GUIDE ON
CONSULTATION AND COLLABORATION WITH
INDIAN TRIBAL GOVERNMENTS
AND
THE PUBLIC PARTICIPATION OF
INDIGENOUS GROUPS AND TRIBAL MEMBERS IN
ENVIRONMENTAL DECISION MAKING
PREPARED BY THE
NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
INDIGENOUS PEOPLES SUBCOMMITTEE
A FEDERAL ADVISORY COMMITTEE TO THE U.S. ENVIRONMENTAL PROTECTION AGENCY
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NATIONAL
ENVIRONMENTAL JUSTICE
ADVISORY COUNCIL
November 22, 2000
Ms. Carol Browner, Administrator
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
RE: Guide on Tribal Consultation and Public Participation
Dear Administrator Browner:
The Indigenous Peoples Subcommittee, of the National Environmental Justice Advisory
Council (NEJAC), created the enclosed "Guide on Consultation and Collaboration with Indian Tribal
Governments and the Public Participation of Indigenous Groups and Tribal Members in
Environmental Decision Making" to address concerns raised about the lack of effective consultation
and collaboration between federal agencies and American Indian and Alaska Native tribal
governments. The NEJAC hopes this Guide will help EPA, and other interested stakeholders, better
understand the necessity and principles for effective consultation with tribal governments and the
meaningful involvement of tribal communities and tribal members in public participation processes.
The NEJAC looks forward to the Agency's consideration of this Guide and the facilitation
of any discussions and actions to bring these recommendations to fruition. If I can be of further
assistance in this matter, please do not hesitate to contact me at (205) 733-0178.
Sincerely,
/signed/
Haywood Turrentine, Chairman
National Environmental Justice
Advisory Council
A Federal Advisory Committee to the U. S. Environmental Protection Agency
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INDIGENOUS PEOPLES SUBCOMMITTEE OF THE
NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
1999-2000
Disclaimer
This report and recommendations have been written as a part of the activities of the National
Environmental Justice Advisory Council, a public advisory committee providing extramural
policy information and advice to the Administrator and other officials of the United States
Environmental Protection Agency (EPA). The Council is structured to provide baknced, expert
assessment of issues rekted to environmental justice. This report has not been reviewed for
approval by the EPA and, hence, its contents and recommendations do not necessarily represent
the views and policies of the EPA, nor of other agencies in the Executive Branch of the federal
government, nor does mention of trade names or commercial products constitute a
recommendation for use.
Indigenous Peoples Subcommittee (IPS) Members:
Tom Goldtooth, Chair, Indigenous Environmental Network
Dwayne Beavers, Cherokee Nation*
Brad Hamilton, State of Kansas
Jennifer Hill-Kelly, Oneida Nation of Wisconsin
Nancy Howard, Newport News Waterworks*
George Godfrey, Haskell Indian Nations University*
Sarah James, Council of Athabascan Tribal Governments
Charles Miller, Charles Miller Law Offices
Gerald R. Prout, FMC Corporation*
Moses Squeochs, Confederated Tribe sand Bands of Yakima Nation
DeanB. Suagee, Vermont Law School
Jana L. Walker, Law Office of Jana Walker**
Designated Federal Officials:
Daniel Gogal, Designated Federal Official (DFO), Office of Environmental Justice, EPA
Anthony Hanson, Alternate DFO, American Indian Environmental Office, EPA*
Bob Smith, Alternate DFO, American Indian Environmental Office, EPA**
* Service ended in 1999
* * Service began in 2000
Acknowledgment: The IPS is thankful for the assistance of three students in the Vermont Law School Indian
Country Environmental Justice Clinic in the preparation of this document: Meredith Hatfield, J.D. 1999;
Kenneth Dobson, J.D. 2000; and Ivy Anderson, J.D. 2000.
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NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
A FEDERAL ADVISORY COUNCIL TO THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
November 15, 2000
The Indigenous Peoples Subcommittee, a subcommittee of the National Environmental
Justice Advisory Council (NEJAQ, created this "Guide on Consultation and Collaboration with
Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members
in Environmental Decision Making" to address concerns raised about the lack of effective
c onsultation and collaboration between federal agencies and Americanlndian and Alaska Native tribal
governments. The Guide also responds to testimony before NEJAC that, in some instances, existing
public participation processes have provided inadequate opportunities for tribal communities and
tribal members to have meaningful involvement in environmental and public health decision-making
processes. Accordingly, the NEJAC hopes this Guide will help its readers better understand the
necessity and principles for effective consultation with tribal governments and the meaningful
involvement of tribal communities and tribal members in public participation processes.
Because the relationships between tribal, federal, state, and local governments continue to
evolve, the NEJAC intends that the Guide be a living, dynamic document. The Indigenous Peoples
Subcommittee pkns to monitor this evolution and revise the Guide in consultation with the EPA's
Office of Environmental Justice, AmericanlndianEnvironmental Office, Tribal Operations Committee
(TOC) and, as recommended bythe TOC, the National Congress of American Indians. On this point,
readers should note that, after the finalization of the Guide on October 17, 2000, President Clinton
issued Executive Order 13175 of November 6, 2000, "Consultation and Coordination with Indian
Tribal Governments." 65 Fed. Reg. 67249 (Nov. 9, 2000). The new Order strengthens the policy on
tribal consultation expressed in Executive Order 13084 of May 14, 1998, which is discussed in the
Guide. For the convenience o f readers, a copy of the new Order is attached at the end of the Guide.
The NEJAC believes that the Guide may be particularly useful to federal agencies as they take steps
to comply with the new Executive Order.
Thank you for your efforts to ensure that effective consultation, collaboration, and public
participation occurs within Indian country and Alaska Native villages. Please send comments or other
information you wish to share with the Subcommittee to: Designated Federal Official for the
Indigenous Peoples Subcommittee, Office of Environmental Justice (2201-A), 1200 Pennsylvania
Avenue, NW, Washington, DC 20460.
Sincerely,
/signed/
/signed/
Hayw oo dTurr entitle, Chair
National Environmental Justice Advisory Council
Tom Goldtooth, Chair
Indigenous Peoples Subcommittee
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INTRODUCTION
The Indigenous Peoples Subcommittee is one of six subcommittees of the National
Environmental Justice Advisory Council (NEJAC), a federal advisory committee of the U.S.
Environmental Protection Agency (EPA). The NEJAC believes the federal government has a
responsibility to consult and collaborate with American Indian and AlaskaNative tribal governments
as an essential element ofits trust responsibiityto federallyrecognizedtribalgovernments. However,
the NEJAC contends that effective consultation and collaboration between federal agencies and
federally recognized tribal governments is lacking. The NEJAC also believes that some existing
public participation processes provide inadequate opportunities for tribal members and tribal
communities to have meaningful involvement in the environmental and public health decisions
affecting them.
To facilitate more effective consultation, promote genuine collaboration, and improve public
participation, the Indigenous Peoples Subcommittee prepared this "Guide on Consultation and
Collaborationwith Indian Tribal Governments andthe Public Participation oflndigenous Groups and
Tribal Members in Environmental Decision Making." EPA's Office of Environmental Justice
provided assistance in the development of this Guide. The Subcommittee solicited, received and
applied a variety of comments on several working drafts of the Guide from tribal governments and
organizations, federal agencies including various EPA offices, and other interested parties, and
welcomes additional input. Accordingly, one purpose of this Guide is 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.
The Guide describes the sovereignty of federally recognized tribal governments and explains
how they should be treated in a government-to-government fashion by federal and state agencies. It
also highlights various laws and policies that require and support recognition of tribal governments
as sovereign entities, and addresses the environmental and public health impacts that may adversely
affect the lives of American Indian and Alaska Natives.
The Guide defines 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 allparties. It illustrates howboth
of these processes are important pathways to achieving environmental justice for tribes.
The NEJAC intends that the Guide be used as a general resource for all people and
governmental agencies—whether federal, tribal, state, or local—needing information to promote
environmental justice in Indian country and among Akska Natives. Other indigenous groups may
also benefit from this Guide. They include Native Hawaiian organizations, state recognized and non-
recognized tribes, and community-based indigenous organizations, as well as state and local
governments and businesses operating on or near Indian reservations. The NEJAC hopes that the
Guide will not be considered the "final word" on tribal consultation, but instead will stimukte fresh
dialogue among federal and tribal governments, as well as other interested parties. Towards that end,
the NEJAC encourages the use and sharing of this Guide with all interested parties.
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TABLE OF CONTENTS
Introduction 3
Executive Summary 5
Chapter 1: Why Consultation with Tribes is Important 7
A. The Legal Status and Rights of Tribes
• Tribal Sovereignty
• Federal Trust Responsibility
• Treaty Rights
• Government-to-Government Relations
• Non-Federally Recognized Tribes
• Indigenous Groups and Individual Tribal Members
B. Presidential Directives on Rektions with Indian Tribes
• Executive Order on Consultation and Collaboration with Indian Tribes
• Memorandum on Government-to-Government Relations
• Executive Order on Sacred Sites
• Executive Order on Environmental Justice
EPA Policy on Environmental Programs on Indian Reservations
C.
Chapter 2:
A.
B.
C.
D.
Chapter 3:
A.
B.
Chapter 4:
A.
B.
C.
D.
Conclusion
Addenda:
13
What Consultation Means
How Consultation Differs from Public Participation
Affirmative Obligations of Federal Agencies to Consult with Tribes
Consultation in Addition to, Not Instead of, Public Participation
Accommodating Tribal Rights and Federal Environmental Law (An Example)
Methods for Effective Consultation
Guiding Principles
Critical Elements
• Preparation for Consultation
• Participants in Consultation and Collaboration
• Logistics and Mechanics
Public Participation in Indian Country
Why Public Participation is Important
Public Participation in EPA's Programs
Public Participation in Tribal Environmental Programs
How to Provide for Effective Public Participation
A. Statutory and Other Legal Requirements
B. Various Agency Consultation Protocols and Guidelines
C. Consultation Guiding Principles and Critical Elements
D. Public Participation Guiding Principles and Critical Elements
E. Glossary
F. Indigenous Peoples Subcommittee Mission Statement
G. NEJAC Fact Sheet
16
21
26
30
43
46
48
51
56
57
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EXECUTIVE SUMMARY
American Indian and Alaska Native tribes are sovereign governments recognized as self-
governing under federal kw. American Indians and Alaska Natives are also citizens of the United
States. Because of their unique sovereign status within the federal governmental capacity of the
United States, federally recognized tribes have the power to make and enforce laws on their lands,
and to create governmental entities, such as tribal courts. Under its well recognized "trust
responsibility" to Indian tribes, the federal government has special fiduciary obligations to protect
tribal resources and uphold the rights of indigenous peoples to govern themselves on tribal knds.
Many federal kws have delegated authority to tribes in recognition of their sovereign status.
The unique legal status of American Indian and Akska Native tribes creates an important
requirement for governmental entities, and other stakeholders, to understand that the federal
government must c onsult directly with tribal governments when contempkting actions that may affect
tribal lands, resources, members, and welfare. Tribal sovereignty is thwarted when federal
government agencies and departments attempt to treat tribes in the same manner as any other
interested members of the public, in a conventional public participation process. Rather, in
recognition of their status as sovereign nations, the federal government should collaborate directly
with tribal governments in a consultative process, which leads to decision-making.
ConvQntionalpublic participation initiatives allow federal officials a means to inform affected
parties about proposed future actions. As citizens of the United States, individual tribalmembers and
tribal non-governmental organizations must be afforded the same opportunities to participate in the
federal decision-making processes as would any other citizen or non-governmental organization.
Though their input may be solicited, the process does not require the federal government to change
its decision based on localized, public input.
On the other hand, consultation between the federal and tribal governments should be a
collaborative process between government peers that seeks to reach a consensus on how to proceed.
Many federal statutes specifically recognize the obligation of the federal government to consult with
tribal officials on a government-to-government basis. Moreover, in some instances, specific
requirements 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.1 This order can be considered a prototype for specifying how government-to-
government consultation is to be conducted.
Similarly, other federal statutes and their implementing regulations (e.g. National
Environmental Policy Act, Native American Graves Protection and Repatriation Act, National
Historic Preservation Act, and Americanlndian Religious Freedom Act) lay the basis for recognizing
tribal sovereignty through a consultation process. In each case, certain basic guiding principles
should be followed: (1) tribal governments should be involved in the actual decision making process
at the earliest practicable moment; (2) each agency should institutionalize its own consultation
procedures for Indian governments; (3) federal agencies should train their staff on how to consult
with Indian governments; and (4) integrity and honesty should always be paramount in any
consultation process.
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The optimal goal of tribal consultation should be to achieve consensus between triballeaders
and federal officials on how to identify, consider, and address issues or concerns. These meetings
should be supplemented with broader public meetingsto 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.
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CHAPTER 1: WHY CONSULTATION WITH TRIBES IS IMPORTANT
This Chapter briefly discusses why meaningful consultation with federally recognized tribes
is important. In many situations, consultation with tribes is required by kw. Some of these legal
authorities are discussed in Addendum A. In other situations, consultation may not be mandated by
law, but should be done out of respect for the status that Indian tribes occupy in our federal system
of government, as well as the unique tribal interests potentially affected.
A. The Legal Status and Rights of Tribes
Indian tribes have a special status in American law as sovereign governments. Tribes also
possess certain kinds of rights that are different from the rights of other Americans. Some of the
special rights of tribes are based on treaties, some are based on acts of Congress, some are based on
actions taken by the Executive Branch of the Federal Government, and others are clarified by federal
court rulings. Consultation with tribes must be informed by awareness of the special status and rights
that tribes possess.
1. Tribal Sovereignty
As early as the 1830s, the U.S. Supreme Court recognized that Indian tribes are "distinct
nations, independent of each other and of the rest of the world, having institutions of their own, and
governing themselves by their own laws."2 Consequently, federal law recognizes that Indian tribes
possess inherent sovereignty over their members and their territory. Sovereignty means that tribes
have the power to exercise self-determination, to make and enforce laws, and to establish courts and
other forums for the resolution of disputes. The sovereignty that Indian tribes possess is inherent,
which means that it comes from within the tribe itself and existed before the founding of the United
States. It is this sovereignty that separates Indian tribes from other ethnic groups.
Under federal law, tribal sovereignty is not absolute, but rather is subject to certain limits
placed on the tribes by Congress and the federal courts. According to rulings ofthe Supreme Court,
tribes are said to retain all those aspects of their original sovereignty except aspects that have been
given up in a treaty, taken away by an act of Congress, or divested by implication as a result of their
dependent status.3 Many legal scholars have criticized the Supreme Court's recent Indian law
jurisprudence, particularly the implicit divestiture rule.4 Some tribal nations do not accept certain
principles of federal Indian kw, such as the notion that tribes are dependent upon the federal
government. In addition to inherent sovereignty, tribal governments may also exercise authority
delegated to them by Congress.
Because tribes are governments, the relationship between tribes and the federal government
is sometimes described as "government-to-government," and the President has directed each federal
agency to operate within this relationship.5 Among other things, this means that federal agencies are
not to treat Indian tribes as "interest groups" or simply as part ofthe general pub lie. The relations hip
between tribes and states can also be described as "government-to-government."
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2. The Federal Trust Responsibility
The cornerstone of the government-to-government relationship is the federal government's
trust responsibility to Indian tribes. Under the trust doctrine, the federal government has "charged
itself with moral obligations of the highest responsibility and trust'*6 that require agencies to ensure
the protection of tribal interests as they fulfill their overall missions. This doctrine has its roots in the
treaties through which the tribes ceded vast portions of their aboriginal lands to the United States in
exchange for the federal government's solemn promise to protect the rights of the tribes to continue
to exist as self-governing nations within the lands that they reserved for themselves. The trust
doctrine is also based on the practice of the federal government holding legal title to most Indian land
in trust for the beneficial use of Indian tribes and tribal members. Whether or not the federal
government holds legal title to Indian knds within the reservation of a particular tribe, federal law
prohibits the transfer of property interests in Indian knd except as authorized by Congress.
