribe to provide services to its members.” The draft version of the Policy had also included actions with effects on “Tribal members’ traditional way of life,” but that clause has been deleted in the proposed version.
The substance of the draft Tribal Consultation Policy is found, for the most part, under heading VII. 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). In the proposed version, some of the details on the role of the TGO (as well as that of the “Tribal Liaison Official” (TLO)), which had been in the definitions section, have been moved to this section.
The proposed 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. (These stages are set out under sub-heading E; they had been under sub-heading D in the draft, but sub-heading D is now “Consultation Process Support.”) At the Initial Planning Stage, each Bureau or Office is supposed to consult at this stage “as early as possible.” This had been “when possible” in the draft. 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 that it may propose.
Commentary. From our initial analysis of the proposed Policy, we think that some improvements have been made from the draft. We continue to be concerned, however, that the Policy may contribute to confusion on the part of DOI Bureaus and Offices regarding their responsibilities to consult with tribes pursuant to the requirements of specific statutes by creating the impression that compliance with the Policy is all that is required, i.e., that compliance with the Policy fulfills the requirements of such specific statutes. The leading example of a specific statutory mandate is section 101(d)(6)6 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 when a proposed federal undertaking would affect a historic property that holds religious and cultural importance for such tribe. Given that the proposed 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 NHPA, pursuant to which a tribe has a statutory right to become a “consulting party.” At the very least, the Policy should expressly state that it does not relieve DOI Bureaus and Offices from their legal obligations to consult with tribes pursuant to specific statutory mandates.
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