MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY
COORDINATION AND COLLABORATION FOR THE PROTECTION OF TRIBAL
TREATY RIGHTS AND RESERVED RIGHTS
among the
Advisory Council on Historic Preservation,
U.S. Department of Agriculture,
U.S. Department of Commerce.
U.S. Department of Defense,
U.S. Department of Education,
U.S. Department of Energy,
U.S. Department of Homeland Security,
U.S Department of Housing and Urban Development,
U.S. Department of the Interior,
U.S. Department of Justice,
U.S. Department of Labor,
U.S. Department of State,
U.S. Department of Transportation,
U.S, Department of Veterans Affairs,
U.S. Environmental Protection Agency,
U.S. Office of Personnel Management,
White House Council on Environmental Quality
I, Purpose and Principles
The signatory agencies (Parties) enter into this Memorandum of Understanding (MOU) to affirm
our commitment to protect tribal treaty rights, reserved rights and similar tribal rights to natural
and cultural resources. The Parlies intend to demonstrate that commitment through earh
consideration of treaty and reserved rights in agency decision-making and regulatory processes.
The Parties intend to enhance interagency coordination and collaboration to protect such treaty
and reserved rights and to fully implement federal government treaty obligations.
MEMORANDl 'M OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORA 1 ION FOR THE PROTECTION OF TRIBAL TREA'I Y AND RESERVED RIGHTS
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Treaty-protected rights to use of and access to natural and cultural resources are an intrinsic part
of tribal life and are of deep cultural, economic, and subsistence importance to tribes. Main
treaties protect not only the right to access natural resources, such as fisheries, but also protect
the resource itself from significant degradation. I jnder the I ).S. Constitution, treaties are part of
the supreme law of the land, with the same legal force and effect as federal statutes. Pursuant to
this principle, and its trust relationship with fedcrallv recognized tribes, the United States has an
obligation to honor the rights reserved through treaties, including rights to both on and. where
applicable. off-reser\ation resources, and to ensure that its actions are consistent with those
rights and their attendant protections. Accordingly, the Parties recogni/e the need to consider and
account for the effects of their actions on the habitats that support treat)-protected rights,
including how those habitats will be impacted by climate change.
Tribes. Alaskan Natives and Native Hawuiians that do not have formal treaties may also have
rights that should be considered in federal decision-making and regulator} processes addressed
by Parties under the framework of this MOU.
II. Background
from 1778 to 1871, the United States' relations with American Indian tribes were defined and
conducted largely through treaty-making. Through these treaties. Indian tribes ceded land and
other natural and cultural resources to the United States, while retaining all rights not express!)
granted. The United Slates Supreme Court has affirmed this principle of reserved rights,
explaining that treaties are "not a grant of rights to the Indians, but a grant of rights from them, a
reservation of those not granted." I 'tiiled Stales v. With ins, 198 I '.S, 371. 381 (1905). Many of
these treaties guaranteed the signatory tribes a unique set of rights both on and. where applicable,
off reservation, including rights to health care, education and rights reserved by tribes relating to
natural resources, such as the right to hunt, fish, and gather on land ceded by tribes and on
reservation land retained by tribes.
The Supreme Court has explained that Indian treaties are to be interpreted liberally in favor of
tribes, giving effect to the treaty terms as tribes would have understood them, with ambiguous
prov isions interpreted for their benefit. Treaties are to be interpreted in accordance with the
federal Indian canons of construction, a set of longstanding principles developed by courts to
guide the interpretation of treaties between the U.S. government and Indian tribes. This means
that federal agencies must give effect to treaty language and ensure that federal agency actions
do not conflict with tribal treat) and reserved rights.
Integrating consideration of tribal treaty and reserved rights into agency decision-making and
regulator) processes is consistent with the federal government's trust responsibility to federally
recognized tribes and to fundamental principles of good government. Treaties themselves are the
source of legal authority to ensure that agency processes account for reserved treaty rights.