In practice, the trust responsibility gives rise to distinctive fiduciary obligations on the part
of federal agencies whichmust be "exercised according to the strictest fiduciary standards."7 As the
Supreme Court expkined, federal officials are "bound by every moral and equitable considerationto
discharge the federal government's trust with good faith and fairness" when dealing with Indian
tribes.8 The trust doctrine includes duties to manage natural resources for the benefit of tribes and
individual Indian landowners, and the federal government has in some cases been held liable for
damage caused by mismanagement.9
The trust obligations are not limited solely to the management of land and other trust
resources. For example, an overall "protectorate"role is reflected in Congress' express recognition
that "the United States has a trust resp onsibility to each tribal government that includesthe protection
of the sovereignty of each tribal government."10 In the modern era of tribal self-determination,
tensions sometimes arise between the obligation of the federal government for the management of
trust natural resources and the obligation to protect and support tribal sovereignty.
In some of the modern cases, courts have drawn a distinction between a "general trust
responsibility" and a "specific trust responsibility." Specific trust responsibilities arise out of treaties,
executive orders and statutes that specifically address Indian tribes and their rektionships with the
federal government.11 Statutes that give agencies "comprehensive" control over the management of
tribal resources also create specific trust duties. If, however, an interaction between a tribe and an
agency does not involve any particular statute, regulation, or treaty specifically addressing the tribe
or its resources, then the trust responsibility can be described as "general" in nature. Whether
characterized as general or specific, the trust obligation imposes an additional duty with which
agencies must comply when exercising discretion in carrying out their statutory duties. The general
trust responsibility is not necessarily satisfied by compliance with general statutes and may impose
a higher duty of protection than statutes may otherwise require.12
While the Bureau of Indian Affairs is the agency with the lead role in carrying out the trust
responsibility, the courts have ruled that other federal agencies also have trust obligations to Indian
tribes. The EPA Policy for the Administration of Environmental Programs on Indian Reservations,
discussed further in Section C of this Chapter, expressly acknowledges that the trust responsibility
applies to EPA.
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The plenary power of Congress is another key doctrine of federal Indian kw that is related
to the trust doctrine. Under the plenary power doctrine, the federal government is vested by the
Constitution with exclusive authority over relations with Indian tribes.13 Because the power of
Congress is exclusive, states generally kck governmental authority over Indian tribes and tribal
members within Indian country, unless Congress has expressly delegated authority to states. The
plenary power is a double-edged sword. It has been used to unilaterally take away aspects of tribal
sovereignty and to exercise federal control over tribal lands and resources. On the other hand,
Congress has sometimes used its plenary power to prevent state governments from interfering with
tribal self-government.14 The Supreme Court has ruled that any exercise of this power must be
rationally related to the fulfillment of Congress' unique obligation toward Indian tribes.15
3. Treaty Rights
"A treaty, including one between the United States and an Indian tribe, is essentially a contract
between two sovereign nations."16 The United States has entered into more than 400 treaties with
Indian tribes. The United States is also the successor-in-interest to some treaties between tribes and
the sovereigns of Europe. In the treaties, tribes typically gave up large parts of their aboriginal
territories in exchange for promises from the federal government, including the promise ofprotection
in the land they reserved to themselves. Because the United States received rights to land from the
tribes, the Supreme Court has described a treaty as a grant of rights from the Indians with a
reservation of those rights not granted.17 Thus a treaty does not have to reserve expressly hunting
and fishing rights within an Indian reservation for such rights to exist; rather, such on-reservation
rights exist unless expressly given up.18 In many treaties, tribes expressly reserved certain kinds of
rights in knds and waters outside their reservations, such as the right to fish at usual and accustomed
places.
In 1871, Congress ended the practice of entering into treaties with Indian tribes, but
subsequently engaged in the practice ofratifying agreements with tribes negotiated by the Executive
Branch. In addition, after treaty making ended, many reservations were established by Executive
Orders. The Supreme Court has ruled that Congress has the power to break treaties with tribes, just
as it has the power to break treaties with foreign countries, but unless an act of Congress shows a
clear intent to break a treaty, it continues in effect.19 Even where Congress does break a treaty, the
parts of the treaty that are not broken continue in effect.
In the early years of the Republic, some tribes in the eastern United States entered into treaties
with state governments. Following the passage of the 1790 Nonintercourse Act, however, such
treaties are generally not legally binding because Congress did not authorize them, and are therefore
void under federal law.20
4. Government-to-Government Relations
Because Indian tribes are sovereign governments, the federal agencies are expected to carry
out their dealings with the tribes in the framework of a government-to-government relationship.
Basically, this means that federal officials should be aware that each tribe is a distinct sovereign,
separate from the federal government and separate from the states.
The relationship between the tribes and the states can also be described as government-to-
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government. In the relat ions betwe en tribes and stat es, per sons representing states should remember
that tribes are different from the states. The status of tribes has been described as that of "domestic
dependent nations," and, as such, their sovereignty pre-dates the founding of the United States.21
As an example of how the government-to-government relationship is distinct and separate
from public involvement obligations, the Unfunded Mandates Reform Act of 1995 provides that
meetings between federal agency officials and "elected officers of state, local, and tribalgovernments
(or their designated employees with authority to act on their behalf) acting in official capacities" are
not subject to the Federal Advisory Committee Act22 "where such meetings are solely for the purpo se
of exchanging views, information, or advice relating to the management or imp lementationof Federal
programs .. ."23 The Tribal Caucus ofthe EPA Tribal Operations Committee is another group which
fits within this exception.24
5. Non-Federally Recognized Tribes
There are indigenous communities who, although they existed prior to the formation ofthe
United States, are not currently recognized as sovereigns by the federal government. State
governments however, recognize some of these tribal communities as having a specialpolitical status
within the state. Some ofthe indigenous communities, which are not recognized as having a special
legal status, are currently engaged in seeking federal and/or state recognition.
Although such groups kck recognition as sovereigns, they may have environmental and
public health concerns that are different from other groups or from the general public. These
differences may exist dueto a subsistence lifestyle and/orunique cultural practices. Agencies should
seek to identify such groups and to include them in the decision-making processes. Although they
do not have a unique political relationship with the federal government, non-federally recognized
tribes may be comprised of "racial minorities" and therefore benefit fromthe full range of civil rights
law protections.
6. Indigenous Groups and Individua I Tribal Memb ers
As citizens of the United States, tribal members (as individuals or representatives of
indigenous organizations) have aright to environmental and public health protection under federal
law comparable to that afforded to other citizens. Accordingly, individual tribal members and/or
representatives from tribal organizations have a right to contact the federal government to express
their environmental and public health concerns, whether such cone erns arise on or off the reservation.
Federal agencies must respond to such expressions of concern with the same respect that they afford
other citizens and groups. Indeed, federal agencies should take affirmative steps to involve and
communicate with individual tribalmembers and/or representatives from tribal organizations. Such
affirmative efforts should often go beyond mere letter writing, and include opportunities for direct
face to face contact (See Chapter 3, "Methods for Effective Communication").
B. Presidential Directives on Relations with Indian Tribes
To ensure that all federal agencies interact with tribes in a manner consistent with their
sovereign status and their rights under federal kw, the President has issued a number of directives
to federal agencies. Some of these directives are summarized below.
10
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1. Consultation and Coordination with Indian Tribal Governments
Executive Order 13084, Consultation and Coordination With Indian Tribal Governments,
signed on May 14,1998, directs federal agencies to respect tribal self-government and sovereignty,
tribal rights, and tribal responsibilities whenever they formulate policies "significantly or uniquely
affecting Indian tribal governments."25 When developing regulatory policies, agencies should provide
for "meaningful and timely" consultation with tribes, and must also consider the compliance costs
imposed upon tribal governments. The Order further states: "On issues relating to tribal self-
government, trust resources or treaty and other rights, each agency should explore and, where
appropriate, use consensual mechanisms for developing reguktions, including negotiated rule-
making."
2. Government-to-Governm ent Relations
On April 29, 1994, President Clinton executed a Presidential Memorandum outlining
principles that executive agencies should follow in their interactions with tribal governments.26 The
purpose of the memorandum is to clarify the federal government's responsibility to operate within
a government-to-government relationship with tribes. It directs agency heads to ensure that their
agency personnel are familiar with the memorandum and that they comply with its requirements. The
five main principles require agencies to:
(a) Operate within a government-to-government relationship with tribes.
(b) Consult, to the greatest extent practicable, with tribes prior to taking actions that
affect tribes. These consultations must be open and candid so that all interested
parties may determine the potential impact of proposed actions.
(c) Assess the impact of all federal plans, proj ects, programs, and activities on tribal trust
resources, and assure those tribes' rights and concerns are considered during the
development of plans, projects, programs and activities.
(d) Take appropriate steps to remove procedural impediments to working directly and
effectively with tribes on activities affecting the property or rights of tribes.
(e) Work cooperatively with other agencies to acco mplish the go als o f this memorandum.
The memorandum also directs agencies to apply the requirements of two other Executive
Orders to address unique needs of tribes - Executive Orders No. 12875 "Enhancing the
Intergovernmental Partnership"27 and 12866 "Regulatory Planning and Review."28
3. Indian Sacred Sites
Executive Order 13007, Indian Sacred Sites (May 24,1996), directs each federal agency that
manages federal knds to "(1) accommodate access to and ceremonial use of Indian sacred sites by
Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred
sites." This executive order also directs each federal agency to report to the President on "procedures
implemented or proposedto facilitate consultation with appr opriat e Indian tribes and religious leaders
11
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4. Environmental Justice
Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations," directs each federal agency to make achieving
environmental justice part of its mission.30 This executive order sets forth a number ofresponsibilities
for federal agencies, including the requirements that each agency develop a strategy to identify and
address "disproportionately high and adverse human health or environmental effects of its programs,
policies, and activities on minority popuktions and low-income populations." In addition, section
6-606 of this executive order states: "Each Federal agency responsibility set forth under this order
shall apply equally to Native American programs." This section also directs that the Department of
the Interior, incoordination with the Working Group [established by the executive order], and, "after
consultation with tribal leaders, shall coordinate steps to be taken pursuant to this order that address
Federally recognized Indian tribes."
C. EPA Policy on Environmental Programs on Indian Reservations
In 1984, EPA became one of the first federal agencies outside the Department ofthe Interior
to adopt a formal policy statement on its relationship with Indian tribes and the implementation of its
programs on Indian reservations. This EPA Policy, titled "Policy for the Administration of
Environmental Programs on Indian Reservations"31 (EPA 1984 Indian Policy), includes nine
principles, some of which are particularlyrelevant to consultation with tribes. For example, principle
1 recognizes the government-to-government relationship and states that EPA "stands ready to work
with Indian tribal governments on a one-to-one basis." Principle 2 recognizes thattribalgovernments
are the "primary parties for setting standards, making environmental policy decisions and managing
programs for reservations." Principle 5 acknowledges the federal trust responsibility and states that,
in keeping with this responsibility, EPA will "assure that tribal concerns and interests are considered
whenever EPA's actions and/or decisions may affect reservation environments." Principle 6 states
that EPA will "encourage cooperation between tribal, state and local governments to resolve
environmental problems of mutual concern." Principle 9 states that EPA will "incorporate these
Indian Policy goals into its planning and management activities, including its budget. ..." However,
despite the EPA 1984 Indian Policy, federal funding for tribal environmental programs and
environmental enforcement within Indian country has been inadequate and inequitable, particularly
in light of the billions of federal dollars spent on state environmental efforts over the last three
decades, although funding for tribal programs has increased substantially inrecent years. Inadequate
funding for tribal programs is considered by many to be an environmentaljustice issue, and is one of
the key factors which impedes effective consultation with tribes due to the limited capacity of tribal
environmental programs.
12
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CHAPTER 2: WHAT CONSULTATION MEANS
Federal agencies use terms such as "public participation" and "consultation" to describe
processes for facilitating public input and/or involvementingovernmentdecision-making. Otherterms
include "stakeholder involvement," "public-private partnerships," and "collaboration." When a
federal agency works in a reciprocal way with one or more non-federal entities in fashioning a
solution to a problem andincarrying out the solution, the term "collaboration" maybe more accurate
than "consultation." This is especially true in Indian country.
The terms represent points ona spectrum, from a minimal level of effort to inform the public
about what a government agency is doing to providing genuine opportunities for affected individuals
and groups to influence government decisions. In some cases, involvement in an agency decision may
extend to participation in carrying out the decision. This may be particularly appropriate when an
entity affected by the agency decision is itself a governmental entity, such as an Indian tribe. While
these terms do not have standardized definitions and mean different things to different people, as
discussed in this Chapter, in Indian country, consultation is a distinct concept.
A. How Consultation Differs from Public Participation
Many federal statutes require government agencies to inform the public about their actions
and to provide opportunities for concerned members of the public to express their views. For
example, the Administrative Procedure Act requires all federal agencies to publish their proposed
rules (also known as regulations) inthe Federal Register and solicit comments from the public.32 Only
after having taken this step to solicit public involvement can a federal agency publish final rules that
have the force of law. State agencies are subject to similar requirements under state law, and many
tribal governments have imposed similar requirements on tribal agencies.
In addition to requirements imposed by statutes, rules issued by federal agencies can impose
requirements to provide opportunities for public involvement. A leading example can be found in the
rules issued by the Council on Environmental Quality to implement the National Environmental Policy
Act (NEPA), which establish extensive requirements for public involvement in the preparation of
environmental impact statements.33
Although there is no standard definition of "consultation," it generally does meanmore than
simply providing information about what an agency is planning to do and allowing concerned people
to comment. Rather, "consultation" generally means that there must be two-way communication.
In its guidelines for federal agency historic preservation programs, the National Park Service provides
one definition of "consultation":
"Consultation means the process of seeking, discussing, and considering the views
of others, and, where feasible, seeking agreement with them on how historic
properties should be identified, considered, and managed. Consultation is built
upon the exchange of ideas, not simply providing information"34
This definition is also incorporated in the regulations of the Advisory Council on Historic
Preservation dealing with consultation under Section 106 of the National Historic Preservation Act.35
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While consultation means more than simply providing information, it does not mean that the
parties being consulted have the power to stop a federal agency action by withholding consent.36
There may be instances in which a federal agency decides not to proceed with a proposed action as
a result of consultation. In some instances another federal agency or a non-federal entity may have
the legal authority to stop a proposed action. In other cases, however, consultation does not lead to
an agreement, but rather ends when it becomes clear that an agreement will not be reached. In some
situations in which a tribe does not have legal authority to prevent a federal agency from going
forward with a proposed action, an agency nevertheless may decide not to proceed because to do so
would jeopardize the existence of an ongoing consultative relationship with the tribe. Such a
relationship could be jeopardized if, for example, an agency were to conclude consultation with a
decision to allow development that would destroy a tribal sacred place or damage a biological
community that tribal members use for traditional cultural practices. In such a situation, it could take
years or even generations to rebuild a consultative relationship.
B. Affirmative Obligation of Federal Agencies to Consult with Tribes
A number of federal statutes, if not the federal-tribal trust relationship itself, require agencies
to consult with tribes. Many of these statutes are summarized in Addendum A. Just what federal
agencies are required to do by law depends on the wording of the particular statutes and regulations
that apply to a given situation. Whatever the specific requirements, it must be stressed that federal
agencies have affirmative obligations to seek out tribes and provide meaningful opportunities for
consultation. This generallymeans much more than sending letters, notices, and copies of documents
to tribes and requesting comment. Rather, there must be outreach and concerted efforts to provide
for meaningful involvement in the decision-making processes.
C. Consultation in Addition to, Not Instead of, Public Participation
Consultation with tribal governments does not take the place of whatever requirements to
promote public participation may apply to a given proposed federal action. The citizens of Indian
country have the same kinds of rights to become involved in federal decision-making processes that
citizens elsewhere have. Both consultation and public participation need to be viewed as ongoing
obligations, which agencies should approach with creativity and cultural sensitivity. Although many
public involvement opportunities tend to exist for a set period of time, consultation with the tribal
government should continue on an ongoing basis.
D. The Goal of Consultation
The goal of any tribal consultation should be consensus, or in other words, full agreement
between all of the parties involved in the consultation. 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 goodfaith determined that further
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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.
