U.S. Fish & Wildlife Service Tribal Consultation Handbook Updated October 2018 U.S. Fish & Wildlife Service Tribal Consultation Handbook
December 6, 2011
By: D.J. Monette, Team Leader Kim Greenwood Pat Gonzales-Rogers Patrick Durham
Updated October 2018
By: January Johnson Scott Aikin D.J. Monette
Cover Photo: The Tlingit are Indigenous peoples of the Pacific Northwest Coast of North America. Their name means People of the Tides. (USFWS / Ryan Hagerty) Contents
B.6. National Environmental Policy 38 Preface 1 6.4. Post-Meeting Follow-Up 18 Act (42 U.S.C. 4331) 1. Introduction 2 6.5. Maintaining Consultation 19 Records and Reporting Requirements B.7. Government-to-Government 38 1.1. Background 2 Relations 1.2. Purpose 3 7. Developing Consultation Protocols 20 B.8. Sacred Sites 39 With Tribes 1.3. Objectives 3 B.9. Memorandum for the Heads of 40 7.1. What is a Protocol? 20 Executive Departments and Agencies, Subject: Tribal Consultation 2. Tribes: Their Rights & 4 7.2. Who Should Negotiate the 20 Responsibilities Protocol? B.10. Consultation and Coordination 41 with Indian Tribal Governments 2.1. What is an “Indian Tribe?” 4 7.3. Preparing the Protocol 20 B.11. Tribal Trust Responsibilities 43 2.2. Tribal Sovereignty 4 7.4. Who Should Sign the Protocol? 21 B.12. Tribal Rights, Trust 43 2.3. Federally-Recognized Tribes 5 7.5. Retention and Distribution 21 Responsibilities, and the Endangered Species Act 2.4. Basics of Indian Law 5 of the Signed Protocol B.13. Environmental Justice 43 2.5. What is a Treaty? 5 7.6. Stipulation about Protocols 22 B. 14 U.S. Fish and Wildlife Service’s 45 7.7. Tribal Discretion 22 2.6. Government-to-Government 6 Native American Policy Relationship 8. Other Issues 23 B.15 U.S. Fish and Wildlife Service 59 Director’s memo (Sep. 2, 2008) 3. Cultural Diversity & Awareness 7 8.1. Time Frame for Handling 23 Tribal Interactions B.16 Department of the Interior 61 3.1. What is Culture? 7 Policy on Consultation with Indian 3.2. World View, Culture, and 7 8.2. Costs Associated with 23 Tribes (December 1, 2011) Consultation History B.17. Secretarial Order 3317 DOI 65 3.3. Awareness of and Respect 8 8.3. Budget Circumstances 23 Policy on Consultation with 60 Indian Tribes for Diversity 8.4. Confidentiality 24 B.18 White House Council on 69 4. Consultation 10 9. Conclusion 25 Native American Affairs. (WHCNAA) E.O. 13647 4.1. Consultation: A History and 10 Legal Background 10. Savings 25 Appendix C: Suggested Readings 73
4.2. With Whom Do You Consult? 12 11. Appendices 26 Appendix D: Training 76 Opportunities 4.3. When is Consultation 12 Appendix A. List Of Federally 26 Necessary? Recognized Tribes Appendix E: Sample Letters to 77 Tribe(s) 4.4. Range of Consultation Contexts 13 Appendix B. Legal and Policy 31 E.1. Sample Letter to Tribe(s) 77 Requirements for Consultation 5. Recommended Consultation 14 Seeking Advice on How to Consult B.1. Indian Self-Determination 32 Protocol E.2. Sample Letter to Tribe(s) Inviting 79 and Education Assistance Act Consultation on a Proposed Service (25 U.S.C. 450) 5.1. Protocol—What does it Mean? 14 Action B.2. American Indian Religious 33 5.2. Considerations for Developing 14 E.3. Sample Letter to Tribe(s) Inviting 80 Freedom Act (16 U.S.C. 1996) Protocols with Tribes Consultation Under Section 106 of B.3. Native American Graves 33 the National Historic Preservation 6. Laying The Groundwork: Meeting 15 Protection and Repatriation Act Act on a Service Project With Tribes (25 U.S.C. 3001) Appendix F: Examples of 81 6.1. Pre-Meeting Activities 15 B.4. Archaeological Resources 37 Statement of Relationship Protection Act (16 U.S.C. 470aa) Documents Prepared by Reg. 2, 6.2. Meeting Logistics 17 B.5. National Historic Preservation 37 U.S. FWS 6.3. Meeting Closure/Consensus 18 Act (16 U.S.C. 470) Appendix G: Contact List for 89 Service Native American Liaisons
Preface
Executive Departments and Agencies, This Tribal Consultation Guide has been prepared as a tool for U.S. Fish Subject: Tribal Consultation,” (see and Wildlife Service (Service) employees to effectively communicate Appendix B.9) and the subsequent on a government-to-government basis with federally recognized Native Department of the Interior Tribal Consultation Policy of 2011 (see American and Alaska Native governments (herein referred to as tribal Appendix B.16). Though many of the governments or Tribes). Portions of this guide include information about issues related to consultation and our responsibilities to Native Hawaiian Organizations. maintaining positive government- to-government relationships are, at times, both complex and subtle, they can be understood and met through an application of cultural awareness, sensitivity, and respect. Maintaining positive relations with tribal governments will afford the Service an opportunity to form new relationships and enter into productive partnerships with Tribes, while also assuring that Tribes have knowledge of and access to all Service programs.
This Tribal Consultation Guide was
USFWS/DJ MONETTE compiled utilizing Department of the Interior and Service policy directives, he guide is intended to be flexible As reiterated in the Service’s Native as well as other Federal agency Tand dynamic to adapt to the American Policy (see Appendix consultation guidance and policy changing partnerships between the B.14), the Service has a long history resource information. Service and tribal governments. The of working with tribal governments working relationship between the in managing fish and wildlife Executive Order 13647 established Service and tribal governments is resources on Tribal lands. As quoted the White House Council on Native constantly evolving due to changes in in the Service’s Deputy Director’s American Affairs (WHCNAA). The Federal and tribal administrations, September 2, 2008, memorandum WHCNAA represents a path to a personnel and priorities. Thus, it to the Directorate regarding the more effective federal government is imperative that we develop the Importance of Native American Tribes for Indian Country, bringing together capacity to adapt to each situation and Alaska Natives in Achieving our federal Departments and Agencies according to the trust doctrine and the Conservation Mission…“The Service from across the Executive Branch to consultation requirements that result cannot fully succeed in its mission “break down siloes” and coordinate from this unique relationship with without the help and support of Native for more effective programs. Tribal Tribes. The Service’s relationship American Tribes and Alaska Natives. leaders from each of the now 573 with tribal governments is guided I ask each of you, as the leaders of this federally-recognized Indian Tribes primarily by reserved rights doctrines, agency, to renew your commitment across the country attend the Executive Orders, judicial mandates, to work with tribal governments annual White House Tribal Nations and specific treaties between the and Alaska Natives to help sustain Conference. Each year the President Federal Government our fish and wildlife resources and and his Cabinet officials meet with and tribal governments. the conservation legacy we wish Tribes to discuss Tribal priorities and to leave to future generations.” In to chart the next course of action to These guiding principles apply to addition, this Tribal Consultation address the many needs across Indian all Service employees, who, as part Guide is one of the elements of the Country (see https://www.doi.gov/ of their official duties, participate in Service’s plan in response to the sites/doi.gov/files/uploads/whcnaa_ actions that may potentially impact November 5, 2009, Presidential report_1.2.2017.pdf). tribal governments. “Memorandum for the Heads of
Tribal Consultation Handbook / 1 1. Introduction
information. The Executive Branch It is the goal of the Service to include federally-recognized Tribes in has set forth guidance to ensure that its decision-making process, from initiation to completion, for actions tribal governments are provided that may affect those Tribes or their membership. Consultation, as sufficient opportunity to express their perspectives, concerns, and outlined herein, leads to information exchange, mutual understanding, alternatives to the policies and actions and informed decision-making. To achieve this goal, and to the extent of Executive Branch agencies and practicable and permissible by law, it is essential that the Service and that such information is thoughtfully weighed in the decision making. Tribes engage in open, continuous, and meaningful communication throughout the relationship. On September 23, 2004, a Presidential Memorandum (Appendix B.7) was issued for the Heads of Executive 1.1. Background nations protected by the more Departments and Agencies regarding powerful national government. In the government-to-government ribes have a unique status accordance with these cases, tribal relationship with tribal governments. Tthat entitles them to a special autonomy has been interpreted as This Memorandum reaffirms the government-to-government stemming not from Federal policy but Federal Government’s commitment relationship with the United States from the Tribe’s original, inherent to continuing to work with federally- based on their federally-recognized sovereignty. This tribal autonomy recognized tribal governments on status as sovereign nations, as set is at the core of the federal trust a government-to-government basis forth in the Constitution of the United responsibility. and strongly supports and respects States, treaties, statutes, court tribal self-government and self- decisions, Executive Orders, and Treaties between Tribes and the determination. It further states that memoranda. Federal government diminish this it is critical that all departments and sovereignty only to the extent laid agencies adhere to these principles This unique status is founded upon out in the treaty. Treaties represent and work with tribal governments in a Article 1, Section 8 of the Constitution, an agreement on the part of a Tribe manner that cultivates mutual respect commonly known as the Commerce to cede aboriginal lands and make and fosters greater understanding. Clause. The Commerce Clause peace in exchange for a cessation authorizes the Federal government of hostilities, the provision of some Accordingly, the head of each to regulate commerce with foreign services, and most importantly the executive department and agency governments, between the states and establishment and recognition of is directed to continue to ensure, with Indian Tribes. a reservation homeland free from to the greatest extent practicable incursion of both the State and non- and as permitted by United States There is no legislation or constitutional Indian settlers. Tribes bargained for law, that the working relationship provision that explicitly defines the a piece of their homeland and the with federally-recognized Indian general trust responsibility derived right to continue governing their tribal governments fully respects from the Commerce Clause. However, own affairs. the rights of self-government and the federal trust responsibility has self-determination due to tribal been interpreted and applied in Because of the status of Tribes, the governments. Federal common law. Federal Government has enacted numerous statutes, regulations, On November 6, 2000, the President Cherokee Nation v. Georgia1 and and policies that establish and define issued Executive Order 13175, Worcester v. Georgia, described the a trust relationship with them. “Consultation and Coordination duty of the United States to maintain with Indian Tribal Governments,” a government-to-government Inherent in the government-to- (Appendix B.9) which sets forth relationship with Tribes as “distinct government relationship are the guidelines for all federal agencies to: political communities,” and sovereign presumptions of inclusiveness and of the meaningful exchange of ideas and
1 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1931).
2 / Tribal Consultation Handbook (1) establish regular and meaningful Another purpose of this document is 1.3. Objectives consultation and collaboration to underscore the special relationship with Indian tribal officials in the that the U.S. government has with Objective 1 development of Federal policies that tribal governments throughout Encourage situations where the have tribal implications; (2) strengthen the United States. Each Tribe is a Service and Tribes can enter the United States government-to- distinct legal political entity. Tribes into meaningful partnerships government relationships with Indian are sovereign governments and more and collaborative efforts. Those Tribes; and (3) reduce the imposition than just a member of the public. In interactions are intended to bring of unfunded mandates upon Indian addition, each Tribe has a unique set to Tribes the benefits of Service Tribes. of needs, concerns, and cultural and programs, including opportunities religious interests. to conserve fish, wildlife and their habitats on tribal lands. 1.2. Purpose This document will afford Service staff an understanding on how to he exchange of information between Objective 2 effectively consult and maintain Service and tribal government staff T meaningful government-to- Encourage Service programs and staff can serve many beneficial purposes. government relationships with Tribes. to draw upon the guidance provided However, not all such exchanges As with any partnership endeavor, in this document as they engage in may be regarded as meeting the cultivating and maintaining positive proactive, reactive, and responsive requirements of formal government- tribal relationships will require consultations with tribal governments. to-government consultation. openness, understanding, patience, and flexibility Objective 3 This Tribal Consultation Guide Provide guidance on developing a explains the requisite conditions Most importantly, the purpose of protocol to guide further consultations. of government-to-government this document is to encourage more Protocols honor mutually agreed consultation and provides guidance direct communications and a greater upon processes and procedures to all Service personnel when frequency of interactions between for maintaining a dynamic ongoing government-to-government Service management and staff federal-tribal relationship on a consultation is requested by a tribal and tribal governments and their tribe-by-tribe basis. government, or is necessary pursuant members. to an anticipated Service action.
This document does not set policy but is intended to be used as a reference tool that provides guidance to Service management and staff about conducting consultations, and developing and maintaining positive government-to-government relationships with Tribes. As such, in addition to guidance about consultation, the document presents information about tribal law, general cultural awareness, and conducting meetings with Tribes. Information about Service-related policy guidance also is included, and those materials EPA have been incorporated by reference Cabinet members at the 2013 White House Tribal Nations Conference. into this document.
Tribal Consultation Handbook / 3 2. Tribes: Their Rights & Responsibilities
concerning tribal self-government, Federal tribal policy and federal-tribal relations are topics deeply rooted tribal trust resources, tribal treaties in the history of the political relationship between the United States and and other rights and concerns. Tribes. As such, they touch upon and are influenced by the Constitution, Regarding the sovereignty of Indian treaties, statutes, executive orders, court decisions, and administrative Tribes, Felix S. Cohen surmises, actions. Against this backdrop, a few of the central tenets of federal “Perhaps the most basic principle of Indian law and policy stand out. This section examines some of those all Indian law, supported by a host of decisions, is that those powers which core themes and concepts. The Service’s Tribal Trust Training courses are lawfully vested in an Indian tribe that are held at the national and regional level provide information and are not, in general, delegated powers discussion on this topic as well. A selected reading list addressing the granted by express acts of Congress, but rather inherent powers of a history of federal- tribal policy and federal-tribal relations is provided in limited sovereignty which has never Appendix C, Suggested Reading. been extinguished.” 2
Although Tribes possess many of the 2.1. What is an “Indian Tribe?” rights and powers of sovereignty, these powers have been diminished he term “Indian Tribe” has two as a result of their relationship to the Tcommonly used meanings, based United States. This relationship is on social-cultural and legal-political based on three underlying concepts: concepts. From a sociological or anthropological perspective, an ■■Prior to European contact, Indian “Indian Tribe” is a group of related Tribes inherently possessed all powers of sovereignty. people who share a common social, BIA political, economic, and religious way Department of the Interior Secretary ■■Each Tribe began its relationship of life in a defined geographic space Zinke (middle) welcomed by the Bureau with the United States as a sovereign and speak a common language or of Indian Affairs during his first day as power; however, the powers of dialect. A Tribe in this sense derives Secretary. sovereignty have been limited by its origin from a shared social or treaties and laws. cultural experience. ■■What has not been expressly limited Federal agencies can only engage in The legal-political entities recognized by Congress remains within the formal government-to-government by the federal government are often domain of tribal sovereignty. consultation with Federally-recognized a subset of the Tribes recognized Indian Tribes. by sociologists and anthropologists. Because of their relationship with the Generally, the federal government federal government, Tribes are not has determined tribal status for 2.2. Tribal Sovereignty foreign nations in the international legal and political purposes using the sense of sovereignty. Rather, Tribes powers granted through the Indian overeignty is the power to govern, are characterized as having the status Commerce and Treaty clauses of the Sand Tribes historically have been of domestic-dependent nations. Constitution. recognized as distinct, independent, political communities with the power This means that Tribes are subject Once recognized by the United States, to exercise self-government. The to the legislative authority of the a Tribe exists as a semi-sovereign, right of Tribes to govern themselves United States. For example, Tribes legal-political entity and is entitled is based on a pre-existing sovereignty cannot enter into treaties with to receive services from the federal that has been recognized or foreign nations. It also means that, in government. Congress retains an acknowledged in treaties, statutes, exchange for consenting to enter into authority to diminish a Tribe’s legal- executive orders, and Supreme Court political status. In the event Congress decisions. The United States continues 2 Felix S. Cohen, Handbook of Federal exercises this power, a Tribe would to work with Tribes on a government- Indian Law: 1982 Edition, edited by Rennard still exist as a social and cultural entity. to-government basis to address issues Strickland (Charlottesville VA: The Michie Company, 1982), p. 231.
4 / Tribal Consultation Handbook treaties or agreements, the United 2.4. Basics of Indian Law fishing and gathering rights, both States assumed a fiduciary obligation on and off reservation lands. In and is sometimes required to take ne of the central tenets of Indian exchange for holdings ceded, the certain actions on behalf of Tribes. Olaw is that Federal policy toward United States has promised to provide Native Americans has not been certain services in perpetuity (e.g., This latter principle provides the static. Instead, national policy health services, education, economic basis for the special federal-tribal toward Native Americans has been assistance and protection against relationship, and gives rise to the trust marked by periods of inconsistent crimes and infringements by United responsibility. or contradictory policy shifts. At States citizens). times, Federal policy toward Native Americans has been idealistic The Federal Government extends its 2.3. Federally-Recognized Tribes (i.e., self-determination and self- trust responsibility to some Tribes governance), while at other times, with whom it has never signed a ederal recognition can be derived it has been less than altruistic treaty. For example, the Pueblos from several sources, including a F (i.e., allotment, assimilation, and of New Mexico have never signed treaty, Executive or administrative termination eras). Although marked treaties with the United States, order, legislation, or by custom of by periods of fluctuating policy yet they retain rights to their lands dealing with the federal government. extremes, there are common themes according to the 1848 Treaty of Currently, approximately 573 tribal that have persisted throughout the Guadalupe Hidalgo, signed between governments are recognized by history of federal-tribal relationships. the United States and Mexico. the federal government as having The Service’s Tribal Trust Training a special political relationship with course provides information about After 1871, the United States ceased the United States. These Tribes these themes. signing treaties with Tribes because are eligible to receive the support, of a rider attached to an Indian benefit, and protection of federal appropriations bill abolishing treaty- programs and services, as well 2.5. What is a Treaty? making with Tribes. This was not as the right to government-to- the end of the Federal relations with government consultation regarding treaty is a contract between Tribes, however, because the Federal Federal actions, initiatives and/or sovereign nations. The United A Government entered into formal policy development that may affect States Constitution states that agreements with Tribes that were those Tribes, their membership, or treaties are the supreme law of the either approved by both houses of resources. land and all judges are to be bound Congress or embodied in statutes. by them, State law notwithstanding. Please note, there are Tribes without In other words, States cannot make Over time, the U.S. Supreme Court Federal recognition with which the laws that contradict a treaty nor can has established basic elements of Service fosters relationships. These States make treaties. Prior to the Indian law and treaty interpretation. relationships should not be confused establishment of the United States, These include the following with the special government-to- Great Britain and Spain signed components: government relationship between the treaties with Indian Tribes. The Federal government and federally- United States followed suit in order The trust relationship: Tribes are not recognized Tribes. to obtain legal title to land held by foreign nations but are “domestic, the various Indian nations. dependent nations.” In Cherokee The Bureau of Indian Affairs (BIA) Nation v. Georgia (1831)3, the Court maintains and periodically publishes In treaties between Tribes and the developed the doctrine of Federal the List of Federally-recognized United States, Tribes ceded lands to trusteeship over Indian affairs. In Tribes. The most recent Federal the United States. In addition, Tribes regards to Federal trusteeship, the Register listing is available at: reserved certain rights — rights that United States asserts that it owns
Tribal Consultation Handbook / 5 Government status: Tribes have limited 2.6. Government-to-Government ■■Ensure that appropriate senior sovereign authority and many State Relationship staff are present at initial and, if laws do not apply on reservations needed, follow-up meetings with without the express consent of government-to-government tribal governments. The appropriate Congress. A relationship is a mutual recognition Regional or Washington-Office Native of the authority of the respective American Liaison in the Service Reserved rights doctrine: In signing parties. As such, it is a concept that should also be present, or notified. treaties, the Tribes reserved many draws upon principles of international ■■Understand the Tribe’s political of their inherent rights. These may, law and diplomacy, particularly those structure, including the appropriate and in many cases do, include land, used for establishing and maintaining terms for addressing tribal leaders. hunting and fishing rights over ceded a formal relationship between nations. land, and the right to self-government In order to successfully engage in this ■■Conduct communications in a on the reservation. type of relationship, it is necessary manner that is mindful of tribal for the parties to be respectful of each preferences. Canons of construction: Ambiguities other’s positions as governmental in treaties are to be interpreted as entities. ■■Be sensitive to cultural diversity and the Native Americans would have apply an understanding of cultural understood them at the time of When dealing with Tribes, maintaining awareness. signing. Treaties are to be broadly a meaningful/productive government- ■■Negotiate and develop agreed- construed in determining tribal to-government relationship frequently upon principles and procedures for rights but narrowly interpreted when requires the Federal government conducting interactions, including considering elimination or abrogation (including the Service) to: consultation. of those rights. ■■Avoid paternalism. Congress’ plenary power: Congress can abrogate rights established by treaty or by other documents; such abrogation must be specific.
Treaties do not become obsolete: The Constitution guarantees treaties as “the supreme law of the land.”
A tribal member is only entitled to those rights specifically guaranteed to the particular Tribe in which he or she is enrolled.
