GM 16-061

Consultations on Improving Tribal Input into Federal Agency Decisions on Infrastructure Projects

On September 23, 2016, the Obama Administration distributed a “Dear Tribal Leader” letter inviting Tribal Leaders to a series of consultation sessions on “how the Federal Government can better account for, and integrate tribal views on future infrastructure decisions throughout the country.” The consultations will begin with a listening session on October 11th at the National Congress of American Indians (NCAI) Annual Convention in Phoenix. Then there will be five in-person consultations in Seattle, Albuquerque, Billings, Minneapolis, and Rapid City, followed by a phone consultation on November 21, 2016. The Administration is also accepting written comments until Friday, November 30, 2016. Comments may be submitted at

The “Dear Tribal Leader” letter sets out two questions on which the federal agencies are seeking input from Tribal Leaders:

(1) How can Federal agencies better ensure meaningful tribal input into infrastructure-related reviews and decisions, to protect tribal lands, resources, and treaty rights within the existing statutory framework?

(2) Should the Federal agencies propose new legislation altering the statutory framework to promote these goals?

The Administration’s intent to conduct these consultations was announced on September 9th in a joint statement of the Department of Justice, Department of the Army, and Department of the Interior regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, the lawsuit challenging the Dakota Access pipeline. That statement said that the Corps “will not authorize” construction of the pipeline on Corps land until it can determine whether it needs to reconsider any of its previous decisions regarding the pipeline under the National Environmental Policy Act (NEPA) or other federal laws. The announced consultation sessions are intended to address future infrastructure projects, not the Dakota Access pipeline, although tribal representatives will undoubtedly refer to their experiences with that pipeline project.

In preparation for the consultation sessions, on September 30th, NCAI hosted a webinar for tribal representatives and advocates in which NCAI Executive Director Jacqueline Pata reported that an NCAI workgroup would put together a framework paper to help prepare for the consultations and to be used in preparing written comments. During the webinar, a number of topics were discussed, including:

(1) existing federal decision-making processes and ways in which tribal involvement may be limited, with resulting inadequate consideration of tribal concerns;
(2) the nationwide permit program of the Army Corps of Engineers;
(3) the National Historic Preservation Act (NHPA), historic properties of religious and cultural importance to tribes, the relevance of tribal oral traditions, and addressing Tribal concerns in memoranda of agreement and programmatic agreements;
(4) the trust responsibility and its relevance for consultation with tribes;
(5) possible administrative solutions, including regulatory fixes, updating relevant executive orders regarding consultation, government-to-government negotiations, and how to make consultation a more collaborative process;
(6) analyzing the relevance of the United Nations Declaration on the Rights of Indigenous Peoples, including the “free, prior, and informed consent” provisions;
(7) possible congressional solutions, including analyzing reform to NHPA, NEPA, the Clean Water Act, and other laws; and
(8) a tribal communications strategy to advance Indian Country advocacy and counter opposition.

We believe that the Administration’s commitment to conduct these consultation sessions is a positive development. Whether it leads to real improvements in federal agency decision-making processes, of course, remains to be seen. That will depend, in part, on what tribes have to contribute during the consultation sessions.

Please let us know if you would like additional information or would like us to assist you with preparations for the upcoming consultation sessions or with the development of written comments.