E. Accountability
All federal agency employees responsible for implementing, administering or supervising any
aspect of tribal consultation must be held accountable for their responsibilities. One of the most
effective ways to provide for accountability is for each agency to implement procedures for appeals
to higher agency levels when it is believed that responsible agency personnel are not fulfilling their
responsibilities with regard to consultation. In addition, agency managers should impress upon their
staff the particular importance of consultation with tribes as compared to other gro ups or entities, and
require that each staff member be fully aware of their responsibilities with regard to tribal
consultation. Finally, agency managers themselves must remain open to rec onsidering staff decisions
related to tribal consultation in order to assure that the agency has fully complied with its
responsibilities.
F. Accommodating Tribal Rights and Federal Environmental Law (An Example)
On June 4, 1997, Interior Secretary Bruce Babbitt and Commerce Secretary William Daley
signed a joint secretarial order that provides guidance to agencies on how to baknce the interests of
Indian tribes withrequirements of the Endangered Species Act.37 The order is an example of a federal
policy that goes beyond simply including tribes in a consultative process in which tribal interests are
considered. Rather, the order requires that tribal rights be prioritized in endangered species decisions.
The order requires an equitable distribution of the burdens of protecting endangered species and
directs agencies to "re cognize that Indiantribes are appropriate governmental entities to managetheir
lands and tribal trust resources." (Principle 3B).38
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CHAPTER 3: METHODS FOR EFFECTIVE CONSULTATION
This Chapter seeks to provide answers to the following questions: What does the tribe want
to happen in consultation? When does a tribe feel like it was adequately consulted? This Chapter
presents the views of the Indigenous Peoples Subcommittee on the guiding principles and critical
elements for effective consultation with tribes. The mechanics and logistics of consultation can vary
depending on a variety of factors, and some agencies have engaged in negotiations with tribes, often
on a regional basis, to establish written protocols or agreements on how they will conduct
consultation. In addition, some federal agencies have issued their own internal guidance documents
on consultation with tribes, some of which are listed in Addendum.
A. Guiding Principles
These guiding principles, which also are outlined in Addendum C, are designed to facilitate
effective consultation and collaboration with tribes. While government contractors are encouraged
to_use these principles, federal agency officials ultimately are responsible for ensuring proper
consultation with tribes. In applying these principles agency personnel must keep in mind the great
diversity among tribes, and therefore be prepared to adapt these principles to any consultation or,
with the consent ofthe tribe, develop additional principles. Government contractors should also use
these principles, but agency officials shouldbe aware that they are ultimately responsible for ensuring
that proper consultation with tribes is carried out. Accordingly, federal agencies should follow these
principles in developing and executing contracts.
1. Know the tribes. In order for any effective consultation to take place, it is
imperative that all federal agencies know of all of the tribes and tribal organizations, and the
knowledgeable individual tribal members, within their jurisdiction. This includes not onlytribes with
jurisdiction over tribal land, but also those tribes, which claim a historical, cultural, religious,
customary, cultural or aboriginal relationship with land within the agency's jurisdiction. Federal
agency staff and managers should make every effort to identify all tribes and tribal organizations
within their jurisdiction at the earliest possible time, and preferably before any consultation is
commenced. Agencies also should identify tribes that may attach religious and cultural importance
to historic places that may be affected by agency actions. In doing so, the agency should not rely on
reservation boundary maps or census records, since these may not accurately reflect all tribes that
have interests in a particular area
2. Build on-going consultative relationships with tribes. Consultation on
specific proposed actions, policies, programs or other activities will be more constructive if conducted
within the framework of an ongoing government-to-government relationship. In addition, since
consultation puts demands on tribes as well as on agencies, the existence of on-going relationships
will help tribes and agencies decide how to best allocate their resources among specific matters on
which consultation may be appropriate.
3. Institutionalize consultation and collaboration procedures. Agencies should
work closely with tribes to develop formal consultation policies . Agency policy and procedures on
consultation and collaboration with tribes should be published and made avaikble to tribal
governments and the affected public. However, specific arrangements with a particular tribe might
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be recorded in a memorandum of agreement or similar document which, although a public document,
need not be widely distributed.
4. Contact tribes as early as practicable and allow sufficient time for the
consultation process. This is necessary not only to allow a tribe to formulate and to express its
views, but also for the agency to consider thoroughly the tribal views expressed before decision-
making. In determining what is sufficient time for the tribal consultation process, agencies should not
be driven by their own agendas or by their perceptions of the political climate. Rather, agency
officials and staff should bear in mind the trust responsibility to each tribe and should try to schedule
their consultation efforts so that the tribe will have meaningful opportunities to participate and will
not be unduly burdened. If a tribe does not respond to an initial request to engage in consultation,
the agency should not assume that the tribe has no interest in the matter. In such a case, the agency
should pursue additional efforts to initiate tribal consultation. Based on the overall history of federal
dealings with tribes, agencies should be cognizant that some tribal governments may well enter
consultations questioning whether their participation will be meaningful.
5. Establish training programs for all staffon consultation with tribes. Staff
training should explain the agency's policies and procedures as well as concepts such as the trust
responsibility, government-to-government relationship, and tribal sovereignty. Agencies should
provide frequent training on an ongoing basis with quality controls to ensure that the training is
consistent with agency policy and procedures.
6. Maintain honesty and integrity in their consultation processes. This
includes being candid and open with all available information that may help a tribe make an informed
decision or take a po sition. It also means that tribal cone erns are acknowledged and will be recorded
for future reference. Respond in a timely manner to the tribal concerns prior to making decisions to
demonstrate that the tribal input was meaningfully considered, and not disregarded.
7. View tribal consultation as an integral and essential element of the
government-to-government relationship with tribal governments, and not simply as a
procedural requirement. Agencies should view consultation as a non-adversarial opportunity to
develop consensus solutions in partnership with tribal governments.
B. Critical Elements
1. Preparation for consultation
a. Be aware that tribes are culturally and administratively different
from each other. Each tribal government is a unique and separate sovereign, with varying degrees
of governmental infrastructure and financialand humanres ource s. Ac cordingly, to the great est ext ent
possible, staff should be knowledgeable as to the governmental infrastructure and resources of each
tribe. Although at times, tribes unite to express concerns over impacts to tribal sovereignty,
jurisdiction, etc., their perspectives, positions, attitudes, and concerns can vary significantly.
b. Allow ample time for the tribe to receive, process, and respond to
requests for consultation. The amount of time required for effective consultation will vary according
to the particular tribe and in light o f the complexity o f the specific matter. Time frames for each step
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in the consultation process could be specified in written agreements between a tribe and the agency.
c. Understand that some kinds of information are sensitive, especially
information regarding traditional religious practices. Tribes may be reluctant to divulge certain
information unless confidentiality canbe assured. Insome instances, tribal customary kw or religious
rules regarding confidentiality are simply non-negotiable. Tribes also may re quire that anagencyhold
confidential proprietary information regarding their natural resources and economic development.
The agency, however, must be careful not to overstate its ability to limit public access to sensitive
information in light of the statutory requirements of the Freedom of Information Act.39
d. Steps of Consultation. It is beyond the scope of the Guide to pro vide
a comprehensive and detailed step by step guide to consultation, particularly since the mechanics of
consultation may vary from tribe to tribe. Nonetheless, participants in consultation should be aware
that there are various federal publications whichcan provide more detailed guidance on consultation.
Some of these publications are set forth in Addendum B. Additionally, refer to Addendum C for a
list of some of the mechanics of consultation.
2. Participants in consultation and collaboration
a. Tribal Contacts. Each tribe has the right to determine who will
represent it in the consultation process. A tribe may have enacted legislation that identifies the
specific tribal officials assigned the responsibilities for serving as the contact persons for certainkinds
of consultation. Such responsibilities also may be assigned in tribal council resolutions. If a tribe has
formally designated such contacts, agencies should work directly with them. If such persons have
not been appointed, agencies should generally begin by contacting the chief executive officer of the
tribe. If an agency enters into an agreement with a tribe to establish an on-going consultative
relationship, the agreement should specify the tribal and agency persons who will serve as contacts.
b. Federal Government Interagency Working Groups. All tribal
communities have dealings with several federal agencies, in a variety of contexts. These may include
federal actions withinreservationboundaries, federal actions outside reservation boundaries that have
on-reservation effects, and actions that affect off-reservation places in which tribes havetreatyrights
or religious and cultural interests. Some tribes may prefer having federal agencies coordinate their
consultation efforts to reduce the burden on tribal staff and other resources. Federal agencies with
established contacts with a tribe maybe helpful to other agencies that lack such contacts. Examples
are:
- Five agency (EPA, BIA, IMS, USFS, HUD) MOU workgroup (EPA Region 5)
- BIA Area offices meeting with EPA Regional Administrators (EPA Region 6)
- EPA Tribal Operations Committee (TOC)
- EPA Regional Tribal Operations Committees (RTOC)
c. Inter-Tribal Organizations. For po licy development affecting many
tribes, consult and engage national tribal organizations such as the National Congress of American
Indians (NCAI), National Tribal Environmental Council (NTEC), and Native American Fish and
Wildlife Society (NAFWS). For issues of regional scope, consultation with regional inter-tribal
organizations may be approp riate. In light of the fac t that each tribe has a go vernment-to- government
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relationship with the United States, use of inter-tribal organizations generally should emphasize
facilitating communication between agencies and the tribes that comprise the organization. Under
no circumstance should an agency treat consultation with inter-tribal organizations as a substitute for
consultation with each tribe, unless the tribes comprising such an organization agree that consultation
should proceed through an inter-tribal organization. However, some tribes may direct that all
consultation begin with inter-tribal organizations. Regional offices of the agencies usually know and
can identify these relationships.
d. Traditional Religious Leaders and Cultural Authorities. In some
instances, it maybe advisable for agencies to seek information from tribal members in addition to
persons who have been formally designated by tribal governments as contacts for consultation. For
example, in the context of the Native American Graves Protection and Repatriation Act (NAGPRA),40
federal agencies have an obligation to seek to identify traditional religious leaders who should be
consulted (although the NAGPRA regulations recognize that input from religious leaders may be
provided through tribal governmental officials). In the context of the National Historic Preservation
Act (NHPA),41 federal agencies should seek information on traditional culturalplaces from elders and
other persons who have knowledge of such places. Agencies should not be surprised to learn that
the interests of traditional leaders and cultural authorities do not always coincide with those of the
tribal government.
3. Logistics and Mechanics
a. Protocol. In recognition of the government-to-government
relationship, agencies should, unless otherwise directed by the tribe, ensure interaction through
officials of comparable governmental stature and authority. It is important to know that triballeaders
are of the highest levels of tribal government stature and should be treated in like manner. Federal
agencies should strive to consult with tribal Chief Executive Officers through the agencies' regional
directors or officials of similar stature.
b. Staff contacts. Agencies should strive to establish staff level relations
to complement contacts by governmental officials. Use phone calls, meetings, e-mail, and other
means of communication to maintain such relations, which can be more beneficial to tribes than
manuals or formal policies. Do not expect tribal staff to make policy decisions, however, or to take
tribal positions without authorization from their tribal governments.
c. Two-way communication. The goal of consultation, both that at the
level of governmental officials and at the staff level, should be direct, two -way dialogue. Seek face-
to-face meetings at tribal offices. These meetings will develop rapport and increase understanding
of the proposed action as well as outline the agency's perceived constraints (on the decision under
consideration and on the resources it can devote to consultation). Where the focus of the
consultation is a specific site or location, agency personnel should arrange to visit the site or location
with tribal representatives so as to achieve the best possible understanding of the tribe's concerns.
In addition to face-to-face meetings, agencies should maintain an on-going dialogue through
telephone calls, written correspondence, and other methods of communication
d. Clear description of the proposed action or policy. Document sand
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statements should clearly describe the proposed action or policy to tribal representatives and
community members. Explain in plain and simple terms what the agency wants to accomplish, where
the agency is in its decision making, and the nature of the decision to be made. Limit the use of
confusing acronyms when consulting with tribal government officials, but if they must be used,
include a clear definition of their meanings.
e. Informational meetings for larger audiences. Invite tribal contacts
to attend or co-sponsor public meetings regarding proposed actions. "Piggy-back" informational
meetings with scheduled tribal public functions to reach larger audiences. Allow plenty of time for
discussion and explanation of technical details, and give the affected community the opportunity to
provide the agency with well-informed input. Informational meetings should not be used to replace
separate agency meetings with tribal leadership, which is an essential element of consultation.
/ Public involvement. For proposed actions and policies in which it is
appropriate to seek involvement frommembers ofthe affectedpublic, consult with tribes about how
to do so effectively. Agencies may be able to use a tribal newspaper, radio station, or tribal
information network to publicize outreach activities.
g. Outcomes of consultation. The outcome of consultation is different
than the goal for consultation. Whereas the goal of consultation pertains to the scope of agreement,
the outcome of consultation addresses what is to be agreed upon. In this regard it is important for
the federal agency to share with tribes arange of consultation outcomes not only from the agency's
perspective, but also the tribal perspective. Agencies should ask tribalrepresentativesto identify the
ultimate goals ofthe consultation and be open to those suggestions.
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CHAPTER FOUR: PUBLIC PARTICIPATION IN INDIAN COUNTRY
A. Why Public Participation is Important for all Governments
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.
Meaningfulpublic participation is afundamental principle of environmental justice. The EPA
Office of Environmental Justice defines Environmental Justice as:
The fair treatment and meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies. Fair treatment means
that no group ofpeople, including racial, ethnic, or socioeconomic group should bear
a disproportionate share of the negative environmental consequences resulting from
industrial, municipal, and commercial operations or the execution of federal, state,
local, and tribal programs and policies.42
B. Public Participation in EPA's Programs
As noted in earlier chapters, the federal government has a particular set ofresponsibilities to
federally recognized tribal governments. These responsibilities extend well beyond the callfor federal
agencies to provide opportunities for tribalgovernmentsto participate in decision-making processes
as part of the affected public. Rather, the working relationships that need to exist between the federal
and tribal governments should be consultative and collaborative. These responsibilities to consult
with tribes, however, are separate from federal agency responsibilities to provide opportunities for
individual members of the public and non-governmental organizations to have input into agency
decisions that affect them. Thus, while agencies such as EPA are required to work with tribes on a
government-to-government basis, this does not diminish an agency's obligation to be responsive to
individual citizens.
As a federal agency, the EPA is subject to federal laws intendedto make agencies accountable
to the public, such as the Administrative Procedure Act (APA).43 The APA establishes the basic
requirements for two kinds of activities that governmental agencies carry out: (1) rule-making,
through which agencies implement legisktion; and (2) administrative adjudication, through which
agencies make decisions that affect particular individuals. Rule-making is one of the basic ways
through which agencies seek public input into the development of policies. Rule-making, as carried
out by federal agencies, typically involvespublicationofrulesinpr op osed form for public review and
comment. Rule-making may also include legislative-style hearings in which members of the public
are invited to express their view. Administrative adjudication includes the issuance of permits and
licenses, and appeals regarding such decisions. For adjudication, the APA sets out the standards to
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ensure that the government agency provides due process to all persons who are subject to its
decisions. The APA also sets out the standards for federal courts to use when agency actions are
challenged.
When EPA engages in rule-making or adjudication, it must comply with the requirements of
the APA, as well as any additional requirements that are included in the statutes that EPA is charged
with carrying out. In accordance with these laws, EPA has issued several sets of reguktions that
govern public involvement in EPA programs.44 As a general rule, the requirements of such
regulations apply to EPA when the Agency administers environmental regulatory programs within
Indian reservations or in Alaska Native villages, separately and in addition to the duties of EPA to
consult with tribal governments. In general, federal agencies are required to treat the concerns of a
tribal member in the same manner as any citizen of the United States.
EPA must make reasonable efforts to inform and seek participation from tribal members,
organizations, and communities about the Agency's actions and programs in a manner similar to the
way the Agency works with other citizens, non-governmental organizations, and communities.