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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The Parties also recognize that the United States has affirmed the United Nations Declaration on
the Rights of Indigenous Peoples (UN DRIP). While riot legalK binding, the UN DRIP affirms
the responsibility of the Parties to recognize. respect and consider tribal interpretations of their
own treat) and reserved rights.
The Parties recognize that other sources of federal law ma\ also protect treaty and reserved tribal
rights relating to cultural and natural resources. The Parties intend to consider these other sources
and rights as well, as part of the activities listed below.
Ill, Participating Agency Agreement
The Parties intend to work together to consult and coordinate with federally recognized Indian
tribes, as appropriate, in de\eloping and implementing the following actions:
1. Support the creation, integration, and use of a searchable and indexed database of all
treaties between the United States gov eminent and tribal nations, to facilitate compliance
with our treat) obligations and this MOU;
2. Continue and enhance the Parties' ongoing efforts to integrate consideration of tribal
treat} and reserved rights early into Parties' decision-making and regulatory processes to
ensure that agency actions are consistent with constitutional, treaty, reserved, and
statutory rights;
3. Continue to develop, improv e and share tools and resources to identify, understand, and
analyze tribal treaty and reserved rights that may be adversely impacted or otherwise
affected by agency decision-making, regulatory processes or other actions or inaction;
4. Strengthen its consultation policies to give clear guidance on the duties and
responsibilities of the Parties to incorporate tribal treat) and reserv ed rights earl) in their
decision-making process, to improve consultation and coordination w ith federal!)
recognized tribes, and to provide a means of dispute resolution regarding tribal
complaints of the sufficiency, timing and agency compliance with those consultation
policy requirements;
5. Integrate consideration of tribal treaty and reserved rights into the Parties* ongoing work
to address the climate crisis, including sharing data and information regarding how tribal
treaty and reserved rights are affected b\ climate change;
6. Develop best practices and procedures to protect tribal treaty and reserved rights in
federal decision-making and regulatory processes. Within one year of signing this MOU,
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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each participating agency will pro\ ide to the Executive Director of the White House
Council on Native American Affairs the practices and procedures it has implemented to
meet this objective.
7, Establish a working group with members from each of the participating agencies. The
purpose of the working group is to enhance interagency collaboration and coordination,
address significant issues as the) arise, and report annually on Parts actions regarding
tribal treat) and reserved rights. The working group intends to:
a. Meet monthly;
b. Include a sub-group of agency attorneys to provide legal support' to the working
group;
c. facilitate interagency coordination on legal issues relating to tribal treaty rights;
d. Submit an initial report to the Executive Director of the White House Council on
Native American Affairs within 180 davs of the execution of this MOl I. This
Report will identify steps signatory agencies have taken to implement the original
version of this MOU. signed in 2016.
e. Develop an annual combined report with information submitted by the Parties for
Part) leadership and the Executive Director of the White House Council on
Native American Affairs. This annual combined report will highlight significant
issues raised b\ representatives of Indian tribes. Indigenous organizations, and
agency officials regarding the protection of treaty and reserved rights. The report
will also highlight the best practices and procedures developed by Parties of the
working group.
8. Train appropriate station how to recognize tribal treaty and reserved rights and ensure
that these rights are considered early in Parties decision-making processes.
IV. General Provisions and Limitations
This MOl1 is a voluntary agreement that expresses the good-faith intentions of the Parties, is not
intended to be legal!) binding, does not create any contractual or fiscal obligations, and is not
enforceable bv any part). It does not create any right or benefit, substantive or procedural,
enforceable by law or equity, by any party, against the Parties, their officers or employees, or any
other person. This MOU does not direct or apply to any person outside of the Parties,
All commitments made by the Parties in this MOU are subject to the availability of appropriated
funds and budget priorities. Nothing in this MOU. in and of itself, obligates the Parties to expend
appropriations or to enter into any contract, assistance agreement, interagency agreement or
incur other financial obligations. Any transaction involving transfers of funds between the
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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Parties to this MOU will be handled in accordance with applicable laws, regulations, and
procedures under separate written agreements,
¥. Administrative Provisions
1, This MOU shall be executed as of the date of the last signature and shall remain in effect
for ten (10) years unless terminated or otherwise extended through a modification of this
MOU, This MOU may be extended or amended upon written request from any Party and
the subsequent written concurrence of the others.