6 / Tribal Consultation Handbook 3. Cultural Diversity & Awareness
fenced-in herds to working pens where The Service values the relationships it has developed and maintained the animals are separated and hauled with Tribes. These relationships require understanding, sensitivity, and in trucks to meat packing facilities respect for tribal culture and lifeways. This section of the guide focuses where the bison are slaughtered. on awareness and appreciation of cultural diversity. The following items The meat is then distributed to tribal should be kept in mind: members during certain events and through diabetes prevention programs or other such efforts. ■■Each Tribe is a unique and distinct cultural entity, and Tribes should be Bison for food is integral to the treated as such. culture. How bison meat is obtained, ■■The content of this section does processed and distributed has changed not intend to provide cultural with the disappearance of wild interpretation because tribal cultures roaming herds, introduction of tools, are different and unique in their own and development of additional socio- ways far from what is possible or political institutions. appropriate to describe in this guide. When working with Tribes, remember
■■This information is intended as a USFWS that culture is a dynamic and changing brief look into some general aspects of Alaska Native Affairs Specialist (third process that you need to consider. It tribal cultures. from left) with Alaska Native Tribal elders is variable through time and space. (left and right) and Chugach Regional Each Tribe has its own culture, which ■■Much about working with Tribes Resource Commsission Executive is different from others, and which is involves understanding and respect; Director (far left) at a Alaska Native different than it was 100 years ago. however, there is always more to learn Relations Training session held in about interacting with people from Anchorage, Alaska March 2017. different cultural heritages. 3.2. World View, Culture, ■■For cultural information about any and History particular Tribe, consider talking culture from one generation to the nderstanding the concept of “world to your Regional Native American next. Culture is a complex system of Liaison or the Washington-Office Uview” is a key to appreciating interacting variables that maintain cultural diversity. World view refers Native American Liaison for national a community state of equilibrium programs (Appendix G) or other to a cultural frame of reference. As with its environment. Tribal cultures children grow up in family units within knowledgeable contacts before change with technology as do all other meeting with or engaging a Tribe. particular cultural systems, they cultures. For example, Tribes are not develop a world view—a general way required to continue to use outmoded of experiencing and interpreting the 3.1. What is Culture? technology in order to access social, natural, and spiritual events of traditional resources. life. These ways of experiencing life ulture—the integrated pattern create knowledge and belief systems Cof human behavior that includes An example of changing culture would that people may take for granted, thought, speech, action and artifacts, be how the Plains Tribes adapted never considering that people from and depends upon peoples capacity for in obtaining bison for food. Three other cultural groups may perceive learning and transmitting knowledge hundred years ago, after ceremonies, things differently. to succeeding generations (Webster’s hunting parties would drive portions of New Collegiate Dictionary c1979). bison herds over the edge of cliffs. The Even though we may accept variation women would butcher the animals, and in the attitudes and beliefs among the Culture is a distinctive adaptation the meat would be distributed among individuals of our own cultural group, system used by human beings to deal the tribal members following a set we may not realize that individuals with their environment. Humans of rules. Nowadays, Fish and Game from other cultural groups might see use speech/language to transmit departments or Bison Management life through a totally different but programs use four wheelers to drive equally valid lens. No lens is right or
Tribal Consultation Handbook / 7 wrong, good or bad, and whenever cultural stories, or religious beliefs), Cultivating a relationship with a you are working with any culture, customs (e.g., marriage, inheritance, knowledgeable person is helpful in it is good to look at the situation and subsistence patterns), and history learning the customary and acceptable through their lens. (e.g., prehistoric and contemporary) behaviors of a particular culture. In may provide a more in-depth addition to providing insight into Realizing there are numerous world appreciation and sense of their culture a new culture, such relationships views among Native Americans helps and present day lifeways. are often personally enriching. The in establishing positive relationships following are additional examples with each Tribe and its members. of some of the cultural differences Service employees are encouraged to 3.3. Awareness of and that may be encountered along with foster increased sensitivity to, and a Respect for Diversity some suggested interpretations and working grasp, of the unique cultural, responses. historical, and political aspects of the his section is not intended to specific Tribes with whom they will Tmake gross generalizations about Traditional Beliefs and Wildlife Native Americans or Tribes. It regularly interact in their respective The culture and traditional beliefs regions or field office locations. provides basic information for Service employees who feel they need to of each Tribe are unique and may enhance their effectiveness through differ from yours. When it comes The following is a list of people who to managing fish and wildlife, some may be able to provide information cultural awareness and cross-cultural sensitivity. Tribes have cultural beliefs or about Tribes: practices that may revolve around the species the agency manages. Tribal ■■Tribal elders and traditional Miscommunication between people religious leaders due to differing cultural values members may refer to the “Mother can significantly impede, or even Earth” and fish and wildlife as their ■■Tribal cultural and/or historic spoil, a positive relationship. Such relatives. Also, some wildlife may be preservation personnel errors can arise due to a variety of considered “taboo” or of little interest to the Tribe, which could make ■■Tribal government staff cultural nuances such as: differing perspectives or priorities, unrealistic convincing a Tribe to conserve the ■■Bureau of Indian Affairs employees expectations, language barriers, and a species more difficult. participant’s role in a meeting. These ■■Service Washington Office and Religion in Meetings Regional Native American Liaisons challenges can be met and overcome in several ways. Religious practices are common at ■■Service archaeologists or Historic many cultural events but it is much Preservation Officers Cross-cultural awareness training less common for Service employees for Service personnel in new social to encounter similar practices during ■■Other Federal agency Native work-related meetings or events. American program staff (e.g., EPA, or work environments is helpful USFS, USGS, NPS, etc.) in fostering an understanding of differing value systems and provides Demonstrating appropriate behavior during unfamiliar religious activities Reference Materials a framework for developing cross- cultural relationships. Examples of is important in establishing or Some suggested readings are some training opportunities are listed maintaining a positive relationship. found in Appendix C. Although the in Appendix D. Service often relies upon technical Interest in the meaning or significance information about fish and wildlife- Recognize and be aware that we all of a certain practice is understandable related resources when working with have cultural biases. Seek to reach a and respectfully asking your host a particular Tribe, other sources of common understanding of the issues about it may or may not be acceptable. information are useful for gaining that are being are discussed with a broader understanding of tribal Native American groups. Awareness culture. For example, information of our own beliefs and expectations is about traditions (e.g., oral history, essential when working with cultures and people that have alternative values and perspectives.
8 / Tribal Consultation Handbook English as a Second Language Attorney’s Role Conflict or Anger The use of English or government- Sometimes, Tribes will ask their We cannot reasonably expect that all vernacular may complicate legal counsel to attend meetings with groups will have a positive view of the communicating with some groups. Federal officials. In some cases, these Service. In fact, we may experience Some tribal members or elders attorneys will speak for the Tribe, guilt by association simply because may not speak English as a first and in other cases, they may have a we are employees of the Federal language. Service employees must be much less significant role. Remember, government or because the issue is mindful of their audience’s ability to the legal counsel is representing the controversial in nature. understand them and to be as inclusive interests of its client, and the Tribe as a situation permits. Using an (not the Service) decides their role. Be mindful that when dealing with interpreter may be the best solution in new cultures or organizations, you some situations. Overcoming language In the event that the agency may encounter strong emotions, barriers may be as simple as asking if representative is aware that the Tribe especially early in establishing a a statement was clear, or presentations will be accompanied by counsel, the relationship. may require long pauses so that an agency representative should notify interpreter can translate and explain the appropriate Office of the Solicitor. Recognize that anger and frustration information for non-English-speaking are very real impediments to further participants. Duration of the Meeting meaningful communication and must Understanding and accepting be addressed as early as possible. Humor that other cultures place different It is recommended that Service priorities on the concept of time will An emotional or defensive response employees exercise caution with the go a long way toward establishing can escalate an existing negative use of humor, particularly early in a strong, positive relationship. situation. It is better to listen with the relationship-building process. Generally, Tribes start meetings when sensitivity and attempt to understand everyone arrives, so oftentimes, the the cause of the anger. In doing so, Humor sometimes does not translate meetings may start late. Meetings you may find that your willingness well between people from different conclude when everyone has had an to understand is sufficient to move cultures and can occasionally lead opportunity for input and generally beyond the contention and perhaps to misunderstandings. last several hours. While waiting for even to address your counterpart’s meetings to start, Service employees concerns or perceptions. Being Greeted with Silence may want to interact socially with If you are unable to progress beyond Be mindful that some groups will other meeting participants, make a tense situation, seek an opportunity speak very little at meetings. Always additional meeting preparations, and to state your desire to accept that both assume that they are fully engaged allow adequate time for the meeting so parties agree to disagree and to move in listening, even if they do not you avoid a sense of rushing the Tribe. forward. Or, if that fails, ask what it actively participate in an ongoing is that you might be able to offer in conversation. If you have presented Proper Titles for Delegates order to proceed. your information and have not felt that During official meetings or your audience has fully engaged with correspondence with another As in any hostile situation, if you feel you, announce that your presentation government, it is important that the threatened or under unwarranted has concluded and open the floor to Service address tribal leaders by their personal criticism, you should excuse questions, concerns or comments. In proper titles. Contact your Regional yourself and inform your immediate the case of no response, thank your Native American Liaison or call the supervisor and chain of command of hosts for offering the Service the Tribal Administration Office to obtain the incident. opportunity to meet with them. Ask the proper titles for addressing the if you should remain in the room or if particular tribal leadership that you It may occur that another they prefer that you excuse yourself. plan to meet. representative needs to assume the Sometimes, your counterparts may role of the agency in situations where wish to discuss matters among interpersonal conflicts cannot be themselves before responding. resolved.
Tribal Consultation Handbook / 9 4. Consultation
Appearance Consultation is a term with many meanings, connotations, and If there is any question about what attire is appropriate when expectations. It also is a concept that goes to the heart of federal- meeting with a different culture, tribal governmental interactions. There is no universally agreed-upon either in general or under specific definition for “consultation” throughout the Federal government circumstances, ask someone from that group or a person that has experience but this section will describe several, helpful definitions and explore working with them for guidance. what is meant by consultation.
Proffering of Food and/or Gifts 4.1.Consultation: A History As the President’s constitutionally In some tribal cultures, food and/ and Legal Background authorized designee to lead the or gifts may be offered to guests. To Department of the Interior, the refuse would be considered an insult. onsultation historically has been Secretary of the Interior is within Our ethics rules generally allow Ca core component of the federal- his/her authority to issue Orders as Federal employees to accept food and/ tribal relationship. Its early origins long as they do not contradict the or gifts under certain limits. If you can be found in the treaty-making authorities, expressed in law, for judge the gift to be over the limit, you process, where Federal and tribal the affected agencies and bureaus. may accept such gifts “on behalf of the sovereigns conducted their discourse Service” and they become government on a government-to-government basis. If the President wants to change an property. Gifts that contain parts of The term “consultation” frequently Executive Order or the Secretary regulated species e.g. feathers, pelts, appears in treaties and is used to wants to change a Secretarial Order, or listed plants may be accepted on describe the process of maintaining then he/she has to issue a new Order the behalf of the Service — but not and conducting formal federal-tribal with a new number, and quash the personally. Check with your Ethics communications. More recently, existing Order. Officer for a complete understanding references to a consultation process of these rules or visit the Department with Tribes are found in a variety of The closing paragraph of Executive of the Interior Ethics Office website laws, executive and secretarial orders, Order 13175 states that it is “... page on “Common Ethics Issues” regulations, and policies as a required intended for internal management at, Secretarial Orders may, but do not The President and the Secretary may always address Executive Orders, and exercise their constitutional Executive usually remain in effect for a specified Authority as may be appropriate. USFWS period of time. However, Secretarial Federal agency site visit along the Order 3206 (American Indian These Orders are not optional for Niagara River with natural resource staff Tribal Rights, Federal-Tribal Trust members of the Executive branch. from several Haudenosaunee Nations in Responsibilities, and the Endangered Executive and Secretarial Orders are New York to discuss cultural importance Species Act, for more information, binding on Service employees until of the river. Appendix B.12) is still in effect they are quashed or modified. because there was no expiration date in the Order when it was signed. 10 / Tribal Consultation Handbook Consultation is Not Defined in Points on a Continuum The distance between these two points Federal Statutes or Executive Orders One way to appreciate the mix of on the consultation continuum is at Although the term consultation meanings that are ascribed to the times subtle. It is often shaped by a appears in many laws, there is term consultation is to view it as variety of factors: no concrete definition of tribal a continuum. There is a range of ■■Tribe’s political structure. consultation in any statute or meanings, and all points on the Executive Order. The Department of continuum are essentially correct. Two ■■Tribe’s preferred methods of the Interior Policy on Consultation points on this continuum, however, communication. with Indian Tribes states, stand out as general reference points. ■■Subject matter. “Consultation is a process that aims to create effective collaboration with Consultation with a Capital “C”: This ■■Nature and complexity of the issues. Indian tribes and to inform Federal (big “C” consultation) is formal decision-makers. Consultation is built communication on a government-to- ■■Degree to which the federal-tribal upon government-to-government government basis. It is conducted relationship has developed. exchange of information and between the decision-makers, who promotes enhanced communication are tribal government leaders and Plain Meaning that emphasizes trust, respect, and senior representatives from the In the absence of a statutory shared responsibility. Communication Service. After a relationship has been definition, and in light of tribal will be open and transparent developed, a consultation protocol perceptions, it is necessary to without compromising the rights of may be reached that recognizes turn to the dictionary for a better Indian tribes or the government-to- and sanctions communications understanding of the plain meaning government consultation process.” between federal/tribal designated of the word consultation. According to (Appendix B.17, Section 4.b.). representatives. A key factor the dictionary, consultation is the act of consultation is the Federal of consulting or conferring. To consult Tribal Perspectives and Expectations government’s recognition of a Tribe’s means to ask for advice or to seek an In the broadest sense, the term right to self-govern. opinion—consultation does not mean consultation probably has at least obtaining consent. as many definitions as there are Consultation with a Lowercase “c”: federally-recognized Tribes. Each This (little “c” consultation) is the Depending on the issues, the Tribe has its own view of how it communication that frequently occurs complexity of the consultation prefers to engage in communications between federal-tribal mid-level generally increases in magnitude with the Federal government. management and technical staff at in direct relationship to, or as meetings, telephone contacts, e-mails, consequence of, the number of parties For example, some Tribes only and during on-site visits. Although involved in a particular consultation. recognize consultation between generally not recognized by Tribes Therefore, it is recommended that the high-ranking government officials as consultation on a government- involved parties reach consensus or and tribal governmental leaders, to-government basis, it serves as a an understanding in advance about while other Tribes may be more useful conduit for communication what is considered “consultation” willing to acknowledge and sanction and sharing information, satisfying and how the consultation will be communications between lower certain legal requirements, and conducted. Such arrangements will ranking federal-tribal representatives. developing positive relationships. This help to ensure that both the federal Given this situation, discretion is communication at a lower level may and tribal expectations and interests recommended when talking to Tribes be part of a consultation if it meets the are considered, including a particular about consultation—the speaker negotiated terms (Section 6 and 8) of course of action for maintaining and the listener may have different the consultation between the Service the government-to-government expectations about what is meant by and a Tribe. relationship. consultation and how it should be conducted. Tribal Consultation Handbook / 11 Working Definition: For purposes of this When deciding with whom to consult, 4.3. When is Consultation guide, consultation is: A mutual, open, consider whether consultation would Necessary? and direct two-way communication, be required for actions taken outside conducted in good faith, to secure of tribal lands. For example, Tribes ccording to the Department of the meaningful participation in the that reside in one state may have A Interior Policy on Consultation decision-making process, as allowed ancestral lands in another state. with Indian Tribes (Appendix B.16) by law. “Consultation” protocol must be Consultation may be needed for followed when it is known that a Federal actions on these ancestral 4.2. With Whom Do You Consult? decision about a “Departmental lands. Finding information about Action with Tribal Implications” ancestral lands can be obtained from s a Federal agency, the Service must be made. This includes any your Regional Native American has an obligation to consult with Departmental regulation, rulemaking, A Liaison and other individuals Tribes on issues that may affect Tribes policy, guidance, legislative proposal, knowledgeable about cultural or their resources. This responsibility grant funding formula change, or resources. is based on the unique political operational activity that may have a relationship between the United substantial direct effect on an Indian Additionally, the National Park States and Federally-recognized Tribe, including but not limited to: Service manages the Native American Tribes as set forth in statues, Consultation Database (NACD), which ■■Tribal cultural practices, lands, Executive Orders, Department of the is a tool for identifying consultation and resources; or access to traditional Interior policy, and Service Policy. contacts for Indian Tribes, Alaska areas of cultural or religious Native villages and corporations, importance on federally managed This body of law and policy requires and Native Hawaiian organizations. lands; consultation with one or more of the The database is not a comprehensive following entities: ■■The ability of an Indian Tribe to source of information, but it does govern or provide services to its ■■Federally-recognized tribal provide a starting point for the members; governments consultation process by identifying tribal leaders and NAGPRA contacts. ■■An Indian Tribe’s formal ■■Designated tribal representatives The database is available online relationship with the Department; or at: 12 / Tribal Consultation Handbook Proactive Responsive 4.4. Range of Consultation Consultation is affirmatively initiated Tribes may initiate consultation with Contexts and conducted by the Service in order the Service to learn about Service to build new or better positive working programs, obtain technical assistance, onsultation is a dynamic process relationships with Tribes. This is a or inquire about opportunities for Cthat touches upon a wide variety relatively new approach to federal- partnerships and collaborative efforts. of potential federal-tribal interactions. tribal interactions. It is particularly Regardless of whether a tribal request These interactions can occur in a useful as a means to set the tone for to consult is a formal written letter range of consultation contexts, such future interactions and consultations, or a less formal verbal request, the as consultation with: and to set the stage for partnerships Service should respond. ■■A Tribe about a single issue, and collaborative fish-and-wildlife- Service program, or activity related projects. For example, in An example of responsive consultation August of 2009, the Directorate invited is demonstrated in the Service’s ■■A Tribe about multiple issues, tribal representatives to talk about response to numerous requests from Service programs, or activities how they do landscape conservation so Tribes to discuss law enforcement ■■A Tribe and two or more that the Service can learn from them priorities regarding eagles and Service regions or offices on that subject. interpretation of the Morton Policy. ■■Multiple Tribes This took proactive action on behalf Although the Service has had a long of the agency and was not in response history in working with Tribes, this ■■Multiple Federal agencies and a to a particular agency action or tribal type of consultation may increase single Tribe (Lead agency should request. in frequency as a result of the be identified) implementation of the Department ■■Multiple Federal agencies and Reactive of the Interior Policy on Consultation multiple Tribes (Lead agency should Consultation is required when with Indian Tribes (Appendix B.16). be identified) the Service proposes regulations or policies that may have Tribal A sample letter can be found in Implications such as the planning Appendix E about seeking tribal of projects or activities that advice on how the Service can best potentially may affect trust resources, consult with Tribes regarding Service endangered species, cultural actions and/or policy development that resources, sacred sites, or human may affect a Tribe’s interest. remains. This has been the traditional approach to consultation. For example in 2009, the Federal government expanded the Gulf of Maine Distinct Population Segment for Atlantic salmon to include other rivers in Maine where there were known tribal interests. As a result, the Service and the National Marine Fisheries Service consulted with Tribes in Maine on the agency’s action. Tribal Consultation Handbook / 13 5. Recommended Consultation Protocol Guidance on the Federal/Tribal “Protocol” is a term that is increasingly being used in the context of Government Policy federal-tribal governmental relations. This section focuses on what is The memorandum from the Assistant meant by protocol and examines the recent policy statements that call Secretary—Indian Affairs, dated for its development and implementation. February 24, 1995, provides guidance to assist in the implementation of the President’s government-to- 5.1. Protocol—What does it 5.2. Considerations for Developing government policy. It specifically Mean? Protocols with Tribes recommends that each Department of the Interior bureau should: rotocol is a term that is increasingly ecent Federal policy has embraced ■■Design a special protocol for being used in the context of federal- the use of protocol during federal- P R consultation. tribal governmental relations. This tribal interactions. Federal agencies section focuses on what is meant by are specifically directed to develop ■■Take a proactive approach to protocol and examines the recent protocol for conducting consultations working with tribal governments. policy statements that call for its with Tribes (Appendix B). The development and implementation. following is a brief overview of the Trust Rights, Trust Responsibilities, policies that underlie the need to and the Endangered Species Act Working Definition develop protocol with Tribes: Secretarial Order 3206 (see Appendix For purposes of this guide, protocol B.11) states that the Departments has the following meanings when Government-to-Government of the Interior and Commerce shall used in the context of federal-tribal Relations: The President’s April 29, recognize the importance of tribal interactions: 1994, memorandum on government- self-governance and the protocols to-government relations, reaffirmed of a government-to-government ■■The etiquette used when conducting on September 23, 2004 (Appendix B.7), relationship with Tribes. It also federal-tribal interactions and sets the stage for developing protocol provides guidance about how to communications, with particular with Tribes. The memorandum states conduct consultation and maintain consideration given to applying an that each department and agency is to: meaningful interactions with Tribes. understanding of cultural diversity and awareness, and being respectful ■■Respect tribal autonomy and operate Secretarial Order 3225 supplements of tribal autonomy. within a government-to-government relationship with Federally-recognized Secretarial Order 3206 and establishes ■■Or, it may be an understanding Tribes. a consultation framework relative or document that records mutually to the subsistence exemption for agreed upon principles and procedures ■■Consult to the greatest extent Alaska Natives in Section 10(e) for conducting consultation, fulfilling practicable and to the extent of the Endangered Species Act. trust responsibilities, and maintaining permitted by law. a government-to-government relationship 14 / Tribal Consultation Handbook 6. Laying The Groundwork: Meeting With Tribes It is recommended that the Service This section is directed at the practical aspects of organizing and conduct internal meetings before planning for meetings with tribal governments and groups. Much of the scheduling meetings with tribal guidance also applies to meetings with other entities and in different governments. Use these pre-meetings to identify tribal leaders, clarify contexts. Although government-to-government consultation does not issues, plan the meeting, and learn necessarily require face-to-face meetings with tribal representatives, about the Tribe’s history, culture, and this section only addresses that format. It provides guidance and political structure. The following are some useful planning steps and topics procedures to support Service employees when they meet with Tribes to consider during pre-meetings. and their representatives and enhances our long-term relationships with tribal governments. Evaluate and Identify the Issues Evaluate the information collected so far, collaboratively decide with the 6.1.Pre-Meeting Activities It is important that Headquarters in Tribe the kind and level of meeting Washington, D.C. coordinate national to hold, gaps in information, and a dentify the need for the meeting. A actions to maintain consistency in meeting agenda. When meeting with Iconsultation can be Service-initiated the information provided to our tribal leaders, keep in mind that two or tribally-initiated. For example, the tribal partners. It is also critical different agendas may converge— Service should consult with Tribes as that Regional offices ensure that the Service’s and the Tribe’s. Both early as possible when an action may communications on national issues are agendas must be understood, have tribal implications (Appendix B. provided to the correct tribal contacts respected, and ultimately integrated. 