Specifically, interested tribal members, tribal community groups, and tribal non-governmental
organizations need to be invited to attend public meetings on proposed actions or policies that may
affect their communities. Providing opportunities for public participation helps to build a record for
an informed decision. These individuals, groups, and organizations need to also be provided with
information about EPA's newsletters, financial assistance programs, and employment opportunities.
In addition, it may be appropriate for such individuals to be appointed to serve on federal advisory
committees (as representatives of non-governmental organizations) or for such organizations to
participate in identifying supplemental environmental projects (which arise from litigation concerning
their communities).
When environmental and public health concerns arise within or near Indian country and
Alaska Native villages, concerned citizens and groups - whether Indian or non-Indian - may contact
EPA or another federal agency for information and help. When such situations arise, federal agencies
must respondto the concerns ofindividuals or groups in ways that are respectful of tribal sovereignty,
the government-to-government relationship, and the federal trust responsibility. Consultation with
the tribal government can, and generally should, be carried out before, during and after federal efforts
are made to address these concerns. This appears to be consistent with one of the key principles of
the EPA 1984 Indian Policy, which states that EPA "will recognize tribal governments as the primary
parties for ... making environmental policy decisions ... for reservations, consistent with agency
standards and reguktions."
The EPA 1984 Indian Policy specifically addresses the situation in which a regulated facility
on a reservation that is not owned or operated by the tribal government is out of complknce with
federal environmental law, and the tribal government has not taken over primary enforcement
authority. In such cases, EPA will seek to act in cooperation with the affected tribal government but
will generally respond to noncompliance by private parties "as the Agency would respond to
noncomplknce elsewhere in the country."45 The involvement of concerned citizens can be useful in
bringing such cases to the attention of EPA. As it works to bring the facility into compliance, the
Agency should generally seek to address all concerns about human health and the environment,
regardless of who initially raises such concerns. If such enforcement efforts lead to settlement
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agreementsthat include anysupplementalenvironmentalprojects(SEPs), input andsupport from the
tribal government and the community(ies) affected by the non-compliance should be sought in the
design of the SEPs.
The EPA 1984 Indian Policy also addresses the situation in which tribally owned or managed
facility is out of compliance with federal environmental law. As withprivately owned facilities, the
involvement of concerned citizens canbe useful inbringing such cases to the attention of EPA. The
EPA 1984 Indian Policy favors cooperation with the tribal government, with technical assistance and
consultation, to bring such a facility into compliance. Administrative and judicial enforcement
processes will generally not be used unless there is a significant threat to human health or the
environment and enforcement is the only way to correct the problem in a timely fashion.
C. Public Participation in Tribal Environmental Programs
Increasingly, tribal governments are called upon to address important social, cultural,
religious/spiritual, economic, public health, and environmental issues affecting their lands and the
people (both tribal members and non-members) residing on or near reservations. Tribal leaders may
be driven to act by their own awareness of these issues. They may also act in response to concerns
voiced by tribal members, non-member Indians, non-Indians, businesses, and community
organizations. The need for governmental action may be brought to the attention oftriballeaders by
officials of other tribes or federal, state, or local governments. For these and other reasons, tribal
leaders are increasingly recognizing that sovereignty includes responsibility for environmental
protection
As the number of tribes assuming responsibility for environmental protection grows, tribal
governments are being asked to provide greater access to their decision-making processes. Tribes
that assume regulatory roles under federal statutes also become subject to certain pub lie participation
requirements imposed by federal laws and regulations. EPA reguktions impose a range of
requirements for public participation and due process on state regulatory programs opera ted within
the framework offederal kw, and many of these requirements apply to tribes that become authorized
for treatment in the same manner as states.46
Providing for public participation in the tribalgovernment context, however, presents unusual
considerations. In the first place, tribes have the right of self-government as an integral aspect of
tribal sovereignty, and this includes the right to determine the structure, nature, and functions of that
government. As a result, each tribal government is unique, and the processes by which tribal
members participate vary from tribe to tribe. For example, in some tribes, a general council consisting
of every tribal member entitled to vote comprises the tribal governing body. In such cases, much
discussion and broad participation typically occurs during tribal decision making. Other tribes have
established a smaller governing body, such as an elected or appointed tribal council and/or executive
committee, which may exercise a broad range of authorities on behalf of the tribe. Some tribes have
governing bodies that carry on ancient tribal traditions. Many tribal governments reflect a mix of
tribal traditions and American democratic government.
The extent to which the institutions of tribal government provide for involvement of tribal
members, whether through formal processes or customary practices, is largely a matter for the people
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of each tribe to decide for themselves. On many reservations, however, there are many people living
and doing business who are not tribal members. Such demographic factors may raise special public
participation challenges concerning the extent and process by which non-Indian and non-member
Indian reservation residents may have a say in tribal decisions affecting the environment and public
health, whether or not such persons share in the tribe's value system. The presence of substantial
numbers of non-Indians within reservations, many of whom are landowners, is part ofthe legacy of
the "allotment" era of federal Indian policy, which the federal government repudiated in 1934.
Between 1887, when the General Allotment Act was passed, and 1934, when it was ended by the
Indian Reorganization Act, the allotment policy resulted in about two-thirds of Indian land passing
out of Indian possession.47 Because a checkerboard system of regulating environmental quality is
unworkable, many tribes have sought to exercise regulatory authority over their entire reservations,
including non-Indian lands and activities, and EPA has generally supported such efforts. In some
cases, EPA's support for tribal authority over non-Indians has been challenged in court.48
In light of such factors, mechanisms to enhance public participation in tribal government
decision-making may be helpful, if not essential, for tribal environmental programs to gain acceptance.
Moreover, unless tribes provide for meaningful public involvement, it is quite likely tribes will face
continuous challenges to their governmental authority in the federal courts and state and federal
political arenas. It is therefore essential that EPA and other federal agencies work with tribes, in a
gover nment-t o-go vernment way, to help them develop appropriate public participation processes that
not only comply with any applicable federal requirements, but also will complement existing tribal
structure, laws, and practices.
Federal agency efforts to help tribes develop public participation processes may be pursued
in a proactive way, or such efforts may be initiated in response to concerns raised by individuals or
groups in particular matters. Where a tribe is asserting regulatory authority over its entire
reservation, it is likely that some individuals or community-based organizations may disagree or
complain about tribal actions. Federal agencies should recognize that, as is the case throughout
society, not all people agree with government decisions, whether those decisions are made by federal,
tribal, state, or local governments.
One promising approach to addressing this problem is for tribal governments to enact and
enforce administrative procedure acts (APAs). As discussed earlier in this Chapter, the federal APA,
sets the standards for two kinds of activities that governmental agencies carry out: (1) rule-making,
through which agencies implement legislation and may seek input from all sectors ofthe affected
public; and (2) administrative adjudication, through which agencies make decisions that affect
particular individuals. About two-thirds of the states have enacted such legislation. Although a
number of tribes have enacted such laws, most tribes have not.
In setting out the standards for administrative adjudication, a tribal APA can ensure that tribal
agencies afford due process to permit applicants and other persons affected by permit decisions and
administrative enforcement actions. The Indian Civil Rights Act (ICRA)49 provides, in part, that no
tribal government shall deny any person within its jurisdiction the equal protection of its kws or
deprive any person of liberty or property without due process of law. The ICRA, however, does not
provide a right of action in federal court unless a person is being held in custody,50 a situation that
generally does not apply to administrative agencies. (Many tribal courts have ruled that ICRA does
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create a right ofaction in tribal court.51) A tribalAPA can provide specificity for the concept of due
process as applied by tribal agencies. By doing so, a tribal APA can give members of the public the
sense that they are being treated with fundamental fairness, which is a basic value in American
democracy. In addition, an APA can expressly provide for jurisdiction in tribal courts to resolve
claims by individuals that tribal agencies have not treated them with due process or have otherwise
not complied with the kw.
D. How to Provide for Effective Public Participation
The National Environmental Justice Advisory Council (NEJAC) has recognized the crucial
need for public participation particularly in the area of environmental justice. A guidance pkn for
public participation was created bythe NEJAC, The Model Plan for Public Participation, and includes
guiding principles, critical elements, and core values. This plan has been redrafted for the purposes
of making it more applicable to Indian country. The title of this redraft is, "Public Participation
Guiding Principles and Critical Elements," and can be found at the end of this document as
Addendum D.
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CONCLUSION
An intent of Indigenous Peoples Subcommittee in writing this Guide has been to familiarize
readers with the concepts of American Indian and Akska Native tribal sovereignty, and the resulting
government-to-government relationship with the federal government. The Guide has provided,
information on the legal requirements for such a relationship, and has offered guidelines on how to
achieve such a relationship. The Guide has provided not only the legal requirements for such a
relationship, but also guidelines on how to achieve such a relationship. Additionally, the Guide has
defined the differences between public participation and consultation and collaboration, and when
each communication technique is appropriate to use.
The Indigenous Peoples Subcommittee recognizes the strides that EPA has made in
addressing environmental justice for American Indians and Akska Natives. Through this document,
NEJAC urges EPA to enhance its effortsto promote equity in environmental protection withinlndian
country and Alaska Native villages. Specifically, the Subcommittee calls on EPA to consult with
tribal government s on a go vernment -to- government basis, co nsist ent with and in recognition of tribal
sovereignty, tribal rights, and the federal trust responsibility. Additionally, it is imperative that EPA
and other federal agencies afford federally recognized tribal governments with equitable levels of
financial and technical assistance to ensure that public health, the environment and tribal cultural,
spiritual, natural and economic resources are indeed protected from environmental degradation and
harm.
Finally, the Indigenous Peoples Subcommittee requests that EPA encourage and assist tribal
governments in establishing their environmental programs in an effective and open manner and
administering their environmental laws and policies fairly and efficiently. Again, equitable levels of
federal financial and technical assistance will be essential to strengthening and maintaining the overall
integrity of tribal environmental programs. In the Subcommittee's view, strong, fair and successful
tribal environmental programs not only will benefit tribal communities and their neighbors, but also
will strengthen tribal sovereignty and self-governance and promote the acceptance of these bedrock
principles throughout the larger American society.
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ENDNOTES
1 See Dept of the Interior, Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities and the Endangered Species Act, June 5, 1997, available at
http ://endangered. fws. gov/esatribe.html.
2 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
3 See United States v. Wheeler, 435 U.S. 313 (1978), citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978), the first case in which the Court used the implicit divestiture theory to reach it holding.
4 See N. Bruce Duthu, Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian
Country, 19 AM. INDIAN L. REV. 353 (1994) (analyzing the use ofthe implicit divestiture bythe Supreme Court to
create a new theory of "judicial plenary power"); Frank Pommersheim, Coyote Paradox: Some Indian Law
Reflections from the Edge ofthe Prairie, 31 ARIZ. ST. L. J. 439 (1999) (discussing the use ofthe new judicial
plenary power doctrine in divesting tribes of sovereign powers); David FL Getches, Conquering the Cultural
Frontier: The New Subjectivism ofthe Supreme Court in Indian Law, 84 CAL. L. REV. 1573 (1996) (explaining
how the Supreme Court has used the implicit divestiture doctrine to reach results that reflect the Court's views of
what the law ought to be).
5 See Executive Memorandum on Government-to-Government Relations with Native American Tribal
Governments (April 29, 1994).
6 Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
7 Nance v. Environmental Protection Agency, 645 F.2d 701, 710 (9th Cir. 1981).
8 United States v. Payne, 264 U.S. 446, 448 (1924).
9 See United States v. Mitchell, 463 U.S. 206 (1983). In Mitchell, die Court found thatthe Department ofthe
Interior was liable for monetary damages for mismanaging timber resources ofthe Quinault tribe in violation ofthe
agency's fiduciary duty.
1025U.S.C. § 3601.
11 See Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998)
(recognizing the distinction between general and specific trust responsibilities).
12 See Mary Christina Wood Protecting the Attributes of Native Sovereignty: A New Paradigm for Federal
Actions Affecting Tribal Lands and Resources, 1995UtahL Rev. 109, 117-21 (1995) (collecting cases and
arguing that "[interpreting governmental fiduciary standards as coextensive with express statutory obligations in
general laws is inappropriate"). See also Mary Christina Wood Indian Land and the Promise of Native
Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1513-1522 (1994) (discussing the U.S.
Supreme Court's decisions in Mitchell v. United States, 445 U.S. 535 (1980) and Mitchell v. United States, 463
U.S. 206 (1983); noting that the reason the Court insisted on a specific basis in the "Constitution, statutes, iederal
regulations, executive orders, or treaties" as a requirement for finding the federal government liable for breach of
trust is that these cases involved claims for damages under the Tucker Act, 28 U.S.C. § 1491, and the Indian
Claims Commission Act, 28 U. S.C. § 1505; and arguing that this rationale should not be extended to claims for
declaratory and/or injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 702).
13 See Morton v. Mancari, 417 U.S. 535 (1974).
14 See McClanahan v. Arizona State Tax Comm., 411 U.S. 164 (1973) ("The policy of leaving Indians free from
state jurisdiction is deeply rooted in the Nation's history.").
15 See Mancari, 417 U.S. at 555.
16 See Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 675 (1979).
17 See United States v. Winans, 198 U.S. 371 (1905) ("In other words, the treatywasnot a grant ofrightsto the
Indians, but a grant of rights from them—a reservation of those not granted.")
18 See Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968).
19 See United States v. Dion, 476 U.S. 734 (1986).
20 See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-70 (1974).
21 Cherokee Nation v. Georgia, 30 U.S. (6 pet.) 1 (1831).
22 5 U.S.C. App. 2 (1994).
23 2 U.S.C. § 1534.
24 In order to improve communication and build stronger partnerships with the Tribes, the U.S. Environmental
Protection Agency (EPA) established a Tribal Operations Committee in February 1994. The Tribal Operations
Committee (TOC) is comprised of 19 Tribal leaders or their Environmental Program Managers (referred to as the
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"Tribal Caucus") and EPA's Senior Leadership Team, including the Administrator, the Deputy Administrator and
the Agency's Assistant Administrators and Regional Administrators. The Tribal Caucus (TQ meets on a regular
basis to discuss implementation of the environmental protection programs for which EPA and the Tribes share
responsibility as co-regulators. All Tribes are encouraged to communicate with the members of the TC.
25 Exec. Order No. 13084, 63 Fed. Reg. 27,655 (May 14, 1998), reprinted in 25 U.S.C.A. § 450 note.
26 Presidential Memorandum on Government-to Government Relationships, 59 Fed. Reg. 22,951 (April 29, 1998),
reprinted in 25 U.S .C.A. § 450 note.
27 Exec. Order No. 12875, 58 Fed. Reg. 58, 093 (Oct. 26, 1993).
28 Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993).
29 Exec. Order No. 13007, 61 Fed. Reg. 26771 (May 29, 1996), reprinted in 42 U.S.C. § 1996 note.
30 Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
31 Environmental Protection Agency, EPA Policy for the Administration of Environmental Programs on Indian
Reservations (Nov. 8, 1984), posted at (visited October 8, 2000).
32 See 5 U.S.C. §552(1994).
33 42 U.S.C. §§ 4321-4370d.
34 63 Fed. Reg. 20,504 (April 24, 1998).
35 See 36 C.F.R. § 800.15(f).
36 See, e.g., Hoopa Valley Tribe v. Christie, 812F.2d 1097(9th Cir. 1986). "Consultation is not the same as
obeying those who are consulted. The Flupas were heard, even though their advice was not accepted." Id. at 1103.
But see Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979) (failure of agency to follow
consultation guidelines violates trust obligation to tribe).
37 Department of the Interior, supra note 1.
Specifically, the order requires that agencies:
. . . shall give deference to tribal conservation and management plans for tribal trust resources that: (a)
govern activities on Indian lands, including . . . tribally-owned fee lands, and (b) address the conservation
needs of listed species. The Departments shall conduct government-to-government consultations to
discuss the extent to which tribal resource management plans for tribal trust resources outside Indian
lands can be incorporated into actions to address the conservation needs of listed species. (Principle 3B).