2, Any Party can opt out of this MOU by providing a 60-day written notice to the other
signatories.
3, Other federal agencies may participate in this MOU at any time while the MOU is in
effect. Participation will be evidenced by an agency official signature or» the MOU.
VI. Signatures of the Parties of the MOU on Tribal Treaty Rights
See attachments.
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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riL
8/4/2021
Joraaja E. Tannenbaum
Vice Chairman
Advisory Council on Historic Preservation
Mkmorandum of understanding Rm \rding Intkragkncy Coordination and Collaboration
for the Pro 11 a ion or Tribal, Treaty Rights
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MEMORANDUM Ol IM)I RS 1 MA, VKIHNG INTERAGENCY
COORDINATION AND COLLABOR \ HON FOR 1 Sil I'R< > IK' I ION OF TRIBAL TREATY
AM) Ri.SS RYl i> Rl(;il I S
November 2021
. \ I #
j| m< ^ '¦ntgg"
Thomas J. Yilsaek | Date
Secretary
Department of Agrieufffire
MI MORANDl'M OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
C'()I LABORAriON FOR ITif PRODUCTION OF TRIBAL TREATY AND RESERVED RIGHTS
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Secretary
Department of Commerce
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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3-D 2?cxt- ¦Zczt
i i> \.i) \i.-ii4 :'i Date
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Miguel A. Cardona, Ecl.D, Date
Secretary
U.S. Department of Education
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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Department of Homeland Security
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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^ ib : ¦ i: i : ib.'t ' ~
Marcia I.,. Fudee vJ
Marcia L, Fudge Date
Secretary
Department of Housing and Urban Development
Memorandum of Understanding regarding Interagency Coordination and Collaboration
for the Protection of Tribal Treaty Rights
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AUG 0 5 202!
"Deb Haaland
Secretary
Department of the Interior
Memorandum of Understanding Regarding Interagency Coordination and Collaboration
FOR THE PROTECTION OF TRIBAL TREATY RIGHTS AND RESERVED RIGHTS
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2^%
M«2f-
Merrick B. Garland
Attorney General
United Slates Department of Justice
Date
MEMORANDUM OF UNDERSTANDING Rl CiARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PRO I K I ION »)I TRIBAL TREATY AND RESERVED RIGHTS
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10/28/2021
Martin J. Walsh Date
Secretary
U.S. Department of Labor
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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Brian P. McKeon Date
Deputy Secretary of State for Management and Resourc.es
Department of Slate
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND Ri-Sf-RVED RIGHTS
Secretary, Department of Transportation
Fete Ruttigieg
Date; 10/29/2021
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MEMORANDUM Of UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY RIGHTS AND RESERVED RIGHTS
ul'du
~enough Date
Denis McDonough
Secretary
Department of Veterans Affairs
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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's Rppsn ^
August 5, 2021
Michael S. Regan ~ Date
Administrator
U.S. Environmental Protection Agency
MEMORANDUM OF UNO! RSI WDING Rf < .\KtMSu I\riR V.i V > C R \ \ HON AND COLLABORATION
InriHEPROlU l!iA ,'1 i MB M 1 M \ 1 Kit ,|: I s
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/w. 10/16/2021
Kiran Ahuja Date
Director
Office of Personnel Management
MEMORANDUM OF UNDERSTANDING REGARDING INTERAGENCY COORDINATION AND
COLLABORATION FOR THE PROTECTION OF TRIBAL TREATY AND RESERVED RIGHTS
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While House Council on Environmental Quality
Memorandum of Undersi anding Regarding IntjsRAGhni-y Oh>ri>in ation and Collaboration
FOR Till" PROTS'CUOTs OKTRlfW I'RI'ATY RIGHTS
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