16, p. II). and in the most appropriate manner, Be prepared to be flexible. given the unique circumstances in Service-initiated consultations each Region. Tribe the kind and level of meeting typically begin with a purpose for to hold, gaps in information, and a the meeting expressed to the Tribe(s) A couple of weeks after the letter meeting agenda. When meeting with through a formal letter from the is mailed, Service staff may begin tribal leaders, keep in mind that two decision-maker in the Service to contacting tribal technical staff and different agendas may converge — the tribal leader. managers through telephone calls the Service’s and the Tribe’s. or email to determine their desire to Both agendas must be understood, The Service should strive to provide consult. Although in some cases it may respected, and ultimately integrated. the Tribe at least 30-day notice prior not be possible, the preference is to Be prepared to be flexible. to a consultation meeting being continue contact until a “yes” or “no” scheduled. Although exceptions can decision about consultation is received Identify What You Want to occur, they must be explained in the from the Tribe(s). Sending the formal Accomplish letter. Adequate notice will include letter with no follow up does not meet Consider why the Service is meeting a description of the project/action, the spirit of consultation. After the with the Tribe and what is expected timeline, and possible outcomes first consultation meeting, additional to be accomplished: (Appendix B. 16, p. VII). consultation meetings may occur at appropriate stages throughout the ■■To exchange information, discuss For national issues such as a Policy project or action. ideas, or seek advice. change or new Rule, consultation authority is delegated from the Tribal-initiated consultations may ■■To obtain comments on proposed Director to the Regional Directors. occur through letter, email or phone Service plan(s) or action(s). Assistant Directors support the call. You may request the Tribe ■■Consider the Tribe’s concerns and Region’s consultation responsibilities send its request for consultation in give thoughtful measures that will by providing background materials, written form with anticipated tribal allay of resolve those concerns. subject matter experts, and drafts attendees and agenda items. Requests of letters to Tribal leaders informing for consultation should always be the Tribes of the potential action. responded to and not dismissed arbitrarily. Tribal Consultation Handbook / 15 ■■To reach mutual agreement Service leadership is likely to influence Identification of the type of on processes or procedures for the type of meeting that will occur meeting will help to ensure that the maintaining communication and with the Tribe. appropriate level and type of Service solving problems. staff will attend the meeting. Regardless of who represents ■■To build opportunities for the Service, it is essential to Meeting Format developing partnerships and working use fundamental cross cultural collaboratively. Give consideration to the meeting communication skills including format and the type of relationship respectful listening. Avoid using overly Identify with Whom You Will Meet that has been established, or needs to rapid speech, acronyms and scientific be established, with the Tribe. Identify with whom you will meet and terms. Always consider the use of, or give consideration to their role and have access to, a translator. The format for the initial meeting position in the tribal government, or (or first few meetings) with the Tribe status within the tribal community. The Director has delegated his/her might conform to tribal procedures. consultation authority to Regional Subsequent meetings ideally should Although Tribes are solely responsible Directors, and the Regional Directors conform to the procedures mutually for determining who from the tribal have the authority to delegate agreed upon in the consultation government attends any meeting, consultation to subordinates. protocol outlined by the Tribe and the it is helpful to recommend to the Service. Possible meeting formats tribal government that they have Regional Directors should ensure include: presentation followed by a appropriate tribal technical, cultural, they represent the Fish and Wildlife discussion, listening session, small or resource staff participate. Service and/or Director’s position group “breakout,” question-and- and know the breadth of decision- answer session, or a combination of Assess Who Should Attend the making authority granted to them for these. Meeting consultation. If a Regional Director The Service’s participants may has delegated consultation authority * Keep in mind that it may be include, but are not limited to: to a subordinate, the subordinate extremely difficult to schedule a should ensure they are aware of and meeting with a Tribe and have senior- ■■Director* represent the position of the Service, level staff participation. It will also ■■Assistant Director* Director/Regional Director. depend upon what level of senior Service participation is warranted by ■■Regional Director* Be selective in who participates from the particular Tribe with whom you the Service, and include only those ■■Deputy Regional Director* will meet and the topics involved. people who will have an active role in ■■Assistant Regional Director the consultation or meeting. When Assess the Role of Third-Party going into joint consultations with Participants ■■Washington Office or Regional other Federal agencies, pre-meeting Government-to-government Native American Liaison activities should include discussions consultation is a Federal responsibility. about limiting the number of staff ■■Program Managers, Supervisors, Many times, two or more Federal from Federal agencies to only those Project Leaders, Technical staff agencies are collaborating on a who have an active role as well. ■■Facilitator, if one is needed and particular action appropriate for consultation. Joint consultations agreed to by mutual consent Identify the Type of Meeting can be effective and efficient. It is Determine whether the meeting It may be appropriate for the Director, important for the Federal agencies to is expected to be a formal meeting Assistant Director or Regional discuss beforehand their consultation between senior Service staff and the Director (or their designees) to policies and procedures to develop a tribal leader or the Tribal Council, or attend initial meetings to initiate the protocol that meets the agencies’ and whether it will be an informal meeting consultation process. Participation of Tribe’s requirements. Additionally, between designated Service and tribal it is important to identify the lead technical representatives. federal agency and potential roles and responsibilities of other federal agencies involved. 16 / Tribal Consultation Handbook Non-Federal and non-tribal Selecting the Meeting Site the list is complete and everyone participation in government-to- Most often, government-to- has signed in, copies should be made government consultation should be government consultation is held at available to the attendees. When the avoided unless both the Tribe and the tribal headquarters. Otherwise, meeting is held at a Service location, the Service expressly consent to such non-consultation meetings can be initiate the meeting by providing the participation. held elsewhere with the following attendees with building logistical considerations: select meeting information including an explanation Consider the following questions locations that are reasonably of what to do if an alarm goes off regarding third-party participants accessible to the Tribe, from logistic and the smoking, beverage, food and (e.g., other local governments and and financial perspectives. Selecting restroom arrangements. municipalities, NGOs, environmental meeting locations on or near a firm, or a NIMBY (not in my back reservation may be one approach. Visual Aides yard)) person or people: Consider the usefulness of visual ■■What do they know about the topic? Alternating meeting locations at aids—a map of the project area, Service and tribal offices might be facility plans, diagrams, organizational ■■What is their stake in the meeting? an alternative and equitable solution. and flow charts, etc. Visual Depending upon the issue or action, information is sometimes easier to ■■Who are they politically and socially? consider having some meetings in the absorb than verbal. Be aware of the ■■What is their attitude about the field where Service management and technical capabilities at tribal offices. meeting topic, and toward the Service staff can conduct a site visit with tribal Prior to the day of the meeting, ask if and the Tribe? members. If meeting space will exceed you are allowed to present visual aids the $2,500 micro-purchase limit and and, if allowed, work with the tribal ■■How are they perceived by the must be secured through a contract, technical staff to line up any needed Tribe? be sure to send a purchase request to equipment. Offer to bring and set up ■■Will their actions have impacts on the Contracting Office at least 30 days your own equipment. Refrain from the proceedings? prior to the meeting date. using Service jargon and acronyms in your presentation; it helps to ensure ■■Are all affected groups present, Verbal Presentations that everyone fully understands what and thus all sides of the issue fairly Service participants presenting is being presented. represented? information should make a “good- Media Involvement ■■Who are the decision makers and faith effort” to exchange their ideas, are they present? views, and information at consultation Unless both the Tribe and the Service meetings, freely, openly and tactfully. agree otherwise, no media should Statements made to tribal leaders be present at a government-to- 6.2. Meeting Logistics will be taken seriously and viewed as government consultation. If the media representing the positions of Service will be present at a non-consultation Meeting Approval and the United States government. meeting, or if the Service and the Due to their nature, most Tribal Offer and promise only what can be Tribe expect to be dealing with the consultation meetings will not need delivered. media, consider working with the Departmental pre-approval. Tribe to prepare a joint media handout Attendance Sheet and Building or news release prior to the scheduled However, if the meeting will have Information meeting. If a joint news release is not more than 30 people, with 15 or more Especially during a formal desirable or feasible, either the Tribe participants in travel status where a consultation meeting, it is or the Service, or both, may decide advance registration is required or recommended an attendance or to issue its own. In the absence of an recommended and/or a conference “sign-in” sheet be prepared and agreed-upon media protocol, this is fee is paid, the Department’s made available at the meeting. a discretionary matter for both the Conference Approval guidance must Making contact and establishing good Service and the Tribe. be followed. See Director Dan Ashe’s communication is important. Once memorandum dated Nov. 11, 2011, titled Conference Approval (DTS 049757) or contact your Budget and Finance Office for further guidance. Tribal Consultation Handbook / 17 The Host’s Offer Developing a snapshot assessment During the meeting, the Service Commonly, when Tribes host meetings of the meeting’s outcome is not and the Tribe will normally reach they provide food and beverages for recommended. An initial evaluation agreement about which party guests. If the Service is the host, of the meeting may be different from will be responsible for preparing non-Federal participants would the tribal delegation’s. Further, while and distributing meeting notes or expect appropriate refreshments to some meetings may move quickly to a summaries (in most cases, it will be be provided. Be aware that there is formal consensus, others may require the Service). Agreement should also a prohibition on using Federal funds subsequent discussions and additional be reached about the appropriate for light refreshments. However, meetings. Even if everyone at the Service-Tribal authority to contact certain meetings with Tribes may meeting seems to agree, the process in the follow-up phase. Circulate be eligible for a waiver and Service the Tribe will go through to decide its the meeting notes or summaries for employees should contact their course of action may take additional review and comment to all participants contracting or partnership offices for time. before distributing them as a final more information. If federal funds document. This review will help to ensure that the views and interests are not available to you, speak with 6.4.Post-Meeting Follow-Up experienced meeting planners about of both parties are accurately characterized. When there has alternative ways to be a good host that uestions, and some answers, to be been controversy or a stoppage of are within our regulatory guidance. considered after the meeting, and Q communications after a meeting, the some answers, might include: Service should engage in strategies 6.3. Meeting Closure/ Consensus for reinitiating the consultation. Each How do you know if you have had a situation is unique in terms of the successful meeting? efore leaving the meeting, it causes of the breakdown. Assess each Bis recommended to assess the Success can be measured from several situation and consider which strategies following: levels or aspects. For example, simply make sense. Sometimes, it may mean obtaining a meeting with a particular engaging someone at a higher level ■■Was the agenda covered? Tribe might be considered a success or perhaps involving officials at the ■■Did everyone have the opportunity in one situation. In another, a written Bureau of Indian Affairs. to contribute? agreement might cap a series of negotiations. If there is an opportunity When the Service has the ■■Did everyone understand the issues? to talk informally with someone from responsibility for providing meeting the tribal delegation, ask for his or her ■■Did everyone understand the notes or summaries, consider the process for action? assessment of the meeting. Find out timeframe for expecting a reply from what he or she expects will happen the Tribe. In a letter (or e-mail) to the ■■Did everyone understand what will next. appropriate tribal authority, send the happen next? meeting summary and a reiteration of What if there is a difference of the process and steps for action. ■■Did the participants make any opinion about what happened at the commitments about what will meeting? happen next (i.e., is another meeting In the letter (or e-mail), also state warranted)? the Service’s time frames, processes, ■■Avoid putting off an oral inquiry to or legal constraints, allowing a reconcile this difference. Since oral reasonable time for the Tribe to communication is the preferred means consider and respond to the summary. of information exchange among many Establishing a reasonable length of tribal cultures, expect most contacts to time should involve tribal definitions be face-to-face and, to a lesser degree, and expectations. Ideally, this by telephone or e-mail. timeframe should have been agreed to ■■After oral exchanges send a letter to as part of the meeting’s closure. the Tribal participants’ recapping the Service’s participants understanding of the meeting. 18 / Tribal Consultation Handbook In the absence of an agreement, the The Department of the Interior Service’s good-faith effort should Policy on Consultation with Indian include clear delineation of required Tribes (Appendix B.16) establishes deadlines and procedures. As with methodology accountability all written correspondence to Tribes, and reporting requirements for if a reply is not received within a meaningful consultation. reasonable amount of time, Service employees should follow-up with A Service member of the consultation a telephone call or e-mail to the team for a project/action shall keep designated tribal contact. comprehensive records (i.e., log of consultation events for the project / Generally, a Tribe will consider action’s administration file) which varying perspectives within the Tribe may include, but not be limited to, the before it makes decisions regarding an scope of consultation efforts, the cost issue. Exercise patience and try not of these efforts, and the effectiveness to force issues or expect a response of consultation activities (Appendix prematurely. Affording the Tribe a B. 16, p 4). In addition, keep records reasonable opportunity to respond to of the dates of meetings, attendees each action item of a meeting helps in including senior leadership, topics gaining or reinforcing the Tribe’s trust of discussion, and feedback from the and good will. Tribe(s). The Service may consider 6.5. Maintaining Consultation implementing a post-consultation Records and Reporting review process where it is consistent Requirements with law, regulations, and EO 13175. Any review process shall not limit s soon as the need for consultation the Department’s deliberative Awith an Indian tribal government process privilege regarding internal is identified, a Service representative considerations or any other applicable should be assigned to establish a privilege. permanent record of interactions that are pertinent to, or are the result of the consultation process— including associated costs. The Service representative should be someone who is knowledgeable of the issues at hand and has sufficient access to the involved parties to ensure that documentation is thorough. Tribal Consultation Handbook / 19 7. Developing Consultation Protocols With Tribes For example, a Protocol may be Though not required by the Service, the Service may develop, negotiate developed that acknowledges the or enter into a protocol with a specific Tribe that can used to guide processes and procedures that are all future consultations with that particular Tribe. This section offers currently being used to maintain an established ongoing federal-tribal general guidance for developing consultation Protocols. It is intended relationship. In other instances a to provide a conceptual frame of reference about the intent, content, Protocol may reflect the initial stages and format of such Protocols. of a developing relationship. Background and Preparation Because each Protocol must be 7.1.What is a Protocol? 7.2. Who Should Negotiate developed in collaboration with the the Protocol? Tribe, it is important that Service staff rotocol (usually a written first become knowledgeable about Pdocument–Appendix F) records he Service negotiation team may the Tribe. As a starting point, the mutually agreed-upon principles and Tconsist of the Regional Director, following should be considered: procedures for conducting a federal- Assistant Regional Director, Regional ■■The Tribe’s cultural and historical tribal relationship on a government- Native American Liaison, and Service information to-government basis. As such, it is technical staff. The Regional Office intended to: Native American Liaison should take ■■The Tribe’s political system and the lead responsibility for coordinating governing processes ■■Provide a framework for maintaining the Service’s involvement during a government-to-government ■■The appropriate channels of relationship. negotiation and preparation of the communication identified by the Tribe Protocol. The Washington Office ■■Ensure that appropriate levels of Native American Liaison may be ■■The Tribe’s previous relations with Service leadership interact with the invited to participate as well. the federal government. Tribe’s leadership. Protocol Format ■■Establish procedures and designate 7.3. Preparing the Protocol representatives with authority It is important to note that there for conducting government-to- ach Protocol will be unique and are no set of, or pre-established government consultation. Edesigned to recognize that the requirements regarding a Protocol. individual Tribe entering into the The format and content of the ■■Enhance timely and open lines of Protocol is a separate governmental Protocol should be developed jointly communication. entity with a special relationship by the Service and the Tribe, through negotiation, in a manner that is ■■Clarify expectations and promote with the United States. As such, respectful of their mutual autonomy. the recognition of tribal and Service each Protocol needs to be developed interests. in collaboration with the Tribe and tailored to the specific needs and It is recommended, however, that ■■Build opportunities for developing circumstances of the Service-tribal the Protocol should be structured partnerships and working relationship. The Protocol also needs to resemble either a memorandum collaboratively on fish, wildlife, and to be responsive to the particular of agreement, memorandum of natural resource-related activities. type of relationship that the Tribe understanding, or statement of has developed or is in the process of relationship (Appendix F). Other less developing with the Service. formal formats may be appropriate, depending on tribal preferences and the nature of the federal-tribal relationship. 20 / Tribal Consultation Handbook Protocol Content ■■Concurrence (when practicable) 7.4. Who Should Sign Both the Tribe and the Service should that the Regional Director will meet the Protocol? tailor each Protocol to their specific with the Tribe on a periodic basis relationship. The following are (e.g., annually, every six months, or t is recommended that the Protocol examples of some of the recommended other specified interval) to exchange Idocument be signed by individuals stipulations that may be considered, information, discuss upcoming possessing sufficient delegated negotiated, and included (as projects or activities, and monitor authority to represent their respective appropriate) in the Protocol: the effectiveness of the Protocol. governments. This typically means that the Regional Director (or in some ■■Concurrence on how to resolve ■■Concurrence that the Service and cases, the Director) would sign the disputes (e.g., this may include the the Tribe will maintain a government- document for the Service. to-government relationship. use of alternative dispute resolution processes, third-party mediation, or Tribes would then sign the document ■■Concurrence on the types of issues mediation by the Regional Director or according to their established that will require meetings and Regional Native American Liaison). interactions between the Regional governmental practice. Director (or designee) and the tribal ■■Concurrence on how to amend or modify the Protocol. leader or council. 