When the Fish and Wildlife Service or the National Marine Fisheries Service determines that
conservation restrictions are necessary to protect a species, the agencymust again show that it is equitably
distributing the burden of protecting a species. To meet this burden, an agency must notify a tribe of the restriction
and show that the following conservation standards have been met:
(i) the restriction is reasonable and necessary for conservation of the species at issue; (ii) the conservation
purpose of the restriction cannot be achieved by reasonable reguktion of non-Indian activities; (iii) the
measure is the least restrictive alternative available to achieve the required conservation purpose; (iv) the
restriction does not discriminate against Indian activities, either as stated or applied; and (v) voluntary
tribal measures are not adequate to achieve the necessary conservation purpose. (Principle C3).
This Order provides important guidance to agencies on policies implementing the Endangered Species
Act. It prioritizes the interests of Indian tribes in conserving species and in planning for economic development of
Indian lands.
39 5 U.S.C. § 552(b). The Ninth Circuit has held that thetrust doctrine does not necessarily shield agencies from
FOIA requests for documents given to the agency by a tribe. See Klamath Water Users Assoc. v. United States
Dept. of the Interior, 189 F.3d 1034, 1038-39 (9th Cir. 1999).
40 See 25 U.S.C. §§ 3001-3013 (1994).
41 See 16 U.S.C. §§ 470-470x-6.
42 U.S. EPA, INTERIM FINAL GUIDANCE FOR INCORPORATING ENVIRONMENTAL JUSTICE CONCERNS IN EPA's
NEPA COMPLIANCE ANALYSIS 2 (Sept. 1997).
43 5 U.S.C. §§ 551-559, 701-706.
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44 See, e.g., 40 C.F.R Part 25, Public Participation in Programs under the Resource Conservation and Recovery
Act, the Safe Drinking Water Act, and the Clean Water Act. See also 40 C.F. R Part 124, Procedures for
Decisionmaking (including numerous provisions relating to public notice, public comments, and hearings).
45 Id., Principle 8.
46 See, e.g., 40 C.F.R Part 25, Public Participation in Programs under the Resource Conservation and Recovery
Act, the Safe Drinking Water Act, and the Clean Water Act. The regulations in Part 25 apply to EPA programs,
and some of these regulations apply to state programs under these three statutes. Although Part 25 does not
mention tribes, some of the regulations in this Part do apply to tribes. For example, tribes that have been
authorized for treatment in the same manner as a state for the purpose of setting water quality standards (WQSs)
are subject to the requirement to hold a public hearing in accordance with Part 25 before adopting or revising their
WQSs. 40 C.F.R. §§ 131.30"), 131.20(b). See generally Dean B. Suagee and John P. Lowndes, Due Process and
Public Participation in Tribal Environmental Programs, 13 TULANEENVTL. L. J. 1, 25-41 (1999). Not all
requirements imposed on states apply to tribes. For example, although tribes that apply for eligibility for the
section 402 permit program under the Clean Water Act (also known as the National Pollutant Discharge
Elimination System, or NPDES, permit program) are generally subject to the requirements for state programs, 40
C.F.R. § 123.31(b), the requir ement to provide judicial review of the approval or denial of a NPDES permit does
not apply to tribes. 40 C.F.R. § 123.30.
47 See generally FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW (1982, Rennard Strickland, ed.); see also
Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L. J. 1 (1995).
48 E.g., Montana v. U.S. Environmental Protection Agency, 941 F. Supp. 945 (D. Mont. 1996), affd. 137 F.3d
1135 (9th Cir. 1998), cert, denied, 119 S.Ct. 275 (1998) (upholding EPA approval of tribal water quality standards
for all surface waters within tribe's reservation); Arizona Public Service Company v. Environmental Protection
Agency, 211 F.3d 1280, No. 98-1196, 2000 WL493047 (D.C. Cir. 2000) (upholding EPA's determination that, in
the 1990 Clean Air Act Amendments, Congress had delegated to tribes the authority to regulate all sources of air
pollution within the boundaries of their reservations, including lands owned in fee by non-Indians).
49 25U.S.C. §§ 1301-1303.
50 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 66-67 (1978).
51 See Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 IDAHO L.
REV. 465 (1998) (discussing tribal court case law construing the meaning of due process under ICRA).
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ADDENDUM A
STATUTES AND REGULATIONS
National Environmental Policy Act
42U.S.C. §§4321-4370d
The National Environmental Policy Act (NEPA) requires the preparation of an environmental
impact statement (EIS) for any proposedmajor federal action thatmay significantly affect the quality
of the human environment. Under regulations issued by the Council of Environmental Quality
(CEQ), 40 C.F.R. pts. 1500-1508, a federal agency may prepare a less-detailed document known as
an environmental assessment (EA) for use in determining whether a proposed action may result in
significant impacts on the environment. If the responsible agency official determines that the
proposed action will not have significant impacts, a finding of no significant impact (FONSI)
completes the NEPA process. If the EA does not support a FONSI, then an EIS must be prepared,
unless new alternatives and/or mitigation measures are fashioned that will avoid significant impacts.
In practice, for the vast majority of federal actions, an EA and FONSI fulfills the agency's
responsibilities for NEPA compliance.
Although the statutory language of NEPA does not mention Indian tribes, the CEQ
regulations require agencies to contact Indian tribes and provide opportunities for tribes to be
become involved at several steps in the preparation of an EIS, including:
Cooperating agencies - When the effects of a proposed action may occur "on a reservation"
an Indian tribe, by agreement with the lead federal agency, may become a cooperating agency
and have a direct role in the preparation of the EIS. 40 C.F.R. §§ 1501.6, 1508.5.
Scoping - The lead agency must invite "any affected Indian tribe" to participate in the
scoping process for an EIS. Id. § 1501.7.
Commenting on an Ł75*- The lead agency must invite comments on a draft EIS from Indian
tribes "when the effects may be on a reservation." Id. § 1503.1(a)(2).
Environmental consequences - When an agency prepares an EIS for a proposed action, the
analysis of environmental consequences in the EIS must include discussions of possible
conflicts between the proposed action and the obj ectives of Federal, regional, State, and local
(and in the case of a reservation, Indian tribe) land use plans, policies and controls for the
area concerned. Id. § 1502.16(c).
Public involvement - Whenever an agency provides public notice of a NEPA-related
hearing, public meeting, or the availability of environmental documents, the notice shall
include notice to Indian tribes "when effects may occur on reservations." Id. § 1506.6(b)(3).
In the event that an EA is prepared for a proposed federal action rather than an EIS, the CEQ
regulations provide guidance on how to prepare the EA, either in terms of procedure or content. An
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EA must include "brief discussions of the need forthe proposal, of alternatives as required by section
102(2)(E) [of NEPA], of the environmental impacts of the proposed action and alternatives, and a
listing of agencies and persons consulted." Id. § 1508.9. The agency "shall involve environmental
agencies, applicants, and the public, to the extent practicable" in preparing EAs. Id. § 1501.4(b).
The agency needs to determine if the action under review may "significantly" impact the quality of
human health and the environment. Id. § 1508.27. If the agency issues a finding of no significant
impact (FONSI) for aproposed action (i.e., determines that an EK is not required), the agency must
make the FONSI available to the public. Id. §§ 1501.4(e)(l), 1506.6. Agencies generally have broad
discretion to do more than just what is needed to comply with these minimal requirements.
In addition, if the proposed federal agency action is in response to an action planned by a
private or other non-federal entity, and the federal agency knows that its involvement is reasonably
foreseeable, the CEQ regulations direct federal agencies to promptly consult with state and local
agencies and Indian tribes. Id. § 1501.2(d). This requirement applies whether NEPA compliance
involves an EIS or and E A and FONSI.
National Historic Preservation Act
16U.S.C. §§470-470x-6
Section 106 of the National Historic Preservation Act (NHPA) requires each federal agency
to take into account the effect of any proposed federal or federally assisted undertaking on places that
are listed on or eligible for listing on the National Register of Historic Places, and to give the
Advisory Council on Historic Preservation (ACHP) an opportunity to comment on any such
undertaking. This review requirement, which is known as the Section 106 consultation process, is
governed by regulations issued by the ACHP. 36 C.F.R. pt. 800. The ACHP regulations were
recently published as revised final rules. 64 Fed. Reg. 27044 (May 18, 1999). The revised final
rules implement amendments to the NHPA enacted in 1992. Under the ACHP regulations, the
federal agency typically carries out the section 106 process in consultation with the appropriate State
Historic Preservation Officer (SHPO), and the ACHP only becomes directly involved in unusual
cases.
Places that hold religious and cultural significance for Indian tribes, or for Native Hawaiian
organizations, may be eligible for the National Register. Such places may be eligible for the
National Register because of their ongoing importance in the cultural beliefs and practices of atribe
or Native Hawaiian community. Such places are often called "traditional cultural properties" or
"traditional cultural places" (TCPs). See generally NATIONAL PARK SERVICE, NATIONAL REGISTER
BULLETIN 38, GUIDELINES FOR EVALUATING AND DOCUMENTING TRADITIONAL CULTURAL
PROPERTIES (1990).
The 1992 NHPA Amendments enacted new statutory provisions relating to Indian tribes and
Native Hawaiian organizations:
Indian tribes can choose to take over the functions of the SHPO for "tribal lands," a term that
is defined in the NHPA to include all lands within the exterior boundaries of any Indian
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reservation and all dependent Indian communities. NHPA § 101(d)(2); 16 U.S.C. §
470a(d)(2).
If a proposed federal or federally assisted undertaking may affect a historic property that a
tribe or Native Hawaiian organization (NHO) regards as holding religious and cultural
significance, the federal agency has a statutory obligation to consult with the tribe or NHO
as part of the Section 106 process. NHPA § 101(d)(6); 16 U.S.C. § 470a(d)(6).
Under the revised regulations, the Section 106 process will usually consist of four steps. The
federal agency that is considering the proposed undertaking is responsible for taking each step, in
consultation with the appropriate state historic preservation officer (SHPO) or tribal historic
preservation officer (THPO) and other consulting parties.
Step 1 -Initiate the Section 106Process. The federal agency official determines whether
the proposed federal action is an "undertaking" and whether it has the potential to cause effects on
historic properties. If so, then the federal agency official determines the appropriate SHPO to be
involved in the consultation process. If the proposed undertaking would "occur on or affect historic
properties on any tribal lands," then the federal agency official must determine whether the tribe has
assumed the roles of the SHPO for tribal lands. If so, the THPO takes the place of the SHPO. This
principle is reflected throughout the revised regulations through the use of the term "SHPO/THPO"
rather than simply "SHPO." Even where a tribe has not assumed the role of the SHPO, this section
provides that the tribe has a right to participate in consultation "in addition to and on the same basis
as consultation with the SHPO." With respect to undertakings that affect historic properties not on
tribal lands, this section of the regulations provides that the federal agency official:
"[Sjhall make a reasonable and good faith effort to identify any Indian tribes or
Native Hawaiian organizations that might attach religious and cultural significance
to historic properties in the area of potential effects and invites them to be consulting
parties. Such Indian tribe or Native Hawaiian organization that requests in writing
to be a consulting party shall be one."
Step 2 -Identification of Historic Properties. This step consists of four parts: (a) determine
the scope of identification efforts; (b) identify historic properties; (c) evaluate historic significance;
and (d) document the results of identification and evaluation.
(a) Scope of Identification Effort. The federal agency begins this step by
consulting with the SHPO/THPO to determine the area of potential effects, review the existing
information about historic properties in the area, and seek information from consulting parties and
others. This section also includes amandate to gather information from any Indian tribe or Native
Hawaiian organization (NHO) regarding historic properties that may hold religious and cultural
significance for them, recognizing that the tribe or NHO may be reluctant to divulge specific
information.
(b) Identify Historic Properties. The federal agency does this in consultation
with the SHPO/THPO and with any tribe or NHO that might attach religious and cultural
significance to properties in the area of potential effects. The agency's mandate is to "take the steps
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necessary to identify historic properties," which may include "background research, oral history
interviews, sample filed investigation, and field survey." The agency official must make a
"reasonable and good faith effort." Identification of historic properties can require a substantial
commitment of resources, and the regulations allow this to be done in a phased process in certain
situations: where alternatives being considered include corridors and large land areas; where a
Memorandum of Agreement or Programmatic Agreement authorizes phased identification; and
where documents prepared for compliance with the National Environmental Policy Act (NEPA) so
provide.
(c) Evaluate Historic Significance. This means applying the National Register
Criteria, 36 C.F.R. pt. 63, and determining whether any of the properties in the area of potential
effects is eligible for the National Register. As with identification, the federal agency does this in
consultation with the SHPO/THPO and with any tribe or NHO that might attach religious and
cultural significance to properties in the area of potential effects. If the agency official and the
SHPO/THPO agree, either that a property is eligible or that it is not, that generally settles that issue.
If, however, the Advisory Council or the Secretary of the Interior (acting through NPS) requests a
formal determination of eligibility by NPS, then the agency official must request a formal
determination. A tribe or NHO that attaches religious and cultural significance to a historic property
located off tribal lands may ask the Council to request a formal determination.
(d) Results of Identification and Evaluation. If the agency official determines
that there are no historic properties, or that there are historic properties but they will not be affected,
the agency official provides documentation to the SHPO/THPO and notice to other consulting
parties. If the SHPO/THPO does not object within thirty days, and neither does the Council, the
federal agency official's section 106 responsibilities are fulfilled. If the agency official determines
that the undertaking will affect historic properties, or either the SHPO/THPO or Council objects to
a no effect finding, the consultation process moves on to the next step.
Step 3 -Assessment of Adverse Effects. This section sets out criteria for determining
whether effects on historic properties would be adverse, along with examples, and directs the federal
agency official to apply these criteria in consultation with the SHPO/THPO and any tribe or NHO
that attaches religious and cultural significance to identified historic properties. If the agency
official, in consultation with the SHPO/THPO, proposes a finding of no adverse effect, notice and
documentation must be provided to all the consulting parties. Ifwithin thirty days the SHPO/THPO
or any consulting party expresses disagreement with the finding, the agency official must either
consult with the party to resolve the disagreement or request the Advisory Council to review the
finding. The agency official is encouraged to seek concurrence in a no adverse effect finding from
any tribe or NHO that has let the agency official know that it attaches religious and cultural
significance to identified historic properties, whether or not such a tribe or NHO is a consulting
party. If such a tribe or NHO objects to the finding, it can request the Council to review the finding.
If the Council does review the finding and determines that the effect would be adverse, the agency
is bound by the Council's determination. If this step results in a finding of no adverse effect, that
concludes the Section 106 process. If this step results in an adverse effect finding, however, the
process moves to the next step.
Step 4 -Resolution of Adverse Effects. In this step, the federal agency official, in
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consultation with the SHPO/THPO and other consulting parties, including tribes and NHOs,
develops and evaluates alternative to avoid, minimize or mitigate adverse effects. The Advisory
Council does not normally participate in this step, but it may choose to participate on its own
initiative or at the request of the SHPO/THPO, a tribe or NHO, or another consulting party.
Appendix A to the revised regulations specifies the criteria the Council will use in deciding whether
to become involved in individual Section 106 cases. Criterion (4)provides that the Council is likely
to enter the process when an undertaking presents issues of concern to Indian tribes or NHOs.
The objective of this step is to reach agreement on acceptable ways to avoid, minimize or
mitigate adverse effects. Although all of the consulting parties participate in this step, inmost cases
only the federal agency official and the SHPO (or THPO for tribal lands) must actually reach
agreement, as expressed in a Memorandum of Agreement. If the Council participates, then it must
also by a signatory to the MOA. For historic properties off tribal lands, the agency official "may"
invite a concerned tribe to be a signatory, and the signatories "should" invite any party that assumes
responsibility under an MOA to become a signatory. The refusal of an invited party to sign,
however, does not invalidate the MOA. In the event that consultation does not lead to an agreement
on ways to avoid, minimize or mitigate adverse effects, the agency official, SHPO/THPO or the
Council may decide that further consultation will not be productive. In such a case, the process will
move on to a fifth step.
Step 5 -Failure to Resolve Adverse Effects. The outcome of this step may turn on which
party terminates consultation. If the federal agency official terminates consultation, then the agency
must request the Advisory Council to comment on the undertaking. The request must be made by
"the head of the agency or an Assistant Secretary or other officer with major department-wide or
agency-wide responsibilities." If the SHPO terminates consultation, the agency official and the
Council may continue consultation and execute an MOA without the SHPO's involvement. If the
THPO terminates consultation, the agency official and the Council cannot execute an MOA, and the
Council provides comments on the undertaking.
In any case in which the process does not conclude in an MOA, Section 110(1) of the Act,
16U.S.C. § 470h-2(l), provides that a decision to proceed with the undertaking must be made by the
head of the agency, and that this decision-making responsibility cannot be delegated. Section
800.7(c)(4) of the regulations incorporates this statutory requirement. The agency head's decision
must include a summary of the decision that contains the rationale for the decision and evidence of
consideration of the Council's comments.
Native American Graves Protection and Repatriation Act
25U.S.C. §§3001-3013, 18U.S.C. § 1170
The Native American Graves Protection and Repatriation Act (NAGPRA) establishes rights
of ownership or control over Native American human remains and certain kinds of "cultural items"
(funerary objects, sacred objects, and objects of cultural patrimony) in two kinds of situations:
Repatriation - These provisions of NAGPRA apply to human remains and cultural items that
are under the custody of federal agencies or "museums" that receive federal funds (including
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state and local government agencies); and
Graves protection - These provisions of NAGPRA apply to human remains and cultural
items that are embedded in the ground on federal lands or "tribal lands" (a term that includes
all lands within the exterior boundaries of any Indian reservation, all dependent Indian
communities, and certain lands administered for the benefit of Native Hawaiians).
Both the repatriation provisions of NAGPRA and the graves protection provisions establish
requirements for consultation with tribes. These consultation requirements are implemented through
regulations issued by the Secretary of the Interior (acting through the National Park Service). 43
C.F.R. part 10. In the context of the review of proposed federal actions that are likelyto have effects
on the environment, the graves protection provisions of NAGPRA may apply, if federal lands or
tribal lands would be affected by the proposed federal action. The consultation requirements of
NAGPRA's graves protection provisions are summarized below. These provisions may arise in
either of two contexts: intentional excavations or inadvertent discoveries.
1. Intentional Excavations. NAGPRA uses the issuance of a permit under the
Archaeological Resources Protection Act (ARPA) as a mechanism to protect Native American
graves and imbedded cultural items. Excavation or removal form federal lands or tribal lands is
prohibited unless an ARPA permit has been issued. 25 U.S.C. § 3002(c).
(a) Federal Lands. Notice and consultation with the culturally affiliated tribe
(or NHO) is required prior to issuance of a permit. While consent is not a requirement for the
issuance of a permit, the culturally affiliated tribe (or NHO) has the right to determine the ultimate
disposition of any excavated human remains or cultural items. See 43 C.F.R. §§ 10.3, 10.5.
(b) Tribal Lands. Consent of the tribe (or NHO) is required. BIA is the
permitting authority, including permits for lands within reservation boundaries other than trust or
restricted Indian lands. Id. § 10.3(b)(l).
2. Discovery Situations. If Native American human remains or cultural items are
discovered on federal lands or tribal lands, NAGPRA requires that the activity that led to such
discovery cease. Any person making such a discovery must provide notice to the responsible federal
agency official, for discoveries on federal lands, and the responsible tribal official for discoveries
on tribal lands. 25 U.S.C. § 3002(d); 43 C.F.R. § 10.4. For discoveries onfederal lands, the federal
official then must provide notice to the appropriate tribe or NHO. The activity that led to the
discovery may be resumed thirty days after certification that notice has beenreceived. If resumption
of the activity would require excavation or removal of human remains or cultural items, an ARPA
permit is required. 43 C.F.R. § 10.4(d)(v), (e)(iii).
In the event that Native American human remains or cultural items are removed from federal lands
or tribal lands, section three of NAGPRA, 25 U.S.C. § 3002, sets outtherules for determining who
has rights of ownership or control over the human remains or cultural items. For humanremains and
associated funerary objects, lineal descendants have the highest priority. If lineal descendants cannot
be ascertained, and for unassociated funerary objects, sacred objects and objects of cultural
patrimony, if the items were discovered on tribal lands, the tribe on whose lands they were
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discovered has the right of ownership or control. If such items were found on federal lands, the tribe
with the closest cultural affiliation has the right of ownership and control. If the federal lands where
the discovery was made have been determined by the Indian Claims Commission or Court of Claims
to be the aboriginal lands of a tribe, that tribehas a presumptive right of ownership or control unless
another tribe makes a stronger showing of cultural affiliation. (The map of Indian land areas
judicially established, prepared by the Indian Claims Commission in 1977, is available at:
.) The procedure for determining rights of
custody to such items is governed by the NAGPRA regulations. 43 C.F.R. § 10.6.
Federal Power Act
16U.S.C. §§791-828(c)
The Federal Power Act (FPA) requires the Federal Energy Regulatory Commission (FERC
or the Commission) to issue a license to all new hydropower projects built by anyone other than the
federal government. These licenses are for a fixed period of time, and once the time limit has
expired, a new license must be issued. The relicensing process allows state and federal agencies,
conservation groups, Indian tribes, and the general public to comment on the proposed
license.
1. Consultation Requirements for Relicensing of Licensed Projects. Before it files
any application for a new license, non-power license, an exemption from licensing, or surrender of
a project, a potential applicant must consult with various federal or state agencies and any Indian
tribe that may be affected by the project. There are three stages of consultation the potential
applicant must go through, with varying degrees of consultation with affected tribes.
(a) First Stage of Consultation. The potential applicant must provide agencies
and Indian tribes with detailed information including maps, general engineering design, summary
of operational mode, identification of the affected environment and mitigation plans, water regime
information, and proposed studies. 18 C.F.R. § 16.8(b)(l)(i-vii). Within thirty to sixty days from
the time the information has been sent, the potential applicant will hold a joint meeting, along with
an opportunity for a site visit with all pertinent agencies and tribes. The issues to be discussed and
the time and place of the meeting will be given to each agency, tribe, and 1he Commission at least
fifteen days in advance. Id. § 16.8(b)(2)(i-ii).
No later than sixty days after the joint meeting each Indian tribe must provide the potential
applicant with written comments identifying necessary studies to be performed or information to be
provided by the potential applicant. The studies, known as additional information requests (AIRs),
must include: (1) a study description; (2) the study objectives; (3) an explanation of the resource
issues and its goals and objectives for those resources; (4) an explanation of why the study
methodology recommended is more appropriate than that currently being used; (5) a statement of
whether the methodology is generally accepted in the scientific community; and (6) an explanation
of how the study will be useful to the tribe in furthering its goals and objectives. Id. § 16.8(b)(4)(i-
vi).
If the tribe and potential applicant disagree as to any matter arising during the first stage of
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consultation, or to the need to conduct a study, the dispute may be referred in writing to the Director
of the Office of Hydropower Licensing (the Director) for resolution. Id. § 16.8(b)(5)(i). The party
entering the dispute must serve a copy of the request for resolution to the disagreeing party at the
time the dispute is submitted to the Director. The disagreeing party may submit a written response
to the Director within fifteen days of receiving the copy of the request for resolution. Id. §
16.8(b)(5)(ii). The request for resolution and responses must be filed with the Secretary of the
Commission with an indication that they are for the attention of the Director of the Office of
Hydropower Licensing. The Director will resolve disputes by letter to the potential applicant and
disagreeing tribe. The first stage of consultation ends when all participating agencies and tribes
provide the written comments or sixty days after the joint meeting, whichever occurs first. Id. §
16.8(b)(6).
(b) Second Stage of Consultation. A potential applicant must complete all
reasonable and necessary studies and obtain all reasonable and necessary information requested by
tribes in the first stage of consultation prior to filing the application if the results: would influence
the financial or technical feasibility of the project; areneeded to determine the design or location of
project features, alternatives to the project, impact of the project on natural or cultural resources,
mitigation or enhancement measures, or to minimize impact on significant resources. Id. §
A potential applicant must complete all reasonable and necessary studies and obtain all
reasonable and necessary information requested by tribes in the first stage of consultation after the
filing the application but before the issuance of the license provided it has produced the appropriate
information described in 18 C.F.R. § 16.8(b)(l)nolaterthanfouryearspriortotheexpirationofthe
existing license and the results are those described in 18 C.F.R. § 16.8(c)(l)(i)(A or B) and would
take longer to conduct and evaluate than the time between the consultation and new license
application filing date. Id. § 16.8(c)(l)(ii)
A potential applicant must complete all reasonable and necessary studies and obtain all
reasonable and necessary information requested by tribes in the first stage of consultation after a new
license is issued if the studies can be conducted and the information obtained only after construction
or operation of the proposed facilities would determine the success of protection, mitigation,
enhancement measures, or would be used to refine project operation or modify project facilities. Id.
§ 16.8(c)(l)(iii).
If, after the first stage of consultation is over, the tribe requests an AIR not previously
identified, the potential applicant will promptly initiate the study or gather the information unless
the Director determines the study is unreasonable or unnecessary or that the methodology usedis not
a generally accepted practice. Id. § 16.8(c)(2).
The potential applicant shall provide each resource agency and Indian tribe with a copy of
its draft application. The draft application shall indicate the type of application to be filed with the
Commission and respond to any comments and recommendations made by the 1ribe through AIRs
including a discussion of the results and any proposed protection, mitigation, or enhancement
measures for resources of interest to the tribe and which were identified in the first stage of
consultation. The potential applicant should also include a written request for review and comment.
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Id. § 16.8(c)(4).
An Indian tribe will have ninety days from the date of the potential applicant's letter to
provide written comments. If the written comments indicate that a tribe has a substantive
disagreement with a potential applicant's conclusions regarding resource impacts or proposed
protection, mitigation, or enhancement measures the potential applicant should hold at least one joint
meeting with the disagreeing tribe and other agencies with similar or related areas of interest,
expertise, or responsibility. The joint meeting should take place no later than sixty days from the
date of the tribe's written comments. The jointmeeting should attempt to reach agreement on the
potential applicant's plan for environmental protection, mitigation, or enhancement measures. The
potential applicant shall consult with the disagreeing tribe and other agencies with similar or related
areas of interest, expertise, or responsibility on the scheduling of the joint meeting. The potential
applicant shall also provide both the tribe, interested agencies, and the Commission written notice
of the time and place of each meeting and a written agenda of the issues to be discussed at least
fifteen days in advance. Id. § 16.8(c)(5)-(6)(ii).
The potential applicant and disagreeing tribes may conclude the joint meeting with a
document stating any agreement regarding environmental protection, mitigation, or enhancement
measures and any issues left unresolved. Id. § 16.8(c)(7). In the potential applicant's application,
all disagreements with resource agencies or Indian tribes must be described, including an explanation
of the basis for the disagreement and any document developed during the joint meeting. Id. §
16.8(c)(8).
The second stage of consultation ends ninety days after the potential applicantsubmits a copy
of its draft application to resource agencies and Indian tribes when no substantive disagreements
have been registered. If a resource agency or tribe indicates a disagreement with the draft
application, the second stage of consultation ends at the conclusion of the last jointmeeting. Id. §
(c) Third Stage of Consultation. The third stage of consultation begins with the
filing of an application for a new license, non-power license, exemption from licensing, or surrender
of license accompanied by a letter certifying that copies of the application are being mailed to the
resource agencies, Indian tribes, and other government officers. The potential applicant must
provide copies of its application for a license, any deficiency correction, revision supplement,
response to AIRs, or amendments to the application, and any written correspondence from the
Commission requesting correction of deficiencies or submittal of additional information. Id. §
2. Compliance with Consultation Requirements. If a tribe waives in writing
compliance with any requirement of 18 C.F.R. § 16. 8, a potential applicant is not required to comply
with requirements in regard to the tribe. Id. § 16.8(e)(l). If a tribe fails to timely comply with a
provision, the potential applicant may proceed to the next sequential requirement without waiting
for the tribe to comply. Id. § 16.8(e)(2). However, a tribe's failure to comply with a provision
regarding a requirement of 1 8 CF.R. § 16.8 does not preclude its participation in subsequent stages
of the consultation process. Id. § 16.8(e)(3).
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3. Application Documentation. An application for a license requires the potential
applicant to include documentation of consultation and any disagreements with resource agencies
or tribes. These documents must be included in Exhibit E of the application. Exhibit E must
include: (1) any tribe's letters containing comments, recommendations, and proposed terms and
conditions; (2) letters from the public containing comments and recommendations; (3) notice of any
remaining disagreement with a tribe on the need for a study or information on any environmental
protection, mitigation, or enhancement measure and the applicant's reason for disagreement with the
tribe; (4) evidence of any consultation requirement waivers by the tribe; (5) evidence of all attempts
to consult with the tribe, including copies of documents showing the attempts and the conclusion of
the second stage of consultation; (6) an explanation of how and why the project would, would not,
or should not comply with a plan as defined in section 2.19; (7) a copy of water quality certification,
copy of request for certification, evidence ofwaiver of water quality certification; and (8) a statement
showing how the applicant's proposal addresses issues raised by the public. Id. § 16.8(f)(l-8).
4. Other Meetings. Prior to holding a meeting with a resource agency or tribe the
potential applicant must provide the Commission and any resource agency or tribe (with similar
interests, expertise, or responsibility to the agency or tribe with which the potential applicant is
meeting) with written notice of the time and place of each meeting and a written agenda of the issues
to be discussed at least fifteen days in advance. Id. 16.8(h).
5. Public Participation. At le ast f ourt een d ays in advance of the j oint meeting, held in
the first stage of consultation, the potential applicant must publish at least one notice of the purpose,
location, and timing of the joint meeting in a daily or weekly newspaper published in the county or
counties in which the existing project or any part thereof or the lands affected thereby are situated.
The notice must include a written agenda of the issues to be discussed at the joint meeting. Id. §
16.8(i)(l). A potential applicant should make available to the public for reading and reproduction
all information detailed in 18 C.F.R. § 16.8(b)(l). The information should be available from
fourteen days in advance of the joint meeting until the date of the joint meeting. Id. § 16.8(i)(2)(i)
Nuclear Waste Policy Act of 1982
42 U.S.C. §§ 10101-10270 (1994)
Congress passed the Nuclear Waste Policy Act (NWPA) to establish federal policy for the
responsible disposal of high-level radioactive waste and spent nuclear fuel. The Act establishes rules
for the siting, construction, and operation of waste repositories "that will provide a reasonable
assurance that the public and the environment will be adequately protected from the hazards posed
by high-level radioactive waste." 42 U.S.C. § 1013 l(b). In order to fulfill this purpose, the Act
requires the Department of Energy, the Nuclear Regulatory Commission, and any other agency
involved in the siting, construction, or regulation of nuclear waste storage facilities to actively
include affected tribes in the decision making process. 42 U.S.C. § 10121. The Act requires the
Secretary to notify the governing body of any Indian tribe whenever a nuclear waste repository is
proposed to be located on tribal lands. 42U.S.C.§ 10121(a). Foil owing receipt of such notification,
"affected tribes" are entitledto certain rights of participation and consultation. 42 U.S.C. § 10121(b).
The Act defines "affected tribes" as not only those within whose reservations a facility is proposed
to be located, but also those whose "federally defined usage rights" may be, in the opinion of the
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Secretary, substantially and adversely affected by the proposed facility.
1. Right to Information. Agencies involved in the proposed project must provide to
the affected tribes, timely and complete information regrading the plans for siting, developing,
constructing, operating, and decommissioning the proposed facility. 42 U.S.C. § 10137(a)(l). In
addition, tribes may request information from the Secretary, who must respond with a written
response within thirty days. 42 U.S.C. § 10137(a)(2). This response should include either the
information requested or the reasons why the information cannot be soprovided. Id. If the Secretary
fails to respond within thirty days, the tribe can file a formal objection to the President. Id. If the
President or Secretary fails to respond within thirty days of the receipt of the objection, the Secretary
is required suspend all activities in developing the repository and shall not renew activities until he
proper response to the tribe's request is made. Id.