7.5. Retention and Distribution ■■Concurrence that the Service ■■Concurrence on the time period of the Signed Protocol and the Tribe will designate in which the Protocol will remain in representatives (by position or effect and on the process for ending uplicate original Protocols should title) to serve as points of contact or canceling the Protocol. Other Dbe prepared so that the Service for conducting consultation about stipulations may be included in the and the Tribe each receive an specified types of issues (e.g., policy or Protocol, as appropriate. original copy of the signed document. Because Protocols formalize agreed- rule making, cultural resources, fish ■■Concurrence on the conclusion upon principles and procedures and wildlife or other natural resources, process of a particular Service for maintaining a government- and environmental compliance). consultation should adhere to the to-government relationship, it is following: ■■Concurrence on the appropriate important that the Service retains methods for maintaining effective All Tribes that have participated and maintains a record of these communication (e.g., telephone in the consultation should be notified documents. contact, fax, letter, e-mail, informal of the Service’s decision meetings, and formal meetings). on the particular action. The Regional Office Native American Liaisons will be the responsible ■■Concurrence on the types of The correspondence should be a Service staff for ensuring that proposed Service activities that the formal written communication from original Protocols are retained by the Tribe wants to receive notice about a senior Service official, to the most Regional Offices for their safekeeping and the appropriate methodology for senior Tribal official involved in the and future reference. The Native providing notice. consultation. The correspondence American Liaisons also will have should be sent by mail or delivery ■■Concurrence on the time frame the lead role in coordinating their service and a copy retained for the for responding to oral and written distribution. To maintain a permanent Service official file. communications. Service-wide record about agreements This notification should with Tribes, a copy of each executed ■■Concurrence that the Service and specifically include a discussion of Protocol should be submitted to the the Tribe will exchange information, the Service’s basis for its decision, Washington Office Native American research, and technical assistance. how the final decision was or Liaison. A copy of the Protocol was not able to accommodate document should be provided to Tribal concerns raised during the appropriate Service field offices that consultation process. may have interactions with the Tribe that has entered into the Protocol. ■■Consider having the Protocol reviewed by the DOI Solicitor’s office. Tribal Consultation Handbook / 21 7.6. Stipulation about Protocols If enforceable provisions are desired 7.7. Tribal Discretion to satisfy specific legal responsibilities, tipulation needs to be considered transfer funds, or incur obligations, ribes have the discretion to decide Swhen negotiating and entering into a separate and distinct agreement Twhether they want to negotiate, Protocols: should be entered into to accomplish prepare, and sign a formal Protocol these objectives. Such documents will document. If a Tribe does not want ■■The Protocol document is intended require separate formal legal review to sign a Protocol document, that to improve Service-tribal interactions from the Solicitor’s Agreements. decision is to be respected. Sometimes, by formalizing agreed-upon For the purposes of this Tribal depending on tribal preferences, procedures for conducting consultation Consultation Guide, it is recommended understandings or agreements about and maintaining a government-to- that when understanding or consultation protocol may not result government relationship. It is not agreement documents are being in a formal written document. Should intended to create any additional negotiated or developed, legally that occur, Service employees are rights or responsibilities that may be enforceable provisions should not be encouraged to consider and apply this enforceable against either the Service included. guidance, as appropriate, to establish or the Tribe. Nor is it intended to take with the Tribe a general or informal away any rights. frame of reference for conducting Service-tribal interaction. However, This stipulation is in keeping with the Service staff should keep a written limitations provided in the President’s record, in any case, of what protocol government-to-government the Service has followed as the relationship memorandum, and is consultation proceeds. intended as guidance for implementing that policy: ■■The President’s government-to- government memorandum (Executive Memorandum, Government-to- government Relations with Native American Tribal Governments, April 29, 1994) states that it “is not intended to, and does not, create any right to administrative or judicial review or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.” 22 / Tribal Consultation Handbook 8. Other Issues 8.3. Budget Circumstances This section examines a variety of miscellaneous issues associated with Service-tribal interactions. he Service has the authority Tto consult with Tribes during the preliminary formulation of 8.1. Time Frame for Handling Tribal 8.2. Costs Associated with the agency’s budget, particularly Interactions Consultation with regard to those programs and activities that are for the benefit he time frame for developing he costs associated with the of Tribes. Such consultations Trelationships, conducting TService’s involvement in conducting may be mutually beneficial. They consultations, and negotiating Tribal consultation should be viewed afford the Service an opportunity Protocols with Tribes is largely as a normal cost of doing business and to share information, and they open- ended and will vary on a are a part of our trust responsibilities give the Tribes a chance to learn case-by-case basis. These activities to Tribes. Public hearings or scoping about Service programs, including are frequently time consuming, meetings do not replace government- those activities that Tribes may be particularly when Service-tribal to-government consultation, and it eligible to participate in through relations have not been established or is incumbent upon the Service to be the Self- Determination Act, Tribal maintained. Plan for and anticipate accommodating in meeting with Tribes Self- Governance Act, or collaborative that substantial amounts of time and or their representatives. efforts and partnerships. Ideally, personal involvement may be required these consultations should be to develop relationships that will For national and occasional regional- conducted early enough in the budget lead to productive consultations and level consultations, as an example, formulation process so that Tribes can meaningful Protocols. Patience also is this may include paying for tribal provide meaningful input. necessary, so plan to consult early and travel expenses to a limited number of often. locations, meeting space, and services Although the Service may consult related to the consultation. For most with Tribes about certain items in the Sometimes, before a Tribe can take regional and field-level consultations, budget, there is no mandate requiring an action, approval must be obtained it is also very important to account that Tribes have an opportunity to from the Tribal Council or similar for the added expense of consultation- participate in Service’s budgetary governing body. Often, approvals and related travel for Service personnel. matters. This is different from the decisions are adopted by a Tribe in the process required when the Bureau of form of a resolution. Since a resolution When formulating budgets for Indian Affairs (BIA) formulates its is a formal statement by a tribal future Service actions in which tribal budget with full tribal participation. government, time will be required for consultation is expected—for instance; That type of involvement may create the Tribe to deliberate and advance policy and rule making, ESA activities, an expectation that the other Interior a resolution through the Tribe’s and CCP development, funds for these bureaus conduct their budgetary political process. When planning expenses should be requested in the matters in the same manner as meetings with a tribal government, or budgeting process. the BIA. The Service, however, placing matters before them for their operates under a different set of consideration, attention needs to be Pursuant to Department of the statutory authorities and obligations. given to the schedule that the Tribe Interior’s Policy on Consultation For example, the Service does not has established for their tribal council with Indian Tribes, the Service is have the authority to release the meetings. The interval between also required to report the cost President’s budget to Tribes prior to meetings may range from several of consultation with Tribes. An its release to Congress by the Office of weeks to several months, depending accounting of the value, purpose, and Management and Budget. on the Tribe. source of all consultation expenditures should be kept as part of each consultation record for reporting purposes and as a justification for future budget increase requests. Tribal Consultation Handbook / 23 8.4. Confidentiality When FOIA requests are made for National Historic Preservation Act the disclosure of tribal information, The National Historic Preservation ribes are particularly sensitive Service offices are required under Act provides that a Federal agency Tabout the disclosure of certain Secretarial Order 3206, Principle 5, must withhold from any disclosure, kinds of information about religious to notify and discuss the issue with including Freedom of Information Act practices and sacred sites, traditional the affected Tribe. In the event of a (FOIA), after consultation with the knowledge, intellectual property, FOIA request, three exemptions may Secretary of the Interior, information and cultural resources (Appendix be applicable for withholding tribal about a historic property (i.e., eligible F.3—Confidential and Proprietary information: for National Register of Historic Information Agreement). In order to Places) if the disclosure (16 U.S.C. minimize the likelihood that sensitive Self-Determination Act 470w-3 (a)): material may be released, it is Under the regulations implementing recommended that the Service refrain the Self-Determination Act the ■■May cause a significant invasion of from acquiring sensitive information. following types of information may be privacy. Tribes should be informed that they exempt from FOIA (25 CFR 900.2(d)): ■■Risks harm to the historic resource. should only submit to the Service any information or material that ■■Copies of tribal records that are ■■Impedes the use of a traditional the Tribe is willing to release as clearly required to be maintained as religious site by practitioners. part of the public record. If tribally- part of a DOI bureau’s record keeping sensitive information is discussed or system. Archaeological Resources collected during any consultation, it Protection Act ■■Records of contractors, including is recommended that Service staff archived records. Under the Archaeological Resources consider the following: Protection Act (ARPA) a Federal land ■■Records maintained solely by a ■■Tribal information that has been manager can withhold information Tribe. disclosed or collected should be about the nature and location of any protected to the maximum extent archaeological resource that requires practicable. an ARPA permit or other permission under this act (16 U.S.C. 470hh(a). ■■Service staff should inform Tribes that information obtained from Tribes may become part of the public record and be released as a result of requests made under the Freedom of Information Act (FOIA). ■■Consult your Regional Native American Liaison (or Native American Liaison in the Washington-Office for national programs) or Records Officers if you have questions or would like to discuss how best to protect tribally-sensitive information. USFWS Department of the Interior June 2017 Monument Listening Session for Tribes held in conjunction with the National Congress of American Indians conference at the Mohegan Sun in Connecticut. 24 / Tribal Consultation Handbook 9. Conclusion 10. Savings The intent of this guide is to familiarize Service employees with This Tribal Consultation Guide the concepts of tribal status and their unique status defined by the is not intended to, and does not, government-to-government relationship between Tribes and the United create any right to administrative States carried out through its agencies, including the Service. The or judicial review or any other right guide describes the legal basis for such a relationship, and has offered or benefit or trust responsibility, guidelines on how to achieve such a relationship. The guide also substantive or procedural, provides information on the legal requirements for such a relationship, enforceable by a party against cultural awareness, guidelines for conducting meaningful consultations, the United States, its agencies or development of consultation protocols, tips for conducting meetings instrumentalities, its officers or with Tribes, and tools and principles for developing and maintaining employees, or any other person. positive government-to-government relationships with Tribes Nothing in this Tribal Consultation Guide shall be construed to: Maintaining positive relations and providing open, continuous and (A) diminish or expand the United meaningful communications with tribal governments will enable Service States’ trust responsibility for tribal employees to fully succeed in fulfilling our Trust Responsibility and fish and wildlife resources, or any legal carrying out the mission of the Service. obligation or remedy arising out of the United States’ trust responsibility; (B) alter, abridge, repeal, or affect any valid, existing agreement between an agency of the United States and an Indian tribal government; (C) alter, abridge, diminish, repeal, or affect the reserved rights of any Indian tribal government established by treaty, executive order, or other applicable laws or court decrees. Tribal Consultation Handbook / 25 11. Appendices Galena Village (aka Louden Village) Appendix A. List Of Federally Recognized Tribes Gulkana Village Healy Lake Village Holy Cross Village Five hundred and seventy three Tribes are currently recognized by Hoonah Indian Association the United States government (federally-recognized Tribes). Hughes Village Huslia Village ublished in the Federal Register Indian entities recognized and eligible Hydaburg Cooperative Association Peach year is the list of *Indian to receive services from the United Igiugig Village Entities Recognized and Eligible to States Bureau of Indian Affairs: Inupiat Community of the Arctic Slope Receive Services from the United Alabama Iqurmuit Traditional Council States Bureau of Indian Affairs Ivanof Bay Tribe (published pursuant to Pub. L. Poarch Band of Creek Indians Kaguyak Village 103–454; 108 Stat. 4791, 4792 and Kaktovik Village (aka Barter Island) in exercise of authority established Alaska Kasigluk Traditional Elders Council under 25 U.S.C. 2 and 9 and 209 DM Agdaagux Tribe of King Cove Kenaitze Indian Tribe 8.) The alphabetized list below also Akiachak Native Community Ketchikan Indian Corporation includes the state where the Tribe Akiak Native Community is located and is based on the latest King Island Native Community Alatna Village information published in the Federal King Salmon Tribe Algaaciq Native Village (St. Mary’s) Register which is also located on the Klawock Cooperative Association internet at www.bia.gov/cs/groups/ Allakaket Village Knik Tribe xofa/documents/text/idc2-060708.pdf. Alutiiq Tribe of Old Harbor Kokhanok Village Angoon Community Association Koyukuk Native Village Regional Offices may adjust this list Anvik Village Levelock Village to their particular needs, to provide Arctic Village Lime Village additional information about current Asa’carsarmiut Tribe Tribal contact persons, mailing Manley Hot Springs Village Atqasuk Village (Atkasook) addresses, and telephone numbers, Manokotak Village Beaver Village etc. It should be recognized that Tribal McGrath Native Village interests frequently extend beyond Birch Creek Tribe Mentasta Traditional Council state or regional boundaries. Service Central Council of the Tlingit & Metlakatla Indian Community, employees should contact their Haida Indian Tribes of Alaska Annette Island Reserve Regional Native American Liaison if Chalkyitsik Village Naknek Native Village there are questions about which Tribes Cheesh-Na Tribe Native Village of Afognak have interests in their particular Chevak Native Village Native Village of Akhiok Region. Chickaloon Native Village Native Village of Akutan Chignik Bay Tribal Council This list can change over time because Native Village of Aleknagik Chignik Lake Village there are petitions before the Federal Native Village of Ambler Chilkat Indian Village (Klukwan) government for non- Federally- Native Village of Atka recognized Tribes to become federally Chilkoot Indian Association (Haines) Native Village of Barrow Inupiat Chinik Eskimo Community (Golovin) recognized, or perhaps other Tribes Traditional Government may lose their Federal recognition. Chuloonawick Native Village Native Village of Belkofski Also recognize that several tribal Circle Native Community Native Village of Brevig Mission governments are recognized as single Craig Tribal Association Native Village of Buckland entities and as part of a Joint Council Curyung Tribal Council which can cause the exact number of Native Village of Cantwell Douglas Indian Association “Tribes” to differ depending on who or Native Village of Chenega (aka Chanega) Egegik Village how you ask. Native Village of Chignik Lagoon Eklutna Native Village Native Village of Chitina Emmonak Village Native Village of Chuathbaluk (Russian Evansville Village (aka Bettles Field) Mission, Kuskokwim) 26 / Tribal Consultation Handbook Native Village of Council Native Village of Perryville Organized Village of Saxman Native Village of Deering Native Village of Pilot Point Orutsararmiut Traditional Native Council Native Village of Diomede (aka Inalik) Native Village of Pitka’s Point Oscarville Traditional Village Native Village of Eagle Native Village of Point Hope Pauloff Harbor Village Native Village of Eek Native Village of Point Lay Pedro Bay Village Native Village of Ekuk Native Village of Port Graham Petersburg Indian Association Native Village of Ekwok Native Village of Port Heiden Pilot Station Traditional Village Native Village of Elim Native Village of Port Lions Platinum Traditional Village Native Village of Eyak (Cordova) Native Village of Ruby Portage Creek Village (aka Ohgsenakale) Native Village of False Pass Native Village of Saint Michael Qagan Tayagungin Tribe of Sand Point Village Native Village of Fort Yukon Native Village of Savoonga Qawalangin Tribe of Unalaska Native Village of Gakona Native Village of Scammon Bay Rampart Village Native Village of Gambell Native Village of Selawik Saint George Island Native Village of Georgetown Native Village of Shaktoolik Saint Paul Island Native Village of Goodnews Bay Native Village of Shishmaref Seldovia Village Tribe Native Village of Hamilton Native Village of Shungnak Shageluk Native Village Native Village of Hooper Bay Native Village of Stevens Sitka Tribe of Alaska Native Village of Kanatak Native Village of Tanacross Skagway Village Native Village of Karluk Native Village of Tanana South Naknek Village Native Village of Kiana Native Village of Tatitlek Stebbins Community Association Native Village of Kipnuk Native Village of Tazlina Sun’aq Tribe of Kodiak Native Village of Kivalina Native Village of Teller Takotna Village Native Village of Kluti-Kaah Native Village of Tetlin Tangirnaq Native Village (aka Woody Island) (aka Copper Center) Native Village of Tuntutuliak Telida Village Native Village of Kobuk Native Village of Tununak Traditional Village of Togiak Native Village of Kongiganak Native Village of Tyonek Tuluksak Native Community Native Village of Kotzebue Native Village of Unalakleet Twin Hills Village Native Village of Koyuk Native Village of Unga Ugashik Village Native Village of Kwigillingok Native Village of Venetie Tribal Government Umkumiut Native Village Native Village of Kwinhagak (aka Quinhagak) Native Village of Wales Village of Alakanuk Native Village of Larsen Bay Native Village of White Mountain Village of Anaktuvuk Pass Native Village of Marshall (aka Fortuna Ledge) Nenana Native Association Village of Aniak Native Village of Mary’s Igloo New Koliganek Village Council Village of Atmautluak Native Village of Mekoryuk New Stuyahok Village Village of Bill Moore’s Slough Native Village of Minto Newhalen Village Village of Chefornak Native Village of Nanwalek (aka English Bay) Newtok Village Village of Clarks Point Native Village of Napaimute Nikolai Village Village of Crooked Creek Native Village of Napakiak Ninilchik Village Village of Dot Lake Native Village of Napaskiak Nome Eskimo Community Village of Iliamna Native Village of Nelson Lagoon Nondalton Village Village of Kalskag Native Village of Nightmute Noorvik Native Community Village of Kaltag Native Village of Nikolski Northway Village Village of Kotlik Native Village of Noatak Nulato Village Village of Lower Kalskag Native Village of Nuiqsut (aka Nooiksut) Nunakauyarmiut Tribe Village of Ohogamiut Native Village of Nunam Iqua Organized Village of Grayling (aka Holikachuk) Village of Red Devil Native Village of Nunapitchuk Organized Village of Kake Village of Salamatoff Native Village of Ouzinkie Organized Village of Kasaan Village of Sleetmute Native Village of Paimiut Organized Village of Kwethluk Village of Solomon Tribal Consultation Handbook / 27 Village of Stony River Cachil DeHe Band of Wintun Indians of the Mechoopda Indian Tribe Village of Venetie Colusa Indian Community Mesa Grande Band of Diegueno Mission Village of Wainwright Cahto Indian Tribe of the Laytonville Rancheria Indians Wrangell Cooperative Association Cahuilla Band of Mission Indians Middletown Rancheria of Pomo Indians Yakutat Tlingit Tribe California Valley Miwok Tribe Mooretown Rancheria of Maidu Indians Yupiit of Andreafski Campo Band of Diegueno Mission Indians Morongo Band of Mission Indians Cedarville Rancheria Northfork Rancheria of Mono Indians Arizona Chemehuevi Indian Tribe Pala Band of Luiseno Mission Indians Ak Chin Indian Community Cher-Ae Heights Indian Community of the Paskenta Band of Nomlaki Indians Cocopah Tribe Trinidad Rancheria Pauma Band of Luiseno Mission Indians Colorado River Indian Tribes Chicken Ranch Rancheria of Me-Wuk Indians Pechanga Band of Luiseno Mission Indians Fort McDowell Yavapai Nation Cloverdale Rancheria of Pomo Indians Picayune Rancheria of Chukchansi Indians Fort Mojave Indian Tribe Cold Springs Rancheria of Mono Indians Pinoleville Pomo Nation Gila River Indian Community Cortina Indian Rancheria of Wintun Indians Pit River Tribe Havasupai Tribe Coyote Valley Band of Pomo Indians Potter Valley Tribe Hopi Tribe Death Valley Timbi-Sha Shoshone Band Quartz Valley Indian Community Hualapai Indian Tribe Dry Creek Rancheria of Pomo Indians Ramona Band or Village of Cahuilla Kaibab Band of Paiute Indians Elem Indian Colony of Pomo Indians of the Mission Indians Sulphur Bank Rancheria Navajo Nation Redding Rancheria Elk Valley Rancheria Pascua Yaqui Tribe Redwood Valley Rancheria of Pomo Indians Enterprise Rancheria of Maidu Indians Quechan Tribe Resighini Rancheria Ewiiaapaayp Band of Kumeyaay Indians Salt River Pima-Maricopa Indian Community Rincon Band of Luiseno Mission Indians Federated Indians of Graton Rancheria San Carlos Apache Tribe Robinson Rancheria of Pomo Indians Fort Bidwell Indian Community San Juan Southern Paiute Tribe Round Valley Indian Tribes Fort Independence Indian Community Tohono O’odham Nation San Manuel Band of Mission Indians of Paiute Indians Tonto Apache Tribe San Pasqual Band of Diegueno Mission Greenville Rancheria of Maidu Indians Indians White Mountain Apache Tribe Grindstone Indian Rancheria of Santa Rosa Indian Community Yavapai-Apache Nation Wintun-Wailaki Indians Santa Rosa Band of Cahuilla Indians Yavapai-Prescott Tribe Guidiville Rancheria Santa Ynez Band of Chumash Mission Indians Habematolel Pomo of Upper Lake California Scotts Valley Band of Pomo Indians Hoopa Valley Tribe Agua Caliente Band of Cahuilla Indians Sherwood Valley Rancheria of Pomo Indians Hopland Band of Pomo Indians Alturas Indian Rancheria Shingle Springs Band of Miwok Indians Iipay Nation of Santa Ysabel Augustine Band of Cahuilla Indians Soboba Band of Luiseno Indians Inaja Band of Diegueno Mission Indians Barona Group of Capitan Grande Band Susanville Indian Rancheria Ione Band of Miwok Indians of Mission Indians Sycuan Band of the Kumeyaay Nation Jackson Rancheria of Me-Wuk Indians Bear River Band of the Rohnerville Rancheria Table Mountain Rancheria Jamul Indian Village Berry Creek Rancheria of Maidu Indians Tolowa Dee-Ni’ Nation Karuk Tribe Big Lagoon Rancheria Torres Martinez Desert Cahuilla Indians Kashia Band of Pomo Indians Big Pine Band of Owens Valley Paiute Tule River Indian Tribe Shoshone Indians Koi Nation of Northern California Tuolumne Band of Me-Wuk Indians Big Sandy Rancheria of Mono Indians La Jolla Band of Luiseno Mission Indians Twenty-Nine Palms Band of Mission Indians Big Valley Band of Pomo Indians La Posta Band of Diegueno Mission Indians United Auburn Indian Community Bishop Paiute Tribe Lone Pine Paiute-Shoshone Tribe Utu Utu Gwaitu Paiute Tribe Blue Lake Rancheria Los Coyotes Band of Cahuilla and Viejas (Baron Long) Group of Capitan Grande Bridgeport Paiute Indian Colony Cupeno Indians Band of Mission Indians Buena Vista Rancheria of Me-Wuk Indians Lytton Rancheria Makah Indian Tribe Washoe Tribe of Nevada & California Cabazon Band of Mission Indians Manchester Band of Pomo Indians Manzanita Band of Diegueno Mission Indians Wilton Rancheria 28 / Tribal Consultation Handbook Wiyot Tribe Michigan Nebraska Yocha Dehe Wintun Nation Bay Mills Indian Community Omaha Tribe of Nebraska Yurok Tribe Grand Traverse Band of Ottawa and Chippewa Ponca Tribe of Nebraska Colorado Indians Santee Sioux Nation Hannahville Indian Community Winnebago Tribe of Nebraska Southern Ute Indian Tribe Keweenaw Bay Indian Community Ute Mountain Tribe Lac Vieux Desert Band of Lake Superior Nevada Connecticut Little River Band of Ottawa Indians Duckwater Shoshone Tribe Ely Shoshone Tribe of Nevada Mashantucket Pequot Tribal Nation Little Traverse Bay Bands of Odawa Indians Fort McDermitt Paiute and Shoshone Tribes Mohegan Tribe of Connecticut Match-e-be-nash-she-wish Band of Pottawatomi Indians Las Vegas Tribe of Paiute Indians Florida Nottawaseppi Huron Band of the Potawatomi Lovelock Paiute Tribe Miccosukee Tribe of Indians Pokagon Band of Potawatomi Indians Moapa Band of Paiute Indians Seminole Tribe of Florida Saginaw Chippewa Indian Tribe Paiute-Shoshone Tribe of the Fallon Sault Ste. Marie Tribe of Chippewa Indians Reservation and Colony Idaho Pyramid Lake Paiute Tribe Minnesota Coeur D’Alene Tribe Reno-Sparks Indian Colony Kootenai Tribe of Idaho Bois Forte Band (Nett Lake) of the Minnesota Shoshone-Paiute Tribes of the Duck Valley Chippewa Tribe Nez Perce Tribe Indian Reservation Fond du Lac Band of the Minnesota Summit Lake Paiute Tribe Shoshone-Bannock Tribes Chippewa Tribe Te-Moak Tribe of Western Shoshone Indians Iowa Grand Portage Band of the Minnesota Chippewa Tribe Walker River Paiute Tribe Sac & Fox Tribe of the Mississippi in Iowa Leech Lake Band of the Minnesota Winnemucca Indian Colony Kansas Chippewa Tribe Yerington Paiute Tribe Lower Sioux Indian Community Yomba Shoshone Tribe Iowa Tribe of Kansas and Nebraska Mille Lacs Band of the