2. Right to Consultation and Cooperation. Whenever any study is conducted to
determine the suitability of an area for a repository, the Secretary shall consult and cooperate with
and affected Indian tribe regarding the health, safety, environmental, and economic impacts of the
propped facility. 42 U.S.C. § 10137(b). In developing plans for a nuclear-waste facility, the
Secretary must take into account the concerns of the tribe "to the maximum extent feasible..." Id..
Federal regulations also require consultation with the affected tribes to determine whether the social
and economic impacts of a proposed facility can be offset by reasonable mitigation and
compensation. 10 C.F.R. § 960.5-2-6.
3. Written Agreement. Within sixty days after the tribe is notified of the proposed
project, the Secretary shall seek to enter into a binding written agreement with the tribes that sets
forth the procedures for consultation and cooperation with the 1ribe. 42 U.S.C. § 10137(c). The
agreement should be completed within six months and should describe, among other things, how to
study the safety, economic, social and environmental impacts of the proposed facility, how the
Secretary will respond to comments and recommendations from the tribal government, how to share
information and resources, andhow objections should be resolved. Id. The document, which cannot
affect the ultimate authority of the Commission, must also establish procedures to periodic review
and modification of the agreement. Id.
4. Right to On-site Representative and Financial Assistan ce. To help empower the
tribe to actively participate in the siting decision, the Act offers affected tribes the opportunity and
funding to appoint a representative to conduct on-site oversight activities. 42U.S.C. § 10137(d). In
addition, the Act authorizes the Secretary to provide grants to help affected tribes study the impacts
of the project, develop recommendations, engage in monitoring and testing, and to educate tribal
members regarding the siting proposal. 42U.S.C. § 10138(b). Within six months after construction
of a facility is authorized, the Secretary shall also make available additional funds to help tribes
mitigate the impacts of the project. To receive any financial assistance under the Act, an affected
tribe must submit a detailed report to the Secretary describing any economic, social, health, or
environmental impacts that are likely to result from the development of the repository facility. Id.
The details of any payments made to the tribes pursuant to the Act should be set forth in the written
consultation agreement. Id.
5. Right to Petition Congress. If the consultation process does not result in a favorable
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agreement, the tribe may submit a formal petition to Congress expressing the tribe's disapproval of
the proposed project. 42U.S.C. § 10138. Once Congress has received the petition objecting to the
siting decision, the designation of the proposed site will not be effective, unless both houses pass a
resolution within ninety days specifically approving the proposed plan. 42 U.S.C. § 1034(b)-(c).
Intermodal Surface Transportation Efficiency Act of 1991
23 U.S.C. §§ 102-189 (1999 Supp.)
The Intermodal Surface Transportation Efficiency Act (ISTEA) is a highway appropriations
statute that replaced the recently expiredFederal Aid Highway Act that provided state' s with funding
to construct and maintain the U.S. interstate system. Under the new Act, the Secretary of
Transportation may make grants to states with federally approved highway programs. 23 U.S.C. §
133(b). The Secretary may withhold highway funding, however, if a state fails to substantially
comply with the provisions of the Act. 23 U.S.C. § 133(e)(l). To withhold funding, the Secretary
must first give the state notice that it is out of compliance, and allow the state sixty days to take
corrective action.
ISTEA requires states to develop state-wide long-rangetransportationplans and all federally
funded transportation projects in the state must be consistent with the plan. 23 U.S .C. § 135. In
developing the plans that include Indian country, states must consult with affected tribal
governments and specifically address their concerns. 23 U.S.C. § 135(d)(2), (f)(l)(iii). While the
Act does not speak directly to the duration of the consultation requirement, the fact that
transportation-improvement plans are subject to the Secretary's biennial review suggests that the Act
requires ongoing consultation with tribal officials. 23 U.S.C. § 135(fX4).
Alaska National Interest Lands Conservation Act
16 U.S.C. §§ 3102-3203 (1994 & Supp. 2000)
As amended, the Alaska National Interest Lands Conservation Act (ANILCA) is designed
"to protect and provide the opportunity for continued subsistence uses on the public lands by native
and non-native rural residents." 16U.S.C.§3111(4). In addition, the Act "enable[s] rural residents
who have personal knowledge of local conditions and requirements to have a meaningful role in the
management offish and wildlife..." Id. § 3111(5). To accomplish these goals, the statute allows
the Department of the Interior to enter into cooperative agreements with tribal organizations to
effectuate the purposes and policies of the Act. Id. § 3119. The Secretary is also required to
undertake studies on subsistence uses, and in doing so, must seek data from and consult with local
residents. Id. § 3122.
ANILCA requires the Secretary to provide public participation opportunities to rural
communities whenever an agency action would significantly restrict subsistence uses in a particular
area. 16 U.S.C. § 3120(a). Specifically, no such action can take place unless the Secretary of the
Interior gives prior notice to local communities and advisory committees established pursuant to 16
U.S.C. section 3115. Id. § 3120(a)(l). In addition, the Secretary is must hold hearings in the area
affected by the agency action. Id. § 3120(2). It should be noted, however, that the Ninth Circuit has
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held that ANILCA is not "Indian legislation," and therefore does not give Alaska Native
communities the benefit of the traditional rule that requires courts to interpret ambiguous statutes
in favor of the tribes. See Hoonah Indian Assoc. v. Morrison, 170 F.3d 1223, 1228-29 (9th Cir.
1999).
NOTE: This Addendum is not intended to represent a complete listing of all federal
laws and regulations that require or authorize consultation with tribes.
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ADDENDUM B
VARIOUS AGENCY CONSULTATION PROTOCOLS AND GUIDELINES
In response to President Clinton's April 29, 1994 Memorandum on Government-to
Government Relationships, many agency's have developed programs and protocols to guide
government officials in the consultation process. This addendum will provide brief descriptions of
intra-agency documents, memorandum, and policies that specifically address consultation with tribal
governments. In addition, many of these sources are readily available on-line, and this addendum
will provide web addresses whenever applicable. IPS requests input from agencies and all parties
and is open to suggestions on additional documents to be referenced in this addendum.
A. Guidelines Developed in Coordination withe Tribal Governments
U.S. EPA REGION 10, TRIBAL CONSULTATION FRAMEWORK (2000) (draft version).
In this draft document, EPA Region Ten (Region) outlines its policies for encouraging
regular participation by Indian tribes in Agency decisions affecting tribal members and resources.
The document provides guiding principles for a government-to-government relationship and defines
consultation as "two-way communication that works toward a consensus reflecting the concerns of
the affected federally recognized tribe(s)."
On specific matters affecting tribes, the Region is to contact the tribes as early as practicable.
The document also explains that it will not challenge the tribe' s legal right to consultation whenever
a specific Indian trust resource is involved and will try to hold meetings in Indian country to the
extent resources allow. The document recognizes that consultation is separate from public
participation. Consequently, the Region will conduct a separate public participation process for all
interested stakeholders.
The Region has also provided for a method of issue resolution that first tries to resolves
disputes between the Agency and a tribe informally, at the staff level. If the dispute is not resolved,
supervisors will attempt to negotiate a workable solution. In an agreement is still not reached, the
Agency and tribe will issue progressively higher levels of management until consensus is reached.
The EPA Regional administrator is the final arbitrator of the dispute who will make his or her
decision after consultation with the elected tribal leader(s).
B. Protocols Developed Independently by Agencies
On November 8,1993, the Interior Secretary Bruce Babbitt issued Secretarial Order No. 3175
which required all departments to consult with tribal governments whenever tribal resources could
be potentially affected by a proposed agency action. In addition the departments were to publish
directives or policies to ensure that staff were familiar with the Secretaries mandate and that the
departments were in compliance with the order. The Order was latter incorporated into the Agencies
Departmental Manual. See DEPARTMENT OF THE INTERIOR, DEPARTMENTAL MANUAL pt. 512, ch.
2. (1995). Under the Agency's policy, consultation's by departments must be respectful of tribal
sovereignty and the Agency must be prepared to explain how its decision is consistent with the trust
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doctrine. See id. ch. 2.4.
1. U.S. FISH AND WILDLIFE SERVICE, NATIVE AMERICAN POLICY (1994).
In its formal policies, the Fish and Wildlife Service (USFWS) recognizes that "there is a
distinctive political relationship between the United States and Native American governments" and
"supports the authority of Native American governments to manage, co-manage, or cooperatively
manage fish and wildlife resources, and to protect their Federally recognized authorities." U.S.FISH
AND WILDLIFE SERVICE, NATIVE AMERICAN POLICY 3,4(1994). To effectuate to this policy, USFWS
will consult with tribal governments to the extent allowed by law. See id. at 5. For activities
affecting tribal fish and wildlife resources on non-reservation lands, USFWS will still give tribes
opportunities to participate in the Agency's decision-making process. See id. at 4.
The policy explains how USFWS will also coordinate enforcement of federal wildlife laws
with the tribe, including in areas bordering Indian country. See id. at 6. In addition, USFWS will
develop partnership agreements with tribes to facilitate the exchange of technical expertise regarding
wildlife conservation and recovery. See id. The policy also directs the Service to provide training
and other professional development opportunities to tribal members to assist tribes in developing
cooperative wildlife management programs. See id. at 7.
2. BUREAU OF LAND MANAGEMENT, No. H-8160-1, GENERAL PROCEDURAL
GUIDANCE FOR NATIVE AMERICAN CONSULTATION (1994), available at
http://lm0005.blm.gov/nhp/efoia/wo/handbook/h8160-l.html.
In 1994, the Bureau of Land Management (BLM) published a handbook on consultation
procedures to help assure "that Iribal governments, Native American communities, and individuals
whose interests might be affected have a sufficient opportunity for productive participation in BLM
planning and resource management decision making." BUREAU OF LAND MANAGEMENT, No. H-
8160-1, GENERAL PROCEDURAL GUIDANCE FOR NATIVE AMERICAN CONSULTATION ch. I., pt. A.
(1994). Although the handbook includes individuals in its definition of "consultation," it also
recognizes that the "[sjoverign status of Indian tribes and special provisions of law set Native
Americans apart from all other U.S. populations and define a special level of Federal agency
responsibilities." Id. ch.I., at pt. D. In light of these unique responsibilities, the Handbook sets forth
a Consultation and Documentation Standard:
Before making decisions or approving actions that could result in
change in land use, physical changes to lands, or resources, changes
in access, or alienation of lands, BLM managers must determine
whether Native American interests would be affected, observe
pertinent consultation requirements, and document how this was
done. In the face of legal challenge, the consultation record will be
the BLM's basis for demonstrating that the responsible manager has
made a reasonable and good faith effort to obtain and consider
appropriate Native American input in decision making. Id. ch. 1, at
pt. B.
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Under the Agency's policy as described in the Handbook, consultation is designed to not only
identity tribal interests and concerns, but also to examine the tribes suggestions on how to effectively
address the concerns. See id. ch. II, at pt. E. "Consultation is incomplete, and largely pointless,
unless its is directed toward the identification of mutually acceptable solutions." Id. When tribal
cultural and religious natural resources are involved, these solutions mayrequire something different
from the traditional analysis of mitigation options found in statutes such as NEPA and NHPA. See
id. pt. D.
The Handbook describes the step-by-step process of the BLM should follow in carrying out
consultation. See generally id. ch. Ill (setting forth guidance to help "establish ongoing, credible
consultation relationships"). For example, the Handbook describes how staff must identify the
appropriate parties to consult, including officials form recognized tribes, representatives of non-
recognized Indian communities, traditional religious and cultural leaders, and lineal descendants of
deceased Native Americans whose remains are in federal possession or control. See id pi. B. In
deciding whether the level consultation is sufficient, Agency staff must examine on a case-by-case
basis: (1) the potential for harm caused by the proposed action; (2) alternatives which would reduce
the harm and disruption; (3) whether all appropriate tribal groups have been consulted; (4) the nature
of the issues raised; (5) the intensity of the concern expressed; (6) the legal requirements of treaties;
(7) the productivity of the consultation; and (7) the need for further consultation. Id. pt. E.
3. NATIONAL PARK SERVICE, PROTECTION OF INDIAN TRUST RESOURCES (1995).
Section four of this document explains that NFS will consult with tribal governments on
matters of mutual interest and concern. Consultation procedures to provide direct participation
should be developed with tribal governments and privacy and confidentiality shall be respected "to
the extent allowed by law." In addition, the document calls on the agency to provide staff training
to improve its employees' understanding of the government-to-government relationship, trust
responsibilities, and tribal culture and history.
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ADDENDUM C
CONSULTATION GUIDING PRINCIPLES AND CRITICAL ELEMENTS
The following outline of guiding principles andcritical elements for consultation with Indian
tribes is based on the text set forth in Chapter 3 of this Guide, titled "Methods for Effective
Consultation." The outline highlights key points found in that Chapter's more detailed discussion.
GUIDING PRINCIPLES
A. Know the Tribes
Federal agencies should know of: (1) all tribes within their jurisdiction including without
limitation those tribes with jurisdiction over tribal land, who claim a historical, cultural, religious,
customary, cultural, or aboriginal relationship with land within the agency's jurisdiction; (2) all tribal
organizations within the agency's jurisdiction; (3) all tribes who may attach religious and cultural
importance to historic places that may be affected by the agency's actions.
B. Build Ongoing Consultative Relationships with Tribes
Conduct consultation within the framework of an ongoing government-to-government
relationship. Ongoing relationships will help tribes and agencies best allocate their resources for
purposes of consultation.
C. Institutionalize Consultation and Collaboration Procedures
Work with tribes to develop formal consultation policies, and use a memorandum of
agreement to document arrangements with a specific tribe. Publish agency consultation policies and
procedures, and make them available to tribal governments and the affected public.
D. Contact Tribes Early and Allow Sufficient Time to Consult
1. Provide the tribe adequate time to formulate and to express its views, and consider
tribal views before making decisions.
2. Schedule consultation efforts to facilitate meaningful tribal consultation that is
consistent with the federal trust responsibility owed to that tribe.
3. Pursue consultation even if a tribe does not respond to initial requests to engage in
consultation, and recognize that, based on historical dealings, some tribes may
question whether their participation will be meaningful.
E. Establish Ongoing Training Programs for all Staff on Consultation with Tribes
F. Maintain Honesty and Integrity in the Consultation Process
G. View Consultation as an Integral and Essential Element of the Government-to-
Government Relationship with Tribes, and Not Simply As a Procedural Requirement
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CRITICAL ELEMENTS OF CONSULTATION
A. Preparation for Consultation
1. Be aware that tribes are culturally and administratively different from each other.
2. Allow ample time for the tribe to receive, process, and respond to requests for
consultation.
3. Understand that some kinds of information are sensitive, particularly information
regarding traditional religious practices.
4. Review any applicable agency consultation protocols and guidelines.
B. Participants in Consultation and Collaboration
1. Identify tribal representative(s) who will serve as the contact(s) in the consultation
process.
2. Determine if a tribe would prefer having federal agencies coordinate their consultative
efforts to reduce the burden on tribal staff and other resources.
3. Consultation with inter-tribal organizations may be useful on issues of regional or
national scope, however, such consultation is not a substitute for consultation with
each tribe unless specifically authorized by the involved tribe or tribes.
4. At times, it may be advisable under certain federal laws (e.g. Native American Graves
Protection and Repatriation Act and National Historic Preservation Act) to seek
information from tribal members and traditional religious leaders in addition to those
persons who have been formally designated by a tribe as contacts for consultation.
The interests of traditional leaders and cultural authorities may not always coincide
with those of tribal government.
C. Logistics and Mechanics
1. Work within the government-to-government context, and strive to ensure interaction
thro ugh officials of comparable governmental stature and authority.
2. Remember that tribal staff must have tribal government authorization to make policy
decisions or to take tribal positions.
3. The goal of consultation should be direct, two-way dialogue.
4. Clearly and plainly describe the proposed action or policy to tribal representatives and
community members.
5. Use informational meetings for larger audiences, and invite tribal contacts to attend
or co-sponsor public meetings; however, do not substitute information meetings for
separate agency meetings with tribal leadership, which is another essential element of
consultation.
6. When appropriate to seek involvement from members of the affected public, consult
with tribes about how to do effectively.