Minnesota New Mexico Kickapoo Tribe of Indians of Kansas Chippewa Tribe Prairie Band of Potawatomi Nation Minnesota Chippewa Tribe Jicarilla Apache Nation Sac & Fox Nation of Missouri in Kansas Prairie Island Indian Community Mescalero Apache Tribe and Nebraska Red Lake Band of Chippewa Indians Ohkay Owingeh Louisiana Shakopee Mdewakanton Sioux Community Pueblo of Acoma Pueblo of Cochiti Chitimacha Tribe of Louisiana Upper Sioux Community Pueblo of Jemez Coushatta Tribe of Louisiana White Earth Band of the Minnesota Chippewa Tribe Pueblo of Isleta Jena Band of Choctaw Indians Pueblo of Laguna Tunica-Biloxi Indian Tribe Mississippi Pueblo of Nambe Maine Mississippi Band of Choctaw Indians Pueblo of Picuris Aroostook Band of Micmacs Montana Pueblo of Pojoaque Pueblo of San Felipe Houlton Band of Maliseet Indians Assiniboine and Sioux Tribes Pueblo of San Ildefonso Passamaquoddy Tribe (Indian Township) Blackfeet Nation Pueblo of Sandia Passamaquoddy Tribe (Pleasant Point) Chippewa-Cree Indians of Rock Boys Pueblo of Santa Ana Penobscot Nation Confederated Salish & Kootenai Tribes of the Flathead Reservation Pueblo of Santa Clara Massachusetts Crow Tribe Pueblo of Santo Domingo Mashpee Wampanoag Tribe Gros Ventre and the Assiniboine Tribes Pueblo of Taos Wampanoag Tribe of Gay Head (Aquinnah) of Fort Belknap Pueblo of Tesuque Northern Cheyenne Pueblo of Zia Zuni Tribe Tribal Consultation Handbook / 29 New York Sac and Fox Nation of Oklahoma Utah Cayuga Nation Seminole Nation of Oklahoma Cedar Band of Paiutes Oneida Indian Nation of New York Seneca-Cayuga Tribe of Oklahoma Confederated Tribes of the Goshute Onondaga Nation Shawnee Tribe Reservation Saint Regis Mohawk Tribe Thlopthlocco Tribal Town, Oklahoma Indian Peaks Band of Paiutes Seneca Nation of Indians Tonkawa Tribe of Indians of Oklahoma Kanosh Band of Paiutes Shinnecock Indian Nation United Keetoowah Band of Cherokee Indians Koosharem Band of Paiutes in Oklahoma Tonawanda Band of Seneca Indians Northwestern Band of Shoshone Wichita and Affiliated Tribes Nation (Washakie) Tuscarora Nation Wyandotte Nation Shivwits Band of Paiutes North Carolina Oregon Skull Valley Band of Goshute Indians Eastern Band of Cherokee Indians Ute Indian Tribe Burns Paiute Tribe North Dakota Confederated Tribes of the Coos, Lower Virginia Umpqua and Siuslaw Indians Mandan, Hidatsa and Arikara Nation Chickahominy Indian Tribe Confederated Tribes of the Grand Ronde Eastern Chickahominy Tribe Spirit Lake Tribe Community Monacan Indian Nation Turtle Mountain Band of Chippewa Confederated Tribes of Siletz Indians Nansemond Indian Tribe Oklahoma Confederated Tribes of the Umatilla Reservation Pamunkey Indian Tribe Absentee-Shawnee Tribe of Indians Rappahannock Tribe Alabama-Quassarte Tribal Town Confederated Tribes of the Warm Springs Upper Mattaponi Tribe Apache Tribe of Oklahoma Reservation Washington Caddo Nation of Oklahoma Coquille Tribe Cherokee Nation of Oklahoma Cow Creek Band of Umpqua Indians Confederated Tribes of the Chehalis Reservation Cheyenne and Arapaho Tribes Klamath Tribes Confederated Tribes of the Colville Reservation Chickasaw Nation of Oklahoma Rhode Island Confederated Tribes and Bands Choctaw Nation of Oklahoma Narragansett Indian Tribe of the Yakama Nation Citizen Potawatomi Nation Cowlitz Indian Tribe Comanche Nation of Oklahoma South Carolina Hoh Indian Tribe Delaware Nation Catawba Indian Nation Jamestown S’Klallam Tribe Delaware Tribe of Indians Kalispel Indian Community Eastern Shawnee Tribe of Oklahoma South Dakota Lower Elwha Tribal Community Fort Sill Apache Tribe Cheyenne River Sioux Tribe Lummi Tribe of the Lummi Reservation Iowa Tribe of Oklahoma Crow Creek Sioux Tribe Muckleshoot Indian Tribe Kaw Nation Flandreau Santee Sioux Tribe Nisqually Indian Tribe Kialegee Tribal Town Lower Brule Sioux Tribe Nooksack Indian Kickapoo Tribe of Oklahoma Oglala Sioux Tribe Port Gamble Indian Community Kiowa Indian Tribe of Oklahoma Rosebud Sioux Tribe Puyallup Tribe Miami Tribe of Oklahoma Sisseton-Wahpeton Oyate Quapaw Tribe of Indians Modoc Tribe of Oklahoma Standing Rock Sioux Tribe Quileute Tribe Muscogee (Creek) Nation Yankton Sioux Tribe Quinault Tribe Osage Nation Texas Samish Indian Tribe Ottawa Tribe of Oklahoma Sauk-Suiattle Indian Tribe Otoe-Missouria Tribe of Indians Alabama-Coushatta Tribe of Texas Shoalwater Bay Tribe Pawnee Nation of Oklahoma Kickapoo Traditional Tribe of Texas Skokomish Indian Tribe Peoria Tribe of Indians of Oklahoma Ysleta Del Sur Pueblo Snoqualmie Tribe Spokane Tribe Ponca Tribe of Indians of Oklahoma Squaxin Island Tribe 30 / Tribal Consultation Handbook Stillaguamish Tribe authorities and contexts that give rise Suquamish Indian Tribe Appendix B. Legal and to formal and informal Federal-Tribal Swinomish Indians Policy Requirements communications, and the requirements Tulalip Tribes for satisfying those responsibilities. for Consultation A synopsis of each authority is Upper Skagit Indian Tribe presented, and the reader is referred Consultation with Tribes and their Wisconsin to the pertinent sections of either the members is required by a variety United States Code or the Code of Bad River Band of the Lake Superior of statutes, executive orders, and Tribe of Chippewa Indians Federal Regulations for a review of policies. In addition to Native the codified statutory or regulatory Forest County Potawatomi Community American and Alaska Native language. Ho-Chunk Nation governments, several of these legal Lac Courte Oreilles Band of Lake Superior and policy requirements pertain Statutes: The statutory framework Chippewa Indians to Native Hawaiians, and mandate for consultation involves three bodies Lac du Flambeau Band of Lake Superior the same form of consultation with of law pertaining to: Indians, cultural Chippewa Indians Native Hawaiian organizations. resources, and the environment. Menominee Indian Tribe Oneida Tribe of Indians of Wisconsin The following is an overview of Red Cliff Band of Lake Superior the major legal requirements for Chippewa Indians consultation. St. Croix Chippewa Indians The requirements for notification and Sokaogon Chippewa Community consent also are addressed in order to Stockbridge Munsee Community distinguish these closely related topics (Band of Mohicans) from the subject of consultation. This Wyoming section is intended to highlight the Eastern Shoshone Tribe of the Wind River Reservation Northern Arapahoe Tribe of the Wind River Reservation Tribal Consultation Handbook / 31 B.1. Indian Self-Determination and Education Assistance Act (25 U.S.C. 450) The Indian Self-Determination and Title I, Indian Self-Determination: Title A comprehensive internal agency Education Assistance Act (Public I, referred to as the Indian Self- procedures handbook for non- Law 93-638, as amended) establishes Determination Act, gives express construction contracting under Title I a self-determination policy and authority to the Secretaries of the has been developed by a joint Federal- permits federally-recognized Interior and Health and Human Tribal work group. Copies of this Indian Tribes to plan, conduct, and Services to contract with and make handbook, and supplemental guidance, administer programs and services that grants to Indian Tribes and Tribal can be requested through the traditionally have been managed by organizations for planning, conducting, Washington Office (WO) and Regional the Federal government. The Act is or administering programs and Office (RO) Native American Liaisons, organized into six titles: Title I. Indian services (including construction) that or the Department of the Interior. Self Determination, Title II. are funded by the Federal government for the benefit of Indians and because Title IV, Tribal Self-Governance: Title Indian Education Assistance, of their status as Indians. The IV, the Self-Governance Act of 1994, Title III. Tribal Self-Governance regulations implementing this title expands upon the principles found Demonstration Project, repealed establish that: in the Self-Determination Act. by Pub. L. 106-260), Title IV. Under this title, Tribes and specially Self-Governance, Title V. Tribal Self- Consultation is to be maintained designated tribal consortia that wish governance, applicable only to the with tribal governments and tribal to participate must have qualified Indian Health Service, and Title VI organizations about the budget for Self-Governance status through Tribal Self-Governance—Department process related to the relevant the Bureau of Indian Affairs’ Office of Health and Human Services, programs, functions, services, and of Self Governance. Participating Demonstration Project Feasibility activities available. Tribes and consortia receive greater Study). opportunities to actively participate The Indian Self-Determination Act in programs, services, functions, and Although the Service does not requires that either the Bureau activities, or parts thereof (programs) administer qualifying programs or a Tribe provide written notice that are conducted by the Department under Title I, this title provides for within prescribed a time frame of the Interior and to which they are self-determination contracts and and procedure for the following: able to establish a cultural, historic, or grants, and is commonly referred allocation and availability of funds; geographic nexus. Participating Tribes to as the “638 process”—these intent to contract; conflict of interest; can negotiate and enter into Annual types of contracts or grants are tort claims; awarded funds are Funding Agreements to administer primarily with the Bureau of Indian insufficient to complete a contract; certain programs of the Department Affairs and a Tribe. It is important intent to suspend, withhold, or delay and its bureaus. to understand Title I because it payment; intent to terminate a establishes the general framework construction contract for convenience; Questions about self-governance for the consultation process for reassumption of a project; emergency should be directed to the Title IV, and because a Tribe may reassumptions; and appeals. Headquarters and Regional Native present a case for which a Service American Liaisons, or to the Solicitor. program could be eligible under Title I. Title IV is a recent amendment that makes permanent and expands upon the Tribal Self-governance Demonstration Project (Title II). The following examines the consultation requirements under these titles. 32 / Tribal Consultation Handbook B.2. American Indian Religious Freedom Act (16 U.S.C. 1996) In 1978 Congress passed the Although AIRFA does not confer ■■Federal agencies can satisfy the American Indian Religious Freedom special religious rights to Indians, procedures required by AIRFA by Act (AIRFA) which recognizes that courts have held that it does impose including the consideration of Indian Indians have the right to conduct certain procedural requirements: religious concerns in evaluations traditional religious practices, gain and documents completed under the access to sacred sites located on public ■■Federal agencies are required to National Environmental Policy Act. lands, and possess and use sacred learn about and to avoid unnecessary objects. It also directs all Federal interference with traditional Indian See Wilson v. Block, 708 F.2d 735, 747 departments and agencies to evaluate, religious practices. See Crow v. (D.C. Cir. 1983), cert. denied 464 U.S. within one year after passage of Gullett, 541 F.Supp. 785, 793 P.S.D. 1056 (1984). AIRFA, their policies and procedures 1982). in consultation with traditional ■■Federal agencies must evaluate Service programs are recommended Indian religious leaders. AIRFA was their policies and procedures in light to contact your respective Regional amended in 1994 to provide for the of AIRFA’s purpose, and ordinarily or Washington Office Archaeologist traditional use of peyote by Indians should consult with tribal leaders regarding activities that may affect for religious purposes. before approving projects likely to provisions under AIRFA. affect religious practices. B.3. Native American Graves Protection and Repatriation Act (25 U.S.C. 3001) The Native American Graves later, where the remains are not in the ■■When repatriating human remains Protection and Repatriation Act possession or control of the Federal and objects. 25 U.S.C. 3005. (NAGPRA) requires consultation with agency or museum and the objects can Tribes, traditional religious leaders, be identified by a preponderance of the ■■In the preparation of action plans, and lineal descendants of Native evidence as related to specific individuals Memoranda of Understanding, and Americans regarding the treatment or families or to known human remains other compliance related documents, and disposition of specific kinds of or, by a preponderance of the evidence, and at other points in the compliance cultural items, including: as having been removed from a specific process. burial site of an individual culturally The regulations implementing human remains and-”associated affiliated with a particular Indian tribe, NAGPRA establish a procedural funerary objects” which shall mean (see 25 U.S.C. 3001). framework for conducting objects that, as a part of the death rite consultation, providing notice, and or ceremony of a culture, are reasonably Under this Act, consultation is obtaining consent. This framework believed to have been placed with required: is, at times, complex and may present individual human remains either at ■■Prior to the intentional excavation procedural difficulties, particularly if the time of death or later, and both the or removal of Native American human NAGPRA is not considered early in human remains and associated funerary remains and objects. 25 U.S.C. 3002(c). project planning. objects are presently in the possession or control of a Federal agency or ■■In the event of an inadvertent NAGPRA compliance in the Service museum, except that other items discovery of Native American human has been delegated to specific exclusively made for burial purposes remains and objects. 25 U.S.C. cultural resource staff, the Regional or to contain human remains shall 3002(d). Historic Preservation Officer, a be considered as associated funerary ■■ regional NAGPRA coordinator, or objects; and “unassociated funerary During the completion of the archaeologist. Service programs objects” which shall mean objects that, inventory of human remains and should contact their Regional Historic as a part of the death rite or ceremony associated funerary objects, and Preservation Officer (RHPO) or of a culture, are reasonably believed to summary of unassociated funerary NAGPRA coordinator prior to have been placed with individual human objects, sacred objects, and cultural any anticipated ground-disturbing remains either at the time of death or patrimony. 25 U.S.C. 3003 and 3004. activities, or in the case of inadvertent Tribal Consultation Handbook / 33 discovery of human remains or objects Intentional Archeological Excavation ■■In the written notice described; the thought to have been associated with The intentional excavation of planned activity, its general location, them. NAGPRA cultural items with an the basis on which it was determined Archaeological Resource Protection that NAGPRA cultural items may In the case of the discovery of human Act Permit given by the RHPO for any be excavated, and the basis for remains, the first call should be to the archaeological excavation is allowed determining likely custody of those police, the second, to the Regional only if: items. 43 CFR 10.3(c)(1). Historic Preservation Officer. If the ■■In the written notice proposed police determine that the remains ■■The objects are excavated or do not represent a crime, the RHPO removed in accordance with the a time and place for meetings or or regional NAGPRA coordinator requirements of the Archaeological consultation to further consider the will determine whether the remains Resources Protection Act. 43 CFR activity and the proposed treatment are Native American. If the remains 10.3 (b)(1). and disposition of the NAGPRA are not Native American, they are cultural items. 43 CFR 10.3(c)(1). ■■Consultation has been completed, probably archaeological. If they or in the case of Tribal lands, consent ■■Attempted telephone contact if there are Native American, NAGPRA has been obtained from the Tribe. is no response to the written notice comes into play. The RHPO or 43 CFR 10.3(b)(2). within 15 days. 43 CFR 10.3(c) (1). NAGPRA coordinator will determine the affiliation of Native American ■■There is proof of the consultation ■■Consulted with the Tribes. remains through research and or consent. 43 CFR 10.3(b)(4). ■■Following consultation, prepared consultation. The process may require ■■The RHPO has taken reasonable and implemented a written plan of sufficient archaeological field work action 43 CFR 10.3(c)(2). to document the context (date and steps to determine whether a planned activity may result in the excavation of cultural associations) of the remains. Consultation Determination of affiliation requires NAGPRA cultural items. professional anthropological expertise. In the event of intentional excavation Determination of affiliation requires If it appears likely that Native or inadvertent discoveries, the RHPO professional anthropological expertise. American human remains or related or regional NAGPRA coordinator The RHPO or NAGPRA coordinator artifacts will be excavated, the RHPO must consult with known lineal will keep the Regional Native will have followed NAGPRA and an descendants or Indian Tribal officials. American Liaison informed about the action plan will be in place. In order There are separate procedures for the progress of the process and consult to write the action plan, the RHPO or two situations, but in both cases the with the Liaison about contact and regional NAGPRA coordinator will consulting parties may include: have done the following: correspondence. ■■Tribes that have aboriginal lands ■■Provided written notice to Tribes where the planned activity will occur Documentation, correspondence, that are likely to be culturally or where the inadvertent discovery determination of affiliation and notices affiliated with the NAGPRA cultural has been made. 43 CFR 10.5(a)(1). are the responsibility of the RHPO or items. 43 CFR 10.3(c)(1). NAGPRA coordinator. ■■Tribes that are, or are likely to be, ■■Provided written notice to any culturally affiliated with the NAGPRA The following is a synopsis of the present-day Tribe that aboriginally cultural items. 43 CFR 10.5(a)(2). occupied the area of the planned NAGPRA procedures that specifically ■■Tribes that have a demonstrated activity and any other Tribes that are deal with consultation, documentation, cultural relationship with the likely to have a cultural relationship to and notification. It is intended to NAGPRA cultural items. 43 CFR the NAGPRA cultural items. 43 CFR introduce managers and planners to 10.5(a)(3). the complexities of NAGPRA, but is 10.3(c)(1). not enough to enable them to complete the process themselves. 34 / Tribal Consultation Handbook Inadvertent Discoveries The activity may resume 30 days after During the consultation process In the event of a discovery of certifying the receipt of the written the RHPO or regional NAGPRA NAGPRA cultural items or human confirmation of notice, and when all coordinator must provide in writing to remains RHPO or regional NAGPRA of the requirements of NAGPRA and lineal descendants or Tribal officials coordinator will have: other laws have been completed. 43 that are likely to be affiliated with the CFR 10.4(d)(2). NAGPRA items: ■■Ensured that the person making the discovery provided immediate Similar notification procedures apply ■■A list of all Tribes that are being, or telephone notification, with written to discoveries made on tribal lands; have been, consulted. 43 CFR 10.5(c) confirmation to the federal land- however, consent from the Tribe is (1). management agency or, if on tribal required before the cultural items may ■■An indication that additional lands, to the responsible tribal official. be excavated or removed. 43 CFR documentation used to identify 43 CFR 10.4(b). 10.4(e). This means that any activity affiliation will be supplied upon with a Service nexus (e.g., funding ■■If the inadvertent discovery request. 43 CFR 10.5(c)(2). or permitting) requires that the occurred in connection with an RHPO work with the Tribal Historic ongoing activity on federal or tribal The RHPO or regional NAGPRA Preservation Officer (or appropriate lands, seen that the person providing coordinator requests: State Historic Preservation Officer) notice also stopped the activity in the in this process. ■■Name and address of the tribal area of the inadvertent discovery and official that will act as the tribal made reasonable efforts to protect All authorizations (leases and permits) representative during the consultation the NAGPRA cultural items. 43 CFR to carry out activities on Federal lands process. 43 CFR 10.5(d)(1). 10.4(c). must include a requirement for the holder of the authorization to provide Names and appropriate-methods to If the discovery was made on notice in the event of a discovery. contact lineal descendants who should Service lands, the RHPO or regional 43 CFR 10.4(g). be contacted to participate in the NAGPRA coordinator assists the consultation process. 43 CFR 10.5(d) project leader to complete the In the case of inadvertent discoveries, (2). following within three days after the RHPO or regional NAGPRA receipt of the written confirmation ■■Recommendations on how the coordinator starts consultation after of notification: process should be conducted. 43 CFR trying to identify lineal descendants 10.5(d)(3). ■■Certify receipt of the notification. or interested Tribes and provide them 43 CFR 10.4(d)(l)(I). with written notice. 43 CFR 10.5(b) (l). ■■Following consultation, the RHPO The notice must propose a time and or regional NAGPRA coordinator will ■■Take immediate steps to protect the place for meetings or consultation, prepare, approve, and sign a written discovery. 43 CFR 10.4(d)(1)(ii). proposed treatment measures, and plan of action. 43 CFR 10.5(e). ■■ the proposed disposition of NAGPRA The RHPO or regional NAGPRA ■■A copy of the plan must be provided items. 43 CFR 10.5(b)(2). The coordinator will notify the Tribes to the lineal descendants and involved consultation must seek to identify likely to be culturally affiliated with Tribes. the discovery by telephone and with traditional religious leaders who have follow-up written confirmation. 43 special specialized knowledge about ■■The lineal descendants and tribal CFR 10.4(d)(1)(iii). the cultural items. 43 CFR 10.5(b)(3). officials may sign the plan of action. ■■The RHPO or regional NAGPRA ■■Whenever possible, comprehensive coordinator will initiate consultation. agreements should be entered into 43 CFR 10.4(d)(1)(iv). with Indian Tribes. 43 CFR 10.5(f). Tribal Consultation Handbook / 35 The agreements should address all Summaries and Inventories ■■During summary and inventory Federal land managing activities RHPO or regional NAGPRA consultation the RHPO or regional that could result in the intentional coordinator consults with the Tribes NAGPRA coordinator must requests excavation or inadvertent discovery of during the preparation of summaries information about the name and cultural items. of unassociated NAGPRA cultural address of the Tribal official that items and/or inventories of associated will act as the representative during Consultation regarding the agreement NAGPRA cultural items held in consultations, recommendations should lead to the establishment of museums and Federal collections. on how to conduct the consultation standard procedures for carrying process, names and appropriate out the regulatory requirements ■■Consultation about summaries and methods to contact lineal descendants regarding consultation. inventories with lineal descendants, and traditional religious leaders. 43 tribal officials. 43 CFR 10.8(d)(l) and CFR 10.8(d)(4) and 10.9(b)(4). Signed agreements, or correspondence 10.9(b)(1). related to efforts to reach agreements, ■■The RHPO or regional NAGPRA ■■Consultation about summaries and constitute proof that consultation has coordinator also publishes a inventories may be initiated with a been completed. notification of the completion of the letter, but should be followed up by inventory in the Federal Register and telephone or face-to-face dialogue. 43 Custody sent to likely and identified culturally CFR 10.8(d)(2) and 10.9(b)(2). affiliated Tribes. 43 CFR 10.9(e). When transferring custody of NAGPRA cultural items intentionally ■■During summary consultation copies ■■The RHPO or regional NAGPRA excavated or inadvertently discovered of the summary are to be provided coordinator publishes a notice of back to lineal descendants or Tribes, by the RHPO or regional NAGPRA intent to repatriate unassociated and the RHPO or regional NAGPRA coordinator to lineal descendants associated NAGPRA cultural items, coordinator follows these procedures: (when known), tribal officials, and and human remains in the Federal traditional religious leaders. 43 CFR Register. 43 CFR 10.8(f), 43 CFR ■■Publish a notice of the proposed 10.8(d)(3). 10.10(a)(3) and 10.10(b)(b)(2).. disposition in a newspaper of general ■■During inventory consultation circulation in the area where they Repatriation were excavated or discovered and, if the RHPO or regional NAGPRA coordinator provides information applicable, in a newspaper of general ■■Consultation is required for the circulation in the area(s) in which the about the tribes that have been or are, repatriation of associated and Tribes now reside. 43 CFR 10.6(c). being consulted, a description of how unassociated NAGPRA cultural items. the inventory is being conducted, time ■■Publish the notice at least two times, frames for completing the inventory, ■■Consultation is required to at least one week apart. 43 CFR and an indication that additional determine the appropriate place 10.6(c). information will be supplied upon and manner of repatriation. 43 CFR request. 43 CFR 10.9(b)(3). 10.10(d). ■■Delay the transfer of remains or artifacts until at least 30 days after the publication of the second notice in order to allow time for additional claimants to come forward. 43 CFR 10.6(c). 36 / Tribal Consultation Handbook B.4. Archaeological Resources Protection Act (16 U.S.C. 470aa) he Archeological Resources are administered by the RHPO. official. 43 CFR 7.7(a)(1). TProtection Act (ARPA) provides Although ARPA does not specifically a means for protecting archeological require consultation, it does impose a ■■If a Tribe requests a meeting during resources located on public and tribal notification requirement: the 30-day period, a meeting may be lands. This act delimits prohibited held with official tribal representatives activities, establishes civil and ■■Tribes are required to be notified to discuss their interests, including criminal penalties, and creates a before an ARPA permit is issued ways to avoid or mitigate potential permitting process for scientific for actions that could result in harm or destruction. Any adopted archaeological excavations. Permits possible harm to, or destruction of, mitigation measures are to be included may be required prior to excavating sites on public lands having cultural in the permit. 