7. Work with tribal representatives to identify the ultimate goals of the consultation.
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ADDENDUM D
PUBLIC PARTICIPATION GUIDING PRINCIPLES AND CRITICAL ELEMENTS
The following set of guiding principles and critical elements for public participation in Indian
county were developed using The Model Plan for Public Participation, a document created by the
National Environmental Justice Advisory Committee. This Model Plan was redrafted for the
purposes of making it more applicable to Indian country.
GUIDING PRINCIPLES
A. Encourage Public Participation
Encourage public participation in all aspects of environmental decision making.
Communities, including all types of stakeholders, should be seen as equal partners in dialogue on
environmental and public health concerns in the community. In order to build successful
partnerships, interactions must:
• Encourage active community participation
• Institutionalize public participation
• Recognize community knowledge
• Utilize cross-cultural formats and exchanges
B. Maintain Honesty and Integrity
While working to involve the public in the decisionmaking processes, itis very important that
honesty and integrity be maintained. It is also important that the goals, expectations, and limitations
be established at the very beginning.
CRITICAL ELEMENTS
A. Preparation for Meetings
1. Co-sponsor the Meeting
Developing co-sponsoring and co-planning relationships with community organizations is
essential to successful community meetings. For this reason, governments should consider
co-sponsoring the meeting with a community organization and should share all planning roles.
These roles include:
• Decision making
• Development of the agenda
• Establishment of clear goals
• Leadership
• Outreach
2. Educate the Community
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It is important to educate the community on the subject matter and the decision-making
processes to allow for equal participation and provide a means to influence decision making.
3. Provide a Facilitator
A facilitator can ensure the process is fair by objectively overseeing the deliberations and
preventing any one group from being displaced in the process. The facilitator should be someone
who is experienced and sensitive to community participation and trained in environmental issues.
B. Participants
The following entities should be involved in environmental justice issues:
• Community and neighborhood groups
• Traditional leaders/elders
• Community service organizations (health, welfare, and others)
• Educational institutions and academia
• Environmental organizations
• Government agencies
• Industry and business
• Medical community
• Non-governmental organizations
• Religious communities
Identify key stakeholders, including:
• Educational institutions
• Affected communities
• Policy and decision makers (for example, representatives of agencies
accountable for environmental and public health issues, regulatory and
enforcement officials, and social agency staff).
C. Logistics
1. Where:
• The meetings should be accessible to all who wish to attend (public
transportation, child care, and access for the disabled should be considered).
• The meeting must be held in an adequate facility (size and conditions must be
considered).
• Technologies should be used to allow for more effective communication
(teleconferences, adequate translation, equipment, and other factors).
2 When:
• The time of day and year of the meeting should accommodate the needs of
affected communities (evening and weekend meetings accommodate working
people, and careful scheduling can avoid conflicts with other community or
cultural events).
3 How:
• An atmosphere of equal participation must be created (avoid using a "panel"
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or "head table").
An all day meeting may be necessary. The first part of the day should be
reserved for community planning and education.
The community and the government should share leadership and presentation
assignments.
D. Mechanics
• Maintain clear goals by referring to the agenda; however, do not be bound by it.
• Incorporate cross-cultural exchanges in the presentation of information and the
meeting agenda.
• Provide a professional facilitator who is sensitive to, and trained in, environmental
justice issues.
• Provide a time line that describes how the meeting fits into the overall agenda of the
issues at hand.
• Coordinate follow-up by developing an action plan and determining who is the contact
person who will expedite the work products from the meeting.
• Distribute minutes and a list of action items to facilitate follow-up.
CORE VALUES: PRACTICE OF PUBLIC PARTICIPATION
1. People should have a say in decisions about actions which affect their lives.
2. Public participation includes the promise that the public's contribution will influence
the decision.
3. The public participation process communicates the interests and meets the process
needs of all participants.
4. The public participation process seeks out and facilitates the involvement of those
potentially affected.
5. The public participation process involves participants in defining how they participate.
6. The public participation process communicates to participants how their input was,
or was not, utilized.
7. The public participation process provides participants with the information they need
to participate in a meaningful way.
Source: Interact: The Journal of Public Participation, Volume 2, Number 1, Spring 1996. Interact is published
by the International Association of Public Participation Practitioners, a non-profit corporation established in
1990 to serve practitioners throughout the world seeking practical experience designing and conducting public
involvement programs.
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ADDENDUM E
GLOSSARY
Allotment: Surveyed reservation land distributed by the government to individual Indians under
the provisions of the Dawes Allotment Act. Generally, 160 acres were allotted to heads of families;
eighty acres to single persons; and forty acres to other family members.
Bureau of Indian Affairs (BIA): Agency within the U.S. Department of the Interior responsible for
administering the U.S. government's relationships with Indian governments and for overseeing
Congress's trust responsibility for Indian lands and existence.
Cession: The ceding or yielding of rights, property, or territory from one group or
person to another.
Collaboration: To work together, in an intellectual effort.
Consultation: A collaborative process between government peers resulting in a consensus on how
to proceed.
Consultation and Coordination with Indian Tribal Governments: This is the title of Executive
Order 13084, signed by the President on May 14,1998 that requires federal agencies to respect tribal
self-government and sovereignty, tribal rights, and tribal responsibilities whenever they formulate
policies that affect Indian tribal governments in a unique or significant way.
Council: A group elected or appointed as an advisory or legislative body; council members are
usually equal in power and authority.
Culture: The ideas, customs, skills, arts, etc., of a given people in a given period.
Cultural Resources: Products of human activity or objects or places given significance by human
action or belief; include places of historic significance, archeological sites and resources, graves and
funery objects; also includes "traditional cultural properties" (see below).
Dawes Allotment Act: Also known as the General Allotment Act of 1887, this act required that
communally held reservation lands be allotted to individual for ownership; reservation lands not so
allotted were generally opened up by the federal government for settlement by non-Indians, often
leading to troublesome 'checkerboard' jurisdictional issues.
Domestic Dependent Nation: Term used by Chief Justice John Marshall in 1831 to characterize the
legal status of the Indian nations.
Environmental Justice: The fair treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the development, implementation and
enforcement of environmental laws, regulations and policies. Fair treatment means that no group of
people, including racial, ethnic or socioeconomic group should bear a disproportionate share of the
negative environmental consequences resulting from industrial, municipal and commercial operations
or the execution of federal, state, local and tribal programs and policies.
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Environmental Protection Agency (EPA): EPA is a federal agency whose mission is "to protect
human health and to safeguard the natural environment - air, water and land - upon which life
depends. The Administrator of EPA reports directly to the President of the United States.
EPA Indian Programs: This program involves significant intra-Agency and multimedia activities
designed to ensure protection of human health and the tribal environment, in amanner consistent with
EPA's trust responsibility to federally-recognized tribes,the government-to-government relationship,
and the conservation of cultural uses of natural resources. The underlying philosophy of this program
is that tribal governments are the appropriate authorities to set goals for environmental and human
health protection activities in Indian country.
EPA Policy on Environmental Programs on Indian Reservations: In 1984, EPA was the first
federal agency outside the Department of the Interior to adopt a formal policy statement regarding
Indian Tribes. This policy includes nine principles that guide EPA's relationship with Indian tribes
and implementation of its programs on Indian reservations.
Ethnocentrism: The belief that one's own ethnic group and culture are superior to all others.
Federally Recognized Tribes: Tribes with whom the federal government maintains an official
relationship, usually established by treaty, congressional legislation, or executive order. The Bureau
of Indian Affairs maintains and regularly publishes the list of federally-recognized Indian tribes.
Government-to-GovernmentRelationship: Relationship that exists between federally recognized
tribes and the federal government. Implicit in the relationship is a recognition of tribal sovereignty
as individual nations within theU.S. and the U.S. government's obligation to protect tribal lands. The
relationship between tribal and state governments should also be characterized as government-to-
government.
Indian Country: As defined by federal law, Indian country includes all land within the limits of any
Indian reservation under thejurisdiction of the U. S. government, notwithstanding the issuance of any
patent, and in eluding rights-of-ways running through the reservation. In addition, Indian country also
includes all dependent Indian communities as well as all Indian allotments to which Indian titles have
not been extinguished.
Indian Sacred Sites: This is the title of Executive Order #13007 signed on May 24, 196 by the
President that directs federal agencies that manage federal lands to accommodate access to and
ceremonial use of Indian sacred sites and avoid adversely affecting the physical integrity of such
sacred ties.
Jurisdiction: The legal authority a government has to govern its people and territory.
Litigation: Adversarial legal contest carried out through the judicial process.
Nation: A stable, historically developed community of people who share territory, economic life,
distinctive culture, and language.
Native Americans: This term broadly describes the people considered indigenous to North America
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who lived here prior to European colonization. The term includes "American Indians," "Indians,"
"Alaska Natives," "Eskimos," and "Aleuts," and "Native Hawai'ians."
Native Hawai'ians: These are people that can be described as Native American because they are
indigenous to their areas. Native Hawai'ians, however, have a different relationship with the U.S.
Government. As a group, they are not recognized as a legal, political entity or "government."
Nevertheless, Native Hawai'ians are described as a discrete group in the Native American Programs
Act of 1974 (NAPA).
Non-Intercourse Act: An act passed in 1790 that prohibited the sale of any Indian-owned land
without the approval of the United States Congress.
Non-Recognized Tribe: Tribe with whom the federal government does not maintain a government-
to-government relationship, and to which the federal government does not recognized a trust
responsibility towards, resulting in a lack of provision of federal services based on their status as an
Indian tribe or recognition of its land base or sovereignty.
Public Participation: When the public is informed of a proposed or actual action, and is provided
meaningful opportunities to participate in the decision-making process.
Plenary Doctrine: Doctrine stating that the federalgovernment has unlimitedand exclusive authority
and jurisdiction over Indian tribes. Because of this, states generally lack governmental authority over
Indian tribes and tribal members within Indian country, unless Congress has expressly delegated
authority to states.
Protectorate: Relationship between two sovereigns in which the weaker state places itself under the
protection of the more powerful state.
Referendum: Process of submitting and issue to popular vote.
Relocation: Federal policy formulated in 1952. Indians were relocated from rural and reservation
areas to urban areas for job training and employment.
Removal Act: Act passed by Congress in 1830 authorizing the president to negotiate with eastern
tribes for their removal to lands west of the Mississippi River.
Reservation: Lands reserved by a tribe during treaty negotiations with the federal government for
tribal use. Indian reservations are held in trust for the tribe by the federal government.
Reserved-Rights Doctrine: Doctrine enunciated by the courts that tribes retain all rights to their land,
water, and resources unless they have expressly granted them to the federal government.
Self-Determination: Decision-making control over one's own affairs and the policies that affect
one's life. This is also the name ofthe federal government's policy toward Indian nations, beginning
in 1978.
Sovereign: Supreme in power or authority.
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Sovereignty: The status, dominion, rule or power of a sovereign. Tribes have the power to make and
enforce laws for their tribe and reservation, and to establish courts and other forums for resolution
of disputes.
State-Recognized Tribes: Tribes that usually are not federally recognized but maintain a special
relationship with their state government and whose lands and rights are recognized by the state.
Supplemental Environmental Projects (SEPS): SEPs are projects that are included in the settlement
of a lawsuit involving a violation of an environmental statute administered by EPA. When such
lawsuits are settled, a party may agree to pay for SEPs that include environmental restoration or
enhancement.
Terminated Tribes: Tribes whose government-to-government and trust relationship with the federal
government has been terminated. Most of the more than one hundred terminations occurred between
1954 and 1961.
Termination: Federal Indian policy formally adopted by theU.s. Congressin 1954 that sought to end the federal
government's relationship with Indian tribes as prescribed under House Concurrent Resolution 108.
President Richard Nixon formally ended this policy in 1971.
Tradition: Cultural beliefs and customs handed down from ancestors.
Traditional Cultural Properties (TCP's): Beliefs or practices of a people tied to land or water, in
conjunction with religious beliefs and/or practices.
Treaty: Formal, legally binding contract between two sovereign nations; an agreement between two
or more nations, relating to peace, alliance, trade, etc.
Tribe: A group of individuals bound together by ancestry, kinship, languages, culture, and political
authority.
Trust: Property the title to which is legally held by one entity for the benefit of another.
Trust Doctrine: This is rooted in the treaties between Indian tribes and the U.S. government where
Indian land was ceded to the government, under treaties, in exchange for protection of remaining
tribal land and rights. Under this doctrine, theU.S. government holds title to Indian landin trust for
the beneficial use of Indian tribes and their members. This includes other protection, including
protection of the Indians' sovereign rights.
Trustee: Person to whom another's property, or the management of that property, is entrusted.
Trusteeship: Term referring to the federal government's legal obligation to protect tribal knd,
resources, and existence.
Unfounded Mandates Act: This act expressly authorized federal employees to talk to state
employees and tribal employees without violating the Federal Advisory Committee act.
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Village: Term used to denote a community of Alaskan natives.
Wardship: Refers to the federal government's responsibility as trustee over Indians as carried out
primarily by the Bureau of Indian Affairs.
ADDENDUM F
MISSION STATEMENT
NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
INDIGENOUS PEOPLES SUBCOMMITTEE
Preamble. In December 1995, two years after its creation, the U.S. Environmental Protection Agency's (EPA) National
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Environmental Justice Advisory Council (NEJAC) created a subcommittee—the Indigenous Peoples
Subcommittee—to advise the NEJAC on environmental justice issues facing Indigenous peoples. The NEJAC
recognized that these unique issues require the specialized knowledge, experience, and expertise of the
Subcommittee because of the government-to-government relationship between the sovereign Indian tribes and
other governments, and because environmental injustices strike to the core of the cultural and political integrity
of Indigenous communities.
Indigenous communities—whether Hawaiian or Alaskan natives, federally recognized Indian tribes and their
members, urban Indigenous peoples, non-federally recognized Indigenous communities, or Indigenous
communities across international boundaries—all belong to a community of people whose ancestors inhabited
this continent before European colonization. Since time immemorial, Indigenous peoples have lived a spiritual
ethic that is founded upon a deeply held respect for the air, the water, the land, the plants, and the animals; an
ethic that recognizes the essential link between the health of communities and the health of the ecosystems and
cultures that sustain those communities.
Composition of the Subcommittee. Members of the Subcommittee are selected from the following groups: elders and
spiritual leaders fro m Indige nous communities; individuals from Indigenous communities who have first-hand
knowledge of environmental justice issues facing Indigenous peoples; members of organizations that address
environmental impacts on Indigenous communities; members of academia; representatives of federally
recognized American Indian tribal governments that assert their sovereign powers to manage, protect, and restore
tribal ecosystems; representatives of state and local governments that govern areas neighboring Indigenous
communities; and representatives of industries that directly or indirectly impact indigenous communities. The
Subcommittee also will work closely with the Designated Federal Official who is knowledgeable aboutfederal
environmental programs available to Indigenous peoples.
Missio n. Together, members of the Subcommittee will draw upon their collective experiences, knowledge, and expertise
to facilitate the NEJAC's formulation of recommendations and advice provided to EPA on environmental justice
policy and direction as it affects Indigenous peoples. To achieve its mission, the Subcommittee will, at a
minimum, perform the following functions:
Provide a forum for representatives of Indigenous communities, including grassroots organizations from within
those communities, to bring their environmental justice concerns to the attention of the NEJAC and provide
recommendations and advice to the NEJAC to address those concerns.
Pro vide recommendations and advice to the NEJAC on the development of EP A-backed legislation, as well as
Agency policy, guidance, and protocol, to help achieve environmental justice for Indigenous peoples.
Provide recommendations and advice to the NEJAC to ensure that environmental justice issues of concern to
Indigenous peoples are addressed by EPA in a manner that fulfills the trust responsibility, respects tribal
sovereignty and the government-to-government relationship, upholds treaties, and promotes tribal self-
determination.
Recognize that issues facing Indigenous peoples span the spectrum of issues addressed by other NEJAC
subcommittees and interface with those subcommittees to ensure that all subcommittees address environmental
justice issues of concern to Indigenous peoples in an informed manner.
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