43 CFR 7.7(a)(3). or removing archeological resources or religious importance. 16 U.S.C. 470cc(c) and 43 CFR 7.7(a). ■■In the event that a permit must located on either public (i.e., Service be issued immediately because of an lands) or tribal lands. In the case ■■Notice is to be provided at least imminent threat of loss or destruction of tribal lands, the consent of the 30 days before a permit is issued. of an archeological resource, the 30- Tribe or tribal member owner also 43 CFR 7.7(a). day period is waived. However, Tribes is required prior to the issuance of a are required to be notified after the ■■The notice is to be sent to the tribal permit. In the Service, ARPA permits permit is issued. 43 CFR 7.7(a)(4). leader or other designated tribal B.5. National Historic Preservation Act (16 U.S.C. 470) he National Historic Preservation ■■Properties of traditional religious The regulations implementing NHPA’s TAct (NHPA), as amended, creates and cultural importance to a Tribe may section 106 compliance process also a framework for the preservation be determined to be eligible for the establish procedural requirements of important cultural resources and National Register. 16 U.S.C..470a(d) for conducting consultation with establishes a procedural process (6)(A). Tribes. Compliance with NHPA is for the consideration of the effects administered by the RHPO. See 36 of Federal undertakings on historic ■■Consultation is required with CFR Part 800. properties. The term historic any Tribe that attaches religious property means any prehistoric and cultural significance to historic or historic district, site, building, properties. 16 U.S.C. 470a(d)(6)(B). structure, or object included in or ■■An agency’s preservation related eligible for inclusion in the National activities are to be carried out in Register of Historic Places. NHPA consultation with Tribes. 16 U.S.C. requires Federal agencies to conduct 470h-2(a)(2)(D). consultation with Tribal governments when carrying out preservation and ■■An agency’s procedures for compliance responsibilities: compliance with section 106 are to provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with Tribes, regarding the means by which adverse effects on such properties will be considered. 16 U.S.C. 470h-2(a) (2) (E)(ii). Tribal Consultation Handbook / 37 B.6. National Environmental ■■Affected Tribes are to be invited to ■■When effects take place on a tribal Policy Act (42 U.S.C. 4331) participate in the scoping process. reservation, a Tribe may become a 40 CFR 1501.7(a)(1). cooperating agency by entering into he National Environmental Policy an agreement with the lead agency. ■■During the analysis of environmental Act (NEPA) is a procedural 40 CFR 1508.5. T consequences to a tribal reservation, process that has been established discussions must consider possible to ensure that Federal agencies will The reader is referred to the Service’s conflicts between the proposed action have available and consider detailed NEPA Handbook for additional and the objectives of tribal land use information concerning significant guidance about how the NEPA process plans, policies, and controls. 40 CFR environmental impacts, and that is used to consider Tribal trust assets, 1502.16(c). relevant information will be made sacred sites, and off-reservation available to the public during decision ■■Tribes must be invited to comment effects. making. The regulations implementing on a draft Environmental Impact NEPA require tribal consultation Statement when the effects may occur Executive and Secretarial Orders: and involvement during the NEPA on a reservation. 40 CFR 1503.1(a)(2) The authority underlying executive process. (ii). and secretarial orders is found in a variety of sources, including the ■■Federal agencies are to consult with ■■As part of the public involvement U.S. Constitution, treaties, judicial Tribes early in the NEPA process. process, notice must be provided to decisions, and statutes. 40 CFR 1501.2(d)(2). Tribes when effects may occur on reservations. 40 CFR 1506.6(b)(3)(ii). B.7. Government-to-Government Relations he Presidential Memorandum of ■■Consult to the greatest extent The memorandum from the Assistant TApril 29, 1994, reaffirmed in the practicable and to the extent Secretary—Indian Affairs, dated memorandum issued September permitted by law, with tribal February 24, 1995, provides additional 23, 2004, is the most recent policy governments prior to taking actions guidance regarding the President’s statement about maintaining that affect federally-recognized tribal policy on the government-to- a government-to-government governments. All such consultations government relationships with Indian relationship with tribal governments. are to be open and candid so that all Tribes. The memorandum specifically It directs that executive agency interested parties may evaluate for recommends that each agency design activities that affect tribal rights or themselves the potential impact of a special protocol, and take a proactive trust resources are to be implemented relevant proposals. approach to working with Tribal in a knowledgeable and sensitive governments: manner that is respectful of tribal ■■Assess the impact of agency autonomy. activities on tribal trust resources and ■■Establish and apply processes and assure that tribal government rights procedures that recognize Tribes as Each department and agency is and concerns are considered before separate governments with a special required to: the activities are undertaken. relationship with all federal bureaus and agencies. ■■Remove any procedural ■■Operate within a government- to-government relationship with impediments to working directly and ■■Communicate directly with Tribes. federally-recognized Tribes. effectively with tribal governments on activities that affect trust property or ■■Establish permanent systems for governmental rights of Tribes. communication between bureau management and tribal officials ■■Work cooperatively with other through appropriate channels as agencies to accomplish the goals indicated by tribal officials. established by the President in this memorandum. 38 / Tribal Consultation Handbook B.8. Sacred Sites The developed procedures, where practicable and appropriate, are xecutive Order 13007, dated May 24, to ensure that reasonable notice is E1996, establishes new requirements provided about proposed actions or for the protection and preservation land management policies that may of Indian religious practices. Each restrict future access to or ceremonial federal agency is required to use of, or adversely affect the physical accommodate access to and ceremonial integrity of, sacred sites. use of Indian sacred sites by Indian practitioners, and avoid adversely Each agency is to report to the affecting the physical integrity of such President the procedures implemented sacred sites. or proposed to facilitate consultation with appropriate Tribes and religious ■■Each agency is required to leaders and the expeditious resolution develop and implement procedures of disputes relating to agency action in compliance with the Presidential on Federal lands that may adversely memorandum of April 29, 1994, affect access to, ceremonial use of, or “Government-to-Government the physical integrity of sacred sites. Relations with Native American Tribal Governments,” including consultation with tribal governments. Tribal Consultation Handbook / 39 B.9. Memorandum for the Heads of Executive Departments and Agencies, Subject: Tribal Consultation n November 5, 2009, while meeting with delegations of Federally-recognized Tribes in a government-to-government Iconsultation with President Obama and members of his Cabinet, President Obama signed the following memo, directing departments to develop plans of action for consultation with Tribes. THE WHITE HOUSE Office of the Press Secretary For Immediate Release November 5, 2009 MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES SUBJECT: Tribal Consultation The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes. History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship. My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its plan. Each agency’s plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175. In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on more (OVER) 2 the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report. The terms “Indian tribe,” “tribal officials,” and “policies that have tribal implications” as used in this memorandum are as defined in Executive Order 13175. The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms. BARACK OBAMA 40 / Tribal Consultation Handbook B.10. Consultation and Sec. 2. Fundamental Principles 3. In determining whether to establish Coordination with Indian Tribal Fundamental principles are provided Federal standards, consult with tribal Governments to guide agencies when formulating or officials as to the need for Federal implementing policies that have tribal standards and any alternatives that n November 6, 2000, President implications. The principles affirm would limit the scope of Federal IClinton signed Executive Order (EO) the unique legal relationship that standards or otherwise preserve the 13175, Consultation and Coordination Tribes have with the United States, prerogatives and authority of Tribes. with Indian Tribal Governments. This including the trust relationship. They Sec. 3(c). EO builds on previous administrative also recognize the right of Tribes to actions and is intended to: self-government and provide support Sec. 4. Special Requirements for for tribal autonomy and Legislative Proposals ■■Establish regular and meaningful self-determination. Agencies are prohibited from consultation and collaboration with submitting legislation to Congress Tribal officials in the de he imposition Sec. 3. Policymaking Criteria that would be inconsistent with the of unfunded mandates upon Tribes. Agencies are required to: policymaking criteria in Sec. 3. For purposes of EO 13175, “policies ■■Adhere to the fundamental Sec. 5. Consultation that have tribal implications” refers principles (Sec. 2) and the EO’s to regulations, legislative comments Each agency is required to have policymaking criteria, to the extent an accountability process to ensure or proposed legislation, and other permitted by law, when formulating policy statements or actions that meaningful and timely input by and implementing policies that have tribal officials in the development of have substantial direct effects on one tribal implications. or more Tribes, on the relationship regulatory policies that have tribal between the Federal government and ■■Respect tribal self-government and implications: autonomy, honor tribal treaty and Tribes, or on the distribution of power ■■Within 30 days after the effective and responsibilities between the other rights, and strive to meet the date of the EO, the agency head is Federal government and Tribes. responsibilities that arise from the required to designate an agency unique legal relationship between official with principal responsibility This EO revokes EO 13084 the Federal government and tribal for the agency’s implementation of (Consultation and Coordination with governments. Sec. 3 (a). the EO. Sec. 5(a). Indian Tribal Governments, issued on ■■Grant tribal governments the May 14, 1998). The new EO modifies ■■Within 60 days after the effective maximum administration discretion and expands many of the concepts date of the EO, the responsible agency possible with respect to Federal and procedures found in the 1998 official is required to submit to the statutes and regulations administered EO on Consultation and Coordination Office of Management and Budget by tribal governments. Sec. 3(b). with Indian Tribal Governments (OMB) a description of the agency’s (EO 13084). Its format and procedural consultation process. Sec. 5(a). When undertaking to formulate and requirements generally parallel the implement policies that have Tribal EO on Federalism (EO 13132), dated Regulations that impose unfunded implications, agencies are required to: August 4, 1999. The following is a mandates are prohibited. Sec. 5(b). To section-by-section analysis of the the extent practicable and permitted 1. Encourage Tribes to develop their new EO: by law, agencies are prohibited from own policies to achieve program promulgating any regulation that has objectives; Sec. I. Definitions tribal implications, imposes substantial direct compliance costs on tribal Definitions are added for “policies that 2. Where possible, defer to Tribes governments, and is not required by have tribal implications” (see above) to establish standards; and statute unless: and “tribal officials.” The latter means “elected or duly appointed officials ■■Funds are provided by the Federal of tribal governments or authorized government to pay the direct costs inter- tribal organizations.” incurred by the Tribal government or the Tribe in complying with the regulation; or Tribal Consultation Handbook / 41 ■■The agency, prior to the formal ■■In a separately identified portion To the extent practicable and promulgation of the regulation, has: of the preamble to the regulation permitted by law, agencies are as it is to be issued in the Federal required to render a decision about ■■Consulted with tribal officials early Register, provides the Director of an application for a waiver within 120 in the process of developing the OMB with a tribal summary impact days after receipt of an application, proposed regulation; statement (a description of the extent or as otherwise provided by law or ■■In a separately identified portion of the agency’s tribal consultation, a regulation. If a waiver is not granted, of the preamble to the regulation summary of the nature of the Tribe’s timely written notice of the decision as it is to be issued in the Federal concerns and the agency’s position and the reasons therefore must be Register, provides the Director of supporting the need to issue the provided. Sec. 6(c). OMB with a tribal summary impact regulations, and a statement of the statement (a description of the extent extent to which the concerns of tribal This section applies only to statutory of the agency’s Tribal consultation, a officials have been met); and or regulatory requirements that are summary of the nature of the Tribe’s discretionary and subject to a waiver ■■Makes available to the Director of by the agency. Sec. 6(d). concerns and the agency’s position OMB any written communications supporting the need to issue the submitted to the agency by tribal Sec. 7. Accountability regulations, and a statement of the officials. extent to which the concerns of Tribal When final draft regulations having officials have been met); and Agencies are encouraged to explore tribal implications are transmitted to OMB, agencies are required ■■Makes available to the Director of and where appropriate, use a to include a certification from the OMB any written communications consensual mechanism for developing official designated with compliance submitted to the agency by tribal regulations, including negotiated responsibility for the EO, stating officials. rulemaking, on issues relating to tribal self-government, tribal trust that the requirements of the EO have been met in a meaningful and timely Regulations that preempt tribal resources, or tribal treaty or other manner. Sec. 7(a). law are prohibited. Sec. 5(c). To the rights. Sec. 5(d). extent practicable and permitted by When transmitting proposed law, agencies are prohibited from Sec. 6. Increasing Flexibility for legislation that has tribal implications promulgating any regulation that Indian Tribal Waivers to OMB, agencies are required has tribal implications that preempts Agencies are required to review the to include a certification from the Tribal law unless: process under which Tribes apply for official designated with compliance waivers of statutory and regulatory ■■The agency, prior to the formal responsibility for the EO, stating that requirements and take appropriate promulgation of the regulation, all relevant requirements of the E0 steps to streamline those procedures. consulted with tribal officials early in have been met. Sec. 7(b). Sec. 6(a). the process of developing the proposed regulation; To the extent practicable and permitted by law, agencies are required to consider any application by a Tribe for a waiver of statutory or regulatory requirements with a general view toward increasing opportunities for using flexible approaches when a proposed-waiver is consistent with applicable Federal policy objectives and is otherwise appropriate. Sec. 6(b). 42 / Tribal Consultation Handbook B.11. Tribal Trust Responsibilities he Department Manual Part 512, Federally-recognized Tribes and tribal All consultations are to be conducted TChapter 2, articulates the policy, members, and to consult with Tribes in an open and candid manner responsibilities, and procedures for on a government-to-government basis respectful of the special relationship consulting with Tribes to identify whenever plans or actions affect tribal enjoyed by the Federal government and assess impacts to tribal trust trust resources, trust assets, or tribal and recognized Tribes, so that all resources (originally issued as health or safety. interested parties may evaluate for Secretarial Order 3175, dated themselves the potential impact of the November 8, 1993): Heads of bureaus and offices are proposal on trust resources. responsible for assessing impacts to It is the policy of the Department of trust resources and for consulting the Interior to recognize and fulfill its with the recognized tribal government legal obligations to identify, protect, whose trust assets are potentially and conserve the trust resources of affected. B.12. Tribal Rights, Trust Responsibilities, and the Endangered Species Act n June 5, 1997, the Secretaries of the Working Relationships: The order of tribal rights, or Indian lands, they IInterior and Commerce jointly issued establishes a policy framework are to consult with and seek the Secretarial Order 3206 (American for establishing and maintaining participation of the affected Tribes to Indian Tribal Rights, Federal-Tribal effective working relationships and the maximum extent practicable. Trust Responsibilities, and the mutual partnerships to promote the Endangered Species Act). conservation of sensitive species ■■The Tribes are to be afforded (including candidate, proposed listed adequate opportunities to participate This order provides guidance about and listed species) and the health of in data collection, consensus seeking, the federal- tribal relationship, and ecosystems on which they depend. and associated processes. its relationship to tribal rights, trust PRINCIPLE 2 responsibilities, and the Endangered Such relationships are intended to Species Act: focus on: Recognize that tribal lands are not subject to the same controls as federal ■■It clarifies responsibilities when ■■Cooperative assistance public lands. action is taken under the Endangered ■■Consultation Species Act effect (or may effect) PRINCIPLE 3 Indian lands, tribal trust resources, or ■■Sharing information Assist Tribes in developing and the exercise of Indian tribal rights. expanding tribal programs so that ■■Creating government-to- healthy ecosystems are promoted ■■It further acknowledges the trust government partnerships responsibility and treaty obligations of and conservation restrictions are unnecessary. the United States toward Tribes and Guiding Principles Tribal members, and the government- The order articulates a set of ■■Tribal management of tribal lands to-government relationship in dealing principles that are to be followed: and tribal trust resources is to be with Tribes. respected. PRINCIPLE I ■■It directs that the responsibilities ■■Government-to-government under the Endangered Species Act Work directly with Tribes on a consultations are to be conducted are to be carried out in a manner that government-to-government basis to to discuss the extent to which tribal harmonizes trust responsibilities, promote healthy ecosystems. resource management plans for tribal tribal limited sovereignty, statutory ■■Whenever agencies and offices are trust resources located outside of missions, and strives to ensure that aware that actions planned under the tribal lands can be incorporated into Tribes do not bear a disproportionate Endangered Species Act may impact actions that address the conservation burden for the conservation of listed tribal trust resources, the exercise needs of listed species. species. Tribal Consultation Handbook / 43 ■■In the event that it is determined to protect sensitive tribal information Federal-tribal disputes regarding that conservation restrictions are from disclosure. implementation of the order are to necessary in order to protect listed be addressed through government- species, consult with the affected ■■Recognize the critical need for to-government discourse, using Tribes and provide written notice Tribes to possess complete and alternative dispute resolution about intended restriction as far in accurate information related to tribal processes to resolve conflicts about advance as practicable. lands and trust resources. technical and policy issues. ■■Make available to Tribes all ■■If the proposed conservation Note: Secretarial Order 3225 (Endangered restriction is directed at a tribal information that is related to tribal Species Act and Subsistence Uses in activity that could raise the potential lands and trust resources. Alaska—Supplement to Secretarial Order issue of a direct take under the ■■Protect, to the maximum extent 3206)—Principal 5, section 7 of Secretarial Endangered Species Act, meaningful practicable, v information that has Order 3206 recognizes that section government-to-government been disclosed or collected. 10(e) of the Endangered Species Act consultation is required in order to governs the taking of listed species strive to harmonize the federal trust ■■Promptly notify and, when appropriate, consult with affected by Alaska Natives for subsistence responsibility, tribal autonomy, and the purposes and therefore exempts agency’s statutory mission. Tribes regarding all requests for tribal information. Alaska from application of Secretarial Order 3206. Secretarial Order 3225, PRINCIPLE 4 Agreements: When appropriate, and at signed January 19, 2001, supplements Be sensitive to Indian culture, religion, Secretarial Order 3206 by: and spirituality. the request of a Tribe, federal-tribal inter-governmental agreements may ■■a. Defining the application of ■■Take into consideration the impacts be pursued in order to formalize Secretarial Order No. 3206 in Alaska of actions and policies under the agreed on arrangements about Endangered Species Act, regarding sensitive species, such as: ■■b. Establishing a consultation tribal use of listed species for cultural framework relative to the subsistence and religious purposes. ■■Land and resource management exemption in Sec. 10(e) of the ■■Multi-jurisdictional partnerships Endangered Species Act (ESA). PRINCIPLE 5 ■■c. Reiterating the government-to- Make available to Tribes information Dispute Resolution: The order also government consultation requirements related to tribal trust resources and encourages the use of alternative relative to overall implementation of tribal lands, facilitate the mutual dispute resolutions. the ESA in Alaska. exchange of information, and strive Multi-federal agency meeting with Tribes to discuss ongoing activities potentially affecting their interest. USFWS 44 / Tribal Consultation Handbook B.13. Environmental Justice he Environmental Justice program, The Service considers environmental Testablished by Presidential justice issues through implementation Executive Order 12898 (Federal of the National Environmental Policy Actions to Address Environmental Act, the law that requires Federal Justice in Minority Populations agencies to consider the interests and Low-Income Populations), of under-represented communities requires Federal agencies, including when making decisions. The Service’s the Service, to ensure that all National Environmental Justice environmental policies and the Coordinator works with regional disposal of toxic waste do not contacts to disseminate information adversely impact minority and low- regarding EJ issues and offers income communities, including Tribes. training through the NEPA course USFWS The common concern is that these offered by the National Conservation Multi-federal agency meeting with Tribes communities are exposed to unfair Training Center. For more to discuss potential cultural impacts at levels of environmental risk arising information, contact Kim Lambert, a hydro-electric power intact on a major from multiple sources, often coupled the Service’s Environmental Justice river. with inadequate government response. Coordinator, (703) 358-2554. B.14. U.S. Fish and Wildlife Service’s Native American Policy 1. Introduction and Purpose that we can work together to improve The Service’s engagement with and This updated Native American and enhance conservation of fish and responsibilities to tribes are guided policy (policy) provides a framework wildlife resources and shared natural primarily by doctrines of reserved for government-to-government and cultural resource goals and rights, statutes, treaties, judicial relationships, which furthers the objectives. mandates, Executive Orders (E.O.), United States’ and the Department of Presidential proclamations, and the Interior’s trust responsibility to We recognize that Service-tribal Secretary’s Orders (S.O.). The policy federally recognized tribes to protect, relationships will evolve and adapt provides clarification of the application conserve, and use tribal reserved, as needed and as is consistent with of those authorities to guide the treaty guaranteed, or statutorily Federal policy supporting tribal Service’s efforts. identified resources. The U.S. Fish sovereignty and self-determination. and Wildlife Service (Service) and The United States’ trust responsibility representatives from tribes across the We will work to enhance both our is a well-established legal obligation country worked together to update relationships with tribal governments that originates from the unique, the policy. The policy articulates the and our value to them by improving historical relationship between the principles for interactions between communication and cooperation, United States and Indian tribes. The the Service and tribal governments providing technical expertise, and trust responsibility consists of the as they relate to shared interests in sharing training and assistance. highest moral obligations that the the conservation of fish, wildlife, and We acknowledge and respect the United States must meet to ensure their habitats, which include Service diverse Native American religious, the protection of tribal and individual lands and the protection of cultural spiritual, and cultural identities, and Indian lands, assets, resources, and resources that exist on Service lands. their understanding of ecosystems treaty and similarly recognized rights The Service and tribal governments and cultural resources. We will (see S.O. 3335). recognize the need for strong, healthy listen to and consider the traditional communication and relationships so knowledge, experience, and perspectives of Native American people to manage fish, wildlife, and cultural resources. Tribal Consultation Handbook / 45 The policy establishes a consistent Governments. Tribal governments and cultural departments will framework nationwide, yet remains exercise sovereign powers over their work together. For joint initiatives flexible to reflect regional and local members and territory. The United or frequent interactions, we may variations in history, knowledge States works on a government- enter into agreements with tribal systems, applicable laws, treaties, to-government basis with tribes governments that are mutually agreed and Service-tribal relationships. to address issues concerning self- upon, developed by both parties, governance, tribal trust resources, and and that clearly identify the roles, The policy applies to all Service Indian tribal treaty and other rights. responsibilities, and obligations of employees who have official duties This policy is consistent with the the Service and tribal government(s). that may affect tribal interests. Department of the Interior’s Policy on Both our employees and those of tribal Consultation with Indian Tribes, and governments will continue to follow While this national policy applies to is adopted in the spirit of the United protocols in existing agreements. The all the federally recognized tribes, Nations Declaration on the Rights Service will hold regular, periodic including tribes in Alaska, we plan of Indigenous Peoples with respect meetings with tribal representatives. to develop a subsequent chapter in to federally recognized tribes. We the Fish and Wildlife Service Manual maintain government-to-government We will communicate on matters that will address further statutory relationships with tribal governments affecting the rights and interests of considerations for Alaska, including by working directly with those tribal governments in accordance consultation for Alaska Native Claims governments, observing legislative with the Department’s Policy on Settlement Act (ANC) corporations. mandates and trust responsibilities, Consultation with Indian Tribes and considering Native American and Alaska Native Corporations, For definitions of terminology we use cultural values whenever we develop 512 DM 4. in this policy, see Exhibit 1. For overall policies, plan projects, and implement responsibilities, see Exhibit 2, and for programs that affect tribal interests. We will work in a timely manner with the authorities for the policy, see the We will designate formal points of affected tribe(s) when we are revising list in Exhibit 3. contact and rely on tribal governments or developing policies, programs, or to identify formal contacts to actions that may affect a tribe or its 2. Sovereignty and Government to represent them in government-to- legally recognized rights or resources. Government Relations government interactions. We will The tribal consultation process goes The U.S. Government’s legal and trust consult with inter-tribal organizations beyond the requirements of a public relationship with tribal governments to the degree that tribes have comment period. For details on tribal as set forth in the Constitution, authorized such an organization to consultation procedures, see the U.S. treaties, statutes, E.O.s, and court consult on the tribe’s behalf. Fish and Wildlife Service Tribal decisions, serves as the foundation for Consultation Handbook. our interactions with tribes. For the 3. Communications and Relationships Service’s purposes, the special Federal Effective communication with INFORMATION SHARING AND TRIBAL KNOWLEDGE Indian trust responsibility involves tribal governments includes our obligation to exercise due care acknowledgment, open and We will use the best available scientific where our actions affect the exercise transparent dialogue, and and commercial data and solicit and of tribal rights. interpersonal interactions that depend consider information, traditional on mutual respect and understanding. knowledge, and expertise of affected The United States recognizes the right tribal governments in policies, agency of tribal governments to self-govern Communications with tribal actions, and determinations that have and supports tribal sovereignty and governments will be proactive, begin tribal implications. self-determination in accordance early in the planning process, and with E.O. 13175, Consultation and occur throughout various levels of our While Service and tribal personnel Coordination with Indian Tribal organization. may share information through working collaboratively, the Service While we use formal government- also will give tribal government to-government communications, representatives access to technical we also encourage day-to-day staff information when it is final and level discourse. In many situations, releasable. Service and tribal fish and wildlife 46 / Tribal Consultation Handbook The Service may identify other managers to manage and conserve fish when it involves evaluating trends in agencies that could provide technical and wildlife and cultural resources. species and environmental conditions. information. For the entire range of Endangered INDIAN LANDS We will not share or release Species Act (ESA) activities, The Service recognizes that Indian information we obtain from tribes including, but not limited to, candidate lands are not Federal public lands and without the explicit consent of the conservation, the listing process, that, in general, tribal governments tribe(s) except as required by law. section 7 consultations, habitat have authority to manage fish and Because we have a limited ability to conservation planning, recovery, and wildlife resources on Indian lands. In protect sensitive tribal knowledge law enforcement, the Service will some situations, a tribal government (e.g., in response to Freedom of consult and collaborate with tribal may have fish and wildlife authority Information Act (FOIA) requests), we governments when developing plans affecting lands within reservation will work to inform tribal governments and regulations, in accordance with boundaries not owned by the tribe or about disclosure requests and S.O. 3206. Specific to critical habitat its members. In such cases, we will work collaboratively with tribal designation, we will always consider properly recognize the rights of both governments to protect and prevent exclusions of tribal lands under section the tribal government and the affected disclosure of confidential or sensitive 4(b) 2 of the ESA before finalizing a State(s), according to the specific information to the extent allowable designation of critical habitat. nature of the case. In addition, we will by law. work with tribal governments when We will also give great weight to tribal managing eagles and other migratory 4. Resource Management concerns in analyzing the benefits of birds, fish, endangered and threatened There is a broad range of collaborative exclusion. species and other public resources management opportunities available to where Federal laws apply. the Service and tribes. CO-MANAGEMENT AND COLLABORATIVE MANAGEMENT NON-INDIAN LANDS These opportunities include holding We support the rights of tribal The Service recognizes and supports informative discussions to seek governments as they exercise their the rights of tribal members to use fish tribal input, entering into formal sovereign authorities to manage, co- and wildlife resources on non-Indian agreements with tribes, cooperatively manage, or collaboratively manage lands where there is a legal basis setting harvest quantities, and fish and wildlife resources. We also for such use. As a result of treaties, sharing conservation management of support co-management where there statutes, E.O.s, and judicial decrees, resources. is a legal basis for such. Examples certain tribal governments and of legally established resource co- State governments may have shared The Service, as an agency of management include salmon harvest responsibilities to co-manage fish and the United States, and tribal in the Pacific Northwest, the Alaska wildlife resources. In such cases, and governments, as individual sovereigns, Migratory Bird Co-Management where Service jurisdiction is involved, should meaningfully participate in Council cooperatively setting we will consult and collaborate with managing resources where the Service subsistence harvest regulations, and tribal governments and affected and tribes have legally established lake trout fisheries in the Great Lakes. State or local resource management management responsibilities to In Alaska, this includes cooperative agencies to help meet the objectives of actively protect, conserve, enhance, agreements we enter into with all parties while honoring the Federal or restore fish, wildlife, and cultural Alaska Native Organizations (ANO) trust responsibility. In addition, we resources, to the maximum extent to conserve marine mammals and to will work with tribal governments allowed by law. Resource management provide co-management of subsistence when managing ESA-listed species in agreements should be tailored to use by Alaska Natives. accordance with S.O.s 3206 and 3225. specific circumstances based on such factors as history, knowledge We support opportunities for the When managing Service lands, we systems, applicable laws, and affected Service and tribes to collaborate to will consult and collaborate with communities. We encourage the protect, conserve, use, enhance, or affected tribal governments to solicit development of agreements to partner restore natural and cultural resources. meaningful tribal input on resource with tribes, States, and other co- This may include working together use and management for those lands. with tribal governments to monitor fish and wildlife resources, particularly Tribal Consultation Handbook / 47 5. Culture/Religion Where tribal members access Service Through the non-eagle repositories, The Service will meaningfully involve lands for cultural purposes on a we will continue to permit the tribal governments in our actions recurring basis, the Service and tribal collection, processing, and distribution when we or the tribal government(s) governments may enter into written of migratory bird feathers and determines the actions may affect agreements to facilitate such access. remains as expeditiously as possible their cultural or religious interests, for recognized religious, ceremonial, including archaeological resources, When considering non-member and cultural purposes in accordance cultural resources, and sacred sites, requests for access to areas that have with Federal law. consistent with Federal law. We will cultural resources, we will notify work and, where appropriate, consult with If a tribe wants to regulate their tribal governments in the geographic members’ collection and use of collaboratively with tribal vicinity or other tribes known to have resources from Service lands, the governments to protect confidential physical historical connections to those Service may enter into an agreement or sensitive information, including areas. with the tribe to do so to the extent location, ownership, character, and allowed by law. TRIBAL CULTURAL USES OF PLANTS AND use of cultural resources and sacred ANIMALS sites where disclosure may cause 6. Law Enforcement a significant invasion of privacy; The Service recognizes that many The Service recognizes that tribal risk harm to the historic resource; Indians use federally protected governments have responsibilities or impede the use of a traditional birds, bird feathers and remains, for managing Indian lands and religious site by practitioners, to the and other animal and plant material tribal resources. We encourage extent allowed by law. for their tribal cultural and religious cooperative law enforcement as an expression. We will work in integral component of tribal, Federal, ACCESS FOR CULTURAL, ARCHAEOLOGICAL, collaboration with tribal governments and State activities to enforce fish AND HISTORIC RESOURCES, AND INDIAN to protect traditional, customary, and wildlife resource laws. Where SACRED SITES ceremonial, medicinal, spiritual, and appropriate, Service law enforcement The Service should provide Native religious uses of plants and animals officers should cooperate with tribal Americans access to Service for tribal members where it is not governments, including tribal law lands and waters for exercising contrary to our legal mandates and enforcement, to enforce Federal or cultural, ceremonial, medicinal, and conservation goals. We are committed tribal laws and regulations pertaining traditional activities recognized by to balancing enforcement of wildlife to fish, wildlife, or cultural resources tribal governments to the extent laws with acknowledgement of tribal by: (1) identifying opportunities practicable, permitted by law, and not cultural and religious needs. for joint enforcement operations or inconsistent with essential Service investigations, (2) collaboratively functions. In doing so, we should: Through the National Eagle developing techniques and methods (1) avoid adversely affecting the Repository, we will collect, process, for detecting and apprehending physical integrity of sacred sites while and distribute, as expeditiously as violators, and (3) exchanging law managing our lands; (2) accommodate possible, eagle feathers and remains to enforcement information. and, as needed, collaborate with federally-recognized tribal members tribal governments for access to for religious, ceremonial, and cultural Because working with tribal members and maintenance of appropriate purposes in accordance with Federal may require additional sensitivity to settings for ceremonial use of Indian law. Timeliness of processing and cross-cultural issues, the sacred sites; and (3) consider tribal distributing eagle feathers and government protocols and procedures remains depends on availability and Service will provide training to to give their members access to on our need to conduct scientific and promote tribal cultural competency and use of cultural resources. For law enforcement investigations. We awareness within Service law easements across private property, process such items with dignity in enforcement and to help officers the Service will abide by easement recognition of the sacred nature of communicate in ways that improve restrictions. their use. tribes’ understanding regarding the Service’s Federal mandates and mission. 48 / Tribal Consultation Handbook We will coordinate with tribal law SERVICE ASSISTANCE FOR TRIBAL requests for annual and multi-year enforcement officers about our law DEVELOPMENT OF FISH AND WILDLIFE funding agreements where resources PLANS AND CODES enforcement operations on or adjacent are available and the agreements meet to Indian lands when it is feasible and When a tribal government requests the mutual needs of tribes and the appropriate. We will also help tribal it, and as resources and priorities Service. governments when it is feasible and allow, the Service will cooperatively appropriate to coordinate fish and review and assess tribal conservation In addition to the authorities under wildlife law enforcement investigations measures for fish and wildlife the ISDEAA, the Service has that require the use of the Federal resources that may be included in additional authorities to enter into court system. tribal resource management goals grants and cooperative agreements. and objectives. Service involvement The Service will consider the full Some tribal governments have their may be limited where litigation or range of operating protocols that own authority and jurisdiction to other court actions have established a are consistent with the Service’s process violations under tribal natural specific process for the development of obligations under the Department’s resource laws. When a tribe requests species management plans and tribal rules and regulations implementing assistance with criminal prosecution codes. the ISDEAA. The Service may also of a wildlife law violator, whether or assist tribal governments to identify not the violator is a tribal member, we AGREEMENTS Federal and non-Federal funding should work with the tribe to prepare When a tribal government requests it, sources that may be available for Lacey Act violations for referral to the we may develop agreements with them tribal fish and wildlife resource Department of Justice. to work together and to exchange management activities. personnel, expertise, and information. 7. Tribal Capacity Building, LAW ENFORCEMENT TRAINING Assistance, and Funding INDIAN SELF-DETERMINATION AND When a tribal government requests it EDUCATION ASSISTANCE ACT (ISDEAA) and as resources and priorities allow, TECHNICAL EXPERTISE AND ASSISTANCE The Service supports tribal we will provide expertise, guidance, governments and their missions When a tribal government requests it, and assistance in developing, and objectives to assume program and as resources and priorities allow, maintaining, or improving tribal management roles and responsibilities the Service will make our technical fish and wildlife law enforcement through applicable ISDEAA experts available to help the tribal programs. The basic and refresher agreements and other available government develop its own technical fish and wildlife law enforcement mechanisms. The Service will expertise in fish and wildlife resources training courses we provide to other promptly address requests from conservation and management. The governmental agencies are available to tribes and other eligible entities Service and tribal governments will tribal law enforcement officers. for ISDEAA contracts and annual collaborate on the kinds of technical funding agreements. Programs assistance that each can provide TRAINING AND PROFESSIONAL eligible for contracts under Title I are DEVELOPMENT and will work together to prioritize those that are available for the benefit technical assistance needs at the local As resources and priorities allow, of Indians because of their status as and Regional levels. we will facilitate and assist in the Indians. Under Title IV, approved education and development of Native Self-Governance tribes may request When a tribal government requests it, Americans by providing educational that the Service enter into funding we will review their law enforcement programs and on-the-job training agreements for Service programs, capabilities and, if warranted, opportunities. We may establish services, functions, and activities that recommend ways to improve them. partnerships and cooperative are eligible for contracting under relationships with Native American Title I, as well as those which are of educational institutions to assist in a special geographic, historical, or such areas as developing natural cultural significance to the tribe. The resources curricula or implementing Service is committed to negotiating cooperative education programs, and self-determination contracts when providing opportunities for tribal applicable, as well as to considering youth to participate in environmental discretionary Self-Governance education and outreach activities. Tribal Consultation Handbook / 49 We may also include opportunities If there are disagreements regarding We encourage our employees to attend for career pathways programs, such implementation of this policy, the training that tribes offer. as tribal Youth Conservation Corps Service and tribal government(s) projects. will work together to resolve them WORKFORCE DIVERSIFICATION on a government-to-government The Service has active recruitment The Service will provide tribal basis at the appropriate level. A programs to attract qualified governments and their staff access to disagreement between the Service and personnel so that its workforce is our fish and wildlife resource training tribal government(s) will be handled representative of the cultural diversity programs in the same manner that we at the appropriate local or Regional of the nation. We encourage qualified provide access to other government level using the specific mechanisms Native Americans to apply for jobs agencies. In addition, we plan to work established in any existing with the Service. We will collaborate with tribes to develop, conduct, and agreements. Regional Directors or with tribal governments to recruit attend joint training programs to Regional Native American Liaisons Native Americans for Service increase awareness and sensitivity and or points of contact will bring cross- law enforcement officer positions, to cross-train our employees and tribal Regional disagreements concerning especially where Service-managed staff on each other’s responsibilities this policy to the attention of the public lands are within traditional for resource stewardship. National Native American Programs tribal territories. Coordinator and appropriate 8. Implementation And Monitoring Directorate member at Headquarters. 9. Scope And Limitations The Service is committed to The Service and tribal government(s) We have adopted this policy for implementing this policy in a way may agree to employ a mutually guidance purposes only, consistent that ensures effective outcomes. The acceptable neutral facilitator within with all applicable laws and Service and tribes will continually statutory timeframes, as long as both regulations. It does not preempt monitor Service programs and governments realize the results are or modify the Service’s statutory projects that affect tribal interests to not intended to apply in the context mission and authorities, position in determine if they support this policy. of investigative or prosecutorial law litigation, applicable privilege, or any We will collaboratively devise methods enforcement activities. professional responsibilities of Service for applying and assessing this policy employees. Implementation of this EMPLOYEE TRAINING AND EDUCATION in the field to ensure it is adaptable to policy is subject to the availability of changing Service and tribal priorities, The Service invites tribal resources and the requirements of the resource requirements, and laws. The governments to work with us to Anti-Deficiency Act. This policy must Service, in collaboration with tribes, develop training for employees whose not be used to arbitrate differences in will develop a national implementation duties may affect tribal interests. This opinion between government agencies plan, and, as necessary, develop training will improve understanding or to interpret any authorities, laws, Regional plans. We will form national of this policy; regionally specific or judicial findings. This policy does and Regional teams comprised of both Native American traditional, not negate or supersede the diverse Service and tribal representatives to cultural, and religious values and mandates and priorities of the Service. carry out these plans. practices; natural resource values; treaty and other federally reserved This policy is intended only to improve Every 3 to 5 years, the Service, with rights; consultation protocols; and the internal management of the assistance from tribal governments, appropriate law enforcement policy Service. It is not intended to, and will evaluate the national issues. The Service will encourage and does not, create any right or benefit, implementation and effectiveness support joint training with tribes to substantive or procedural, enforceable of the policy across our Regions promote common understanding about at law or equity by a party against and programs. This review should implementing the policy within the the United States, its departments, include an analysis of disagreements context of circumstances specific to a agencies, instrumentalities or entities, and resolutions as they pertain Region. its officers or employees, or any other to this policy and a report with person. recommendations for any appropriate improvements to the policy to the Director. 50 / Tribal Consultation Handbook This policy does not supersede, amend, or otherwise modify or affect the implementation of existing agreements or understandings between the Service and individual tribal governments except through mutual agreement. Nothing in this policy may be construed as affecting the authority, jurisdiction, or responsibilities of States to manage, control, or regulate fish and resident wildlife under State law or regulations. Tribal Consultation Handbook / 51 Exhibit 1 Consult—to conduct mutual, open, be an appropriately authoritative and direct two-way communication representative of an Indian religion, DEFINITIONS in good faith to secure meaningful as sacred by virtue of its established The following definitions help to participation in the decisionmaking religious significance to, or ceremonial clarify the Service’s Native American process, as allowed by law. use by, an Indian religion, provided policy (510 FW 1): that the tribal government informs the Director— the Director of the U.S. Service of the existence of such a site. Agreement—a document approved by Fish and Wildlife Service. two or more parties that identifies Traditional knowledge— includes Tribal their roles and responsibilities Fish and wildlife resources—fish and Ecological Knowledge (TEK) and in achieving mutual objectives wildlife (including invertebrates), is used to describe the knowledge (e.g., Memoranda of Agreement, plants, and their habitats that the held by indigenous cultures about Memoranda of Understanding, Service is responsible for managing their immediate environment and the Cooperative Agreements, Statements and conserving, including migratory cultural practices that build on that of Relationship, Grants, and birds; marine mammals; inter- knowledge. TEK includes an intimate Contracts). jurisdictional fish; refuges (including and detailed knowledge of plants, fish, wildlife, and plants found animals, and natural phenomena; the Alaska Native Organizations (ANO) — on refuges); and federally listed, development and use of appropriate any organization established by threatened, and endangered species. technologies for hunting, fishing, Alaska tribal governments or by trapping, agriculture, and forestry; law, whose interests encompass the Fish and wildlife and cultural resource and a holistic knowledge, or “world conservation, protection, restoration, management—all activities that are view” that parallels the scientific and enhancement of fish, wildlife, intended to contribute directly discipline of ecology. See the Service’s and environmental resources. For or indirectly to the preservation, Native American Program Web page purposes of the Marine Mammal protection, use, maintenance, for more information. Protection Act, a group designated mitigation, or enhancement of fish, by law or formally chartered that wildlife, and cultural resources. Tribal governments or federally recognized represents or consists of Indians, tribes—all Indian tribes identified in Aleuts, or Eskimos residing in Alaska Indian lands—any lands where title the most recent list of “Indian Entities (see 16 U.S.C.1362(23)). is either held in trust by the United Recognized and Eligible to Receive States for the benefit of an Indian Services from the United States Alaska Native Corporation—any Alaska tribe or individual Indian, or held by Bureau of Indian Affairs” published in Native village corporation, urban an Indian tribe or individual Indian accordance with section 104 of Public corporation, or regional corporation subject to restrictions by the United Law 103-454 (108 Stat. 4792; 25 U.S.C. as defined in, or established under, the States against alienation (i.e., sale or 479a-1) and any other Indian tribes Alaska Native Claims Settlement Act. transfer). acknowledged by the Bureau of Indian Affairs and identified for inclusion on Collaborate—the Service and tribal Lands—includes uplands, wetlands, such a list. governments working together. and open waters such as streams, lakes, estuaries, and bays. Tribal trust resources—pertains only to Co-management—two or more entities, Indian trust assets (i.e., lands, natural each having legally established Native American—refers to American resources, money, or other assets) management responsibilities, working Indians in the conterminous United that the Federal Government holds collaboratively to achieve mutually States and Alaska Natives (including in trust or that are restricted against agreed upon, compatible objectives Aleut, Eskimo, and Indian) who are alienation for the benefit of Indian to protect, conserve, use, enhance, or members of federally recognized tribes and individual Indians. restore natural and cultural resources. tribes. Collaborative management—two or more Sacred site—any specific, discrete, entities working together to actively narrowly delineated location on protect, conserve, use, enhance, or Federal land that is identified by restore natural and cultural resources. (1) a tribal government, or (2) an Indian individual determined to 52 / Tribal Consultation Handbook Exhibit 2 OVERALL RESPONSIBILITIES Table 1 below describes the responsibilities of Service officials for implementing the Service’s Native American Policy, 510 FW 1. Sections 2.0 to 9.0 in the policy provide details about how we achieve these responsibilities. Table 1: Responsibilities for the Service’s Native American Policy, 510 FW 1 These officials… When working with federally recognized tribal governments, are responsible for… A. The Director (1) Serving as the final authority for those Servicewide decisions that may affect tribal interests; (2) Overseeing the management of all Service programs, including our work with tribal governments; (3) Ensuring Servicewide policies and programs are consistent with our tribal trust responsibility; (4) Working to resolve issues with tribal governments when elevated by Regional Directors; and (5) Delegating authority to consult with tribal officials. B. National Native American (1) Coordinating with Headquarters and Regional Directorate members on Programs Coordinator national and cross-Regional programs and issues; (2) Maintaining and continuing to build and promote positive working relationships with federally recognized Indian tribes by listening to tribes and gaining insight to further conservation goals and cultural protection at the national level; (3) Developing and providing national-level training opportunities for Service employees, tribal staff, and tribal members; (4) Developing and administering a national implementation plan to incorporate this policy into Service operations; (5) Reviewing this policy with assistance from Directorate members and tribes (see section 8 of 510 FW 1) to strengthen its implementation and identify recommended revisions and updates; (6) Developing agreements and programs with tribes under ISDEAA as we discuss in section 7 of 510 FW 1; (7) Promoting tribal cultural competency awareness within the Service and improving tribes’ understanding regarding our Federal mandates and mission at the national level; (8) Promoting partnership opportunities between the Service and tribes at national and Regional levels; and (9) Leading and facilitating the resolution of conflicts between tribes and the Service that are multi-Regional or national in scope. Tribal Consultation Handbook / 53 Table 1: Responsibilities for the Service’s Native American Policy, 510 FW 1 These officials… When working with federally recognized tribal governments, are responsible for… C. Directorate members (1) Serving as the delegated agency officials in government-to-government at Headquarters consultation or other coordination on issues relevant to tribes; and (2) Ensuring the goals and intent of this policy are implemented as their staff develop: (a) Program policies, (b) Regulations, (c) Strategic plans (national and Regional), and (d) Other planning documents. D. Chief – Office of Law Enforcement (1) Ensuring that all OLE employees implement this policy; (OLE), through Special Agents-in- (2) Serving as or designating an OLE agency official in government-to- Charge government consultation or other coordination on law enforcement issues relevant to tribes; and (3) Ensuring the goals and intent of this policy are implemented as OLE staff develop: (a) Program policies, (b) Regulations, (c) Training for Service officers and tribal conservation officers, (d) Strategic plans, and (e) Other planning documents. E. Regional Directors (1) Serving as the delegated agency officials in government-to-government consultation or other coordination on issues relevant to tribes; (2) Fulfilling the Service’s Federal Indian trust responsibilities to tribes; (3) Ensuring the Service operates on a government-to-government basis with tribes; (4) Coordinating with tribes on a regular basis to address important issues; (5) Promoting partnership opportunities between the Service and tribes at the Regional level; (6) Resolving issues that may arise within the Region when implementing this policy; (7) Assigning a Regional Native American Liaison or point of contact; and (8) Developing and providing Regional training opportunities for Service employees, tribal staff, and tribal members. 54 / Tribal Consultation Handbook Table 1: Responsibilities for the Service’s Native American Policy, 510 FW 1 These officials… When working with federally recognized tribal governments, are responsible for… F. Regional Native American Liaisons (1) Serving as the point of contact or intermediary between the Service or Point(s) of Contact and tribes, (2) Assisting Service employees in implementing this policy, (3) Maintaining and continuing to build and promote positive working relationships with tribes at the Regional level, (4) Promoting tribal cultural competency awareness within the Service and improving tribes’ understanding regarding the Service’s Federal mandates and mission at the Regional level, (5) Promoting partnership opportunities (e.g., co-management and training) between the Service and tribes at the Regional level, (6) Providing assistance and support to the Regional Director in resolving conflicts between tribes and the Service, and (7) Developing step-down policies (e.g., in Region 7 for Alaska National Claims Settlement Act (ANCSA) corporations and Marine Mammal Protection Act (MMPA) Alaska Native Organizations) and Regional implementation plans, where appropriate. G. Regional Directorate Team (1) Serving as the delegated agency official in government-to-government Members consultation or other coordination on issues relevant to tribes; (2) Ensuring the goals and intent of this policy, including timely communication with tribes in planning and implementation phases, in their programs; and (3) Developing agreements with tribes under ISDEAA as we discuss in section 7 of 510 FW 1. H. Project Leaders, Managers, and (1) Serving as the agency official in government-to-government consultation Supervisors or other coordination on issues relevant to tribes, when delegated; (2) Ensuring activities for which they are responsible are consistent with this policy; (3) Developing agreements with tribes under ISDEAA as we discuss in section 7 of 510 FW 1; (4) Ensuring employees understand the relevance of this policy to their job duties; (5) Making relevant training opportunities related to implementing this policy available to employees whose duties may affect tribal interests; (6) Encouraging and supporting implementation of the goals and responsibilities described in this policy as they are applicable to the programs and projects for which they are responsible; (7) Providing assistance and support to the Regional Director in resolving conflicts between tribes and the Service; and (8) Assisting Service employees to implement this policy. Tribal Consultation Handbook / 55 Table 1: Responsibilities for the Service’s Native American Policy, 510 FW 1 These officials… When working with federally recognized tribal governments, are responsible for… I. Employees whose duties may affect (1) Understanding this policy and its importance in carrying out the agency tribal interests mission, specifically by developing a working knowledge of any policy goals and responsibilities relevant to their job duties. This includes taking relevant training (see section 8 of 510 FW 1); (2) Implementing applicable sections of the policy for issues or projects that may affect tribal interests (e.g., through coordination with tribal biologists or other staff of federally recognized tribes, development of working relationships with tribal staff in the area, etc.), to fulfill the Service’s Federal Indian trust responsibilities; and (3) Communicating with managers and supervisors when professional activities include federally recognized tribes. USFWS U.S. Fish and Wildlife Service former Director and Native American Policy Team at January 20, 2016 signing ceremony in Washington, DC. 56 / Tribal Consultation Handbook Exhibit 3 Statutes: Alaska National Interest Lands Conservation Act of 1980, as amended (16 U.S.C. AUTHORITIES FOR THE SERVICE’S NATIVE 3101-3233) (ANILCA). AMERICAN POLICY Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601-1629h) (ANCSA). American Indian Religious Freedom Act, as amended (42 U.S.C. 1996-1996a) (AIRFA). Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. The Service relies on the list of 470aa-470mm) (ARPA). authorities below when working with Bald and Golden Eagle Protection Act, as amended (16 U.S.C. 668-668d) (BGEPA). tribes as we describe in the Service’s Consolidated Appropriations Act of 2004, (P.L. 108-199 Div. H. sec. 161 118 Stat 3 452, Native American Policy, 510 FW 1. as amended by Consolidated Appropriations Act of 2005 P. L. 108-447, Div. H, Title V. The Service recognizes that these Sec. 518,118 Stat. 3267). authorities are not all encompassing, Department of the Interior General Authorities, Duties of the Secretary and we may update this list from time (43 U.S.C. 1457). to time. Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544) (ESA). Fish and Wildlife Act of 1956, as amended (16 U.S.C. 742a-742d and 742e-742j-2). Fish and Wildlife Coordination Act of 1934, as amended (16 U.S.C. 661-667d) Freedom of Information Act (5 U.S.C. 552) (FOIA). Indian Reorganization Act (Wheeler-Howard Act) (25 U.S.C. 461, et seq.) (IRA). Indian Self-Determination and Education Assistance Act of 1975, as amended (Public Law 93-63825 U.S.C. 450 et seq.)) (ISDEAA). The Lacey Act of 1900 (16 U.S.C. 3371-3378). Marine Mammal Protection Act (16 U.S.C. 1361-1423h) (MMPA); for ANO cooperative agreements, see 16 U.S.C. 1388. Migratory Bird Treaty Act, as amended (16 U.S.C. 703-712) (MBTA). National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) (NEPA). National Historic Preservation Act of 1966, as amended (54 U.S.C. 300101, et seq.) (NHPA). National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee). Native American Graves Protection and Repatriation Act (25 U.S.C. 3001-3013) (NAGPRA). Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-2000bb-4) (RFRA). Executive Orders (E.O.): E.O. 13007; Indian Sacred Sites; May 24, 1996. E.O. 13175; Consultation and Coordination with Indian Tribal Governments; November 6, 2000. Presidential Memoranda: Government-to-Government Relations with Native American Tribal Governments; April 29, 1994. Government-to-Government Relationship with Tribal Governments; September 23, 2004. Tribal Consultation; November 5, 2009. Secretary’s Orders (S.O.): S.O. 3206; American Indian Tribal Rights, Federal Trust Responsibilities, and the Endangered Species Act; June 5, 1997. S.O. 3225; Endangered Species Act and Subsistence Uses in Alaska; January 19, 2001. S.O. 3335; Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries; August 20, 2014. Tribal Consultation Handbook / 57 Department of the Interior Policy: Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act Corporations (512 DM 5). Department of the Interior Policy on Consultation with Indian Tribes and Native Corporations (512 DM 4). Departmental Responsibilities for Protecting/Accommodating Access to Indian Sacred Sites (512 DM 3). Rogers C. B. Morton, Secretary of the Interior, Policy Statement on Indian Use of Bird Feathers; February 5, 1975. Department of Justice Policy: Attorney General Memorandum: Possession or Use of Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes; October 12, 2012. Interdepartmental Memorandum of Understanding: Memorandum of Understanding Among the U.S. Department of Defense, U.S. Department of the Interior, U.S. Department of Agriculture, U.S. Department of Energy, and the Advisory Council on Historic Preservation Regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites, December 4, 2012. 58 / Tribal Consultation Handbook B.15. U.S. Fish and Wildlife Service Director’s memo (Sep. 2, 2008) Tribal Consultation Handbook / 59 60 / Tribal Consultation Handbook B.16. Department of the Interior not supersede, any existing laws, manner further facilitates effective Policy on Consultation with Indian rules, statutes, or regulations that Department operations and Tribes (December 1, 2011) guide consultation processes with governance practices. To that end, Indian Tribes. Bureaus and Offices will seek and I. Preamble promote cooperation, participation, This Policy requires a government- and efficiencies between agencies The obligation for Federal agencies to-government consultation with overlapping jurisdiction, special to engage with Indian Tribes on a between appropriate Tribal Officials expertise, or related responsibilities government-to-government basis is and Departmental officials. The regarding a Departmental Action based on the U.S. Constitution and appropriate Departmental officials with Tribal Implications. Efficiencies Federal treaties, statutes, executive are those individuals who are derived from the inclusion of Indian orders, and policies. Federal agencies knowledgeable about the matters Tribes in the Department’s decision- help to meet that obligation through at hand, are authorized to speak making processes through Tribal meaningful consultation with Indian for the Department, and exercise consultation will help ensure that Tribes. delegated authority in the disposition future Federal action is achievable, and implementation of an agency comprehensive, long-lasting, and The Department of the Interior action. Departmental officials reflective of tribal input. (Department) is committed to will identify appropriate Tribal fulfilling its Tribal consultation consulting parties early in the III. Definitions obligations—whether directed by planning process and provide Indian Bureau or Office: As defined in the statute or administrative action Tribes a meaningful opportunity to Department Manual. such as Executive Order (EO) 13175 participate in the consultation process (Consultation and Coordination as described in Section VII of this Collaboration: The Department and with Indian Tribal Governments) or Policy. Departmental officials will Indian Tribes working together to other applicable Secretarial Orders participate in the consultation process implement this Policy. or policies—by adhering to the in a manner that demonstrates a consultation framework described in meaningful commitment and ensures Consultation Policies: Those policies this Policy. Through this Policy, the continuity in the process. The Policy established to comply with the Department strives to strengthen thus honors the government-to- procedures described in Section VII. its government-to-government government relationship between relationship with Indian Tribes and the United States and Indian Tribes, Departmental Action with Tribal begin a new era of consultation. and complies with the Presidential Implications: Any Departmental Memorandum of November 5, 2009, regulation, rulemaking, policy, This Policy reflects the Secretary’s which affirms this relationship and guidance, legislative proposal, commitment to consultation with obligates the Department to meet the grant funding formula changes, or Indian Tribes, recognition of Indian spirit and intent of EO 13175. operational activity that may have a Tribes’ right to self- governance and substantial direct effect on an Indian Tribal sovereignty. Consultation is a deliberative Tribe on matters including, but not process that aims to create effective limited to: The Department’s Bureaus and Offices collaboration and informed Federal shall review their existing practices decision-making. Consultation is built 1. Tribal cultural practices, lands, and revise them as needed to comply upon government-to-government resources, or access to traditional with this Policy. All Bureaus and exchange of information and promotes areas of cultural or religious Offices will report to the Secretary, enhanced communication that importance on federally managed through the designee, on their efforts emphasizes trust, respect, and shared lands; to comply with this Policy, as described responsibility. Communication will in a companion Secretarial Order. be open and transparent without 2. The ability of an Indian Tribe to compromising the rights of Indian II. Guiding Principles govern or provide services to its Tribes or the government-to- members; This Policy broadly defines provisions government consultation process. for enhancing the Department’s consultation processes with Indian Federal consultation conducted Tribes. This Policy shall complement, in a meaningful and good-faith Tribal Consultation Handbook / 61 3. An Indian Tribe’s formal On an annual basis, Bureaus and B. Outline and reinforce the relationship with the Department; or Offices shall report to the Secretary Department’s duties concerning tribal the results of their efforts to interests; 4. The consideration of the promote consultation with Indian Department’s trust responsibilities to Tribes. Reporting is intended to be C. Describe the legal trust obligation Indian Tribes. This, however, does not comprehensive and may include, of the Federal-Tribal relationship; and include matters that are in litigation or but is not limited to, the scope of in settlement negotiations, or matters consultation efforts, the cost of these D. Highlight and provide the for which a court order limits the efforts, and the effectiveness of knowledge, skills, and tools necessary Department’s discretion to engage in consultation activities. As part of its for collaborative engagement to Tribal consultation. annual report, Bureaus and Offices and Departmental staff engaged in the shall provide a comprehensive listing consultative process with attention to Indian Tribe or Tribe: Any Indian or of the topics on which consultations the unique distinctions within Indian Alaska Native Tribe, band, nation, were held, training, innovations, and Country. pueblo, village, or community the engagement of senior leadership that the Secretary of the Interior in these efforts. Where possible, such The Department, through the acknowledges to exist as an Indian reports shall include feedback from Department of the Interior University Tribe pursuant to the Federally Indian Tribes with whom the Bureau (DOIU), in collaboration with Recognized Indian Tribe List Act of or Office has consulted. Reports Bureaus, Offices, Tribal colleges 1994, 25 U.S.C. § 479a. should reference the documents and and universities, and other entities correspondence with Indian Tribes with Indian expertise, will develop Tribal Governance Officer (TGO): that address the implementation and deliver training to facilitate An individual designated by of the Final Federal Action Stage implementation of this Policy. the Department to carry out described in Section VII of this Policy, responsibilities defined in this Policy. a description of budget expenditures DOIU will develop required core in the execution of consultation efforts, competencies, which Bureaus Tribal Liaison Officer (TLO): One or more narratives describing significant and Offices may enhance through individuals designated by a Bureau consultation efforts, and forthcoming other appropriate sources of Tribal or Office to carry out responsibilities consultation opportunities. expertise. This training will seek defined in this Policy. to enhance mutual understanding Based on information received from of cultural perspectives and Tribal Official: An elected or appointed the Bureaus and Offices, the Secretary administrative requirements between Tribal leader or official designated will provide an annual report to Tribal and Federal officials and in writing by an Indian Tribe to Indian Tribes on implementation of to promote inter-governmental represent the Tribe in government-to- the Department’s Consultation Policy. relationships. Tribal representatives government consultations. The Department will use its website will be encouraged to participate in to share report information, where training along with Federal employees. IV. Accountability and Reporting appropriate. Methods that ensure accountability VI. Innovative and Effective and reporting are essential to regular V. Training Consultation Practices and meaningful consultation. The The Department will design training The Department’s leadership will heads of Bureaus and Offices shall for Department staff aimed at strive to advance Federal consultation include appropriate performance improving the Department’s capacity practices and to offer examples for measures consistent with this Policy for promoting collaboration with innovation across the Administration. in future annual performance plans of Indian Tribes and executing the The Department will identify and their employees. consultation provisions of Section VII seek to address impediments, both of this Policy. The training will: external and internal, to improving its consultation processes. A. Promote consultation, communication, collaboration, and other interaction with Tribes; 62 / Tribal Consultation Handbook In consultation with Indian Tribes, this Policy. The Bureau or Office will and periodic efforts to repeat the the Secretary will establish a joint strive to ensure that a notice is given invitation and, whenever feasible, Federal-Tribal Team for the purpose at least 30-days prior to scheduling should allow an Indian Tribe to join of making recommendations on the a consultation. If exceptional an ongoing consultation. These efforts implementation of this Policy and for circumstances prevent notice of engagement shall be appropriately ensuring continued improvement of within 30-days of the consultation, documented. this Policy. The Federal Tribal Team an explanation for the abbreviated may: notification will be provided in the B. ROLE OF TRIBAL GOVERNANCE invitation letter. An Indian Tribe may OFFICER AND TRIBAL LIAISON OFFICER IN CONSULTATION PROCESS. A. Host regular meetings between request an extension for timelines the Secretary and Indian Tribes; associated with this Policy. 1. The Secretary shall designate a TGO, who will have access to the B. Communicate through a regular Adequate notice entails providing Secretary or Deputy Secretary, to gathering of Indian Tribes to discuss a description of the topic(s) to be carry out the responsibilities defined improving consultation practices and discussed, a timeline of the process, in this Policy. These responsibilities procedures; and possible outcomes. Notification of shall include: a consultation should include sufficient a. Monitoring compliance with C. Solicit recommendations detail of the topic to be discussed to this Policy, EO 13175, and other from Indian Tribes for the initial allow Tribal leaders an opportunity to Consultation Policies pertaining development of performance measures fully engage in the consultation. The to government-to-government described in Section IV, and thereafter notice should also give Tribal leaders consultation; for the evaluation of consultation the opportunity to provide feedback practices. prior to the consultation, including b. Serving as the Secretary’s any request for technical assistance representative when requested VII. Consultation Guidelines or request for clarification of how to do so in matters pertaining to consultation; Consultation guidelines are meant the consultation process conforms to to establish uniform practices this Policy. c. Promoting government-to- and common standards, which government consultation; all Bureaus and Offices will use Beginning at the Initial Planning d. Communicating and coordinating except when otherwise agreed to in Stage, see Section VII, Part E, with TLOs concerning Bureau and writing by a Bureau or Office and Subsection 1, a Bureau or Office Office compliance with this Policy; Indian Tribe, through an individual will consult with Indian Tribes on protocol conforming to the guidelines a Departmental Action with Tribal e. Encouraging Indian Tribes to in this Section. Consultation and Implications. request consultation directly with individual protocols will provide the appropriate Bureau or Office greater efficiency and transparency An Indian Tribe may request that representative or the TLO and in Department practices in order to the Department initiate consultation helping to ensure the resolution of maximize Indian Tribes’ participation. when the Indian Tribe believes that all requests. Departmental Actions with Tribal a Bureau or Office is considering f. Implementing, in coordination Implications that are regional or a Departmental Action with Tribal with the TLOs, a reporting system impact a limited number of Indian Implications. Requests should be to ensure that consultation efforts Tribes shall be carried out in a manner made in writing to the Department’s are documented and reported to the consistent with this Policy while TGO and should describe the specific Secretary and to the Department’s allowing discretion to employ only Departmental Action with Tribal TGO for EO 13175; and appropriate parts of this Section. Implications. However, in the event that an Indian Tribe may choose not to g. Facilitating a government-to- government relationship that is A. INITIATING CONSULTATION. engage the TGO, a Bureau or Office is not relieved of its obligation to engage honored by all parties in Tribal When considering a Departmental consultations of national significance Action with Tribal Implications, a in consultation as described by this Policy. If the Bureau or Office initiates or involving multiple Bureaus or Bureau or Office must notify the Offices. appropriate Indian Tribe(s) of the consultation with a Tribe but does opportunity to consult pursuant to not receive a response, the Bureau or Office should make reasonable Tribal Consultation Handbook / 63 2. Each Bureau or Office shall 3. Identify TLOs and TGO— E. STAGES OF CONSULTATION. designate one or more TLOs whose Each Bureau or Office shall take Bureaus and Offices shall carry out responsibilities shall include: appropriate measures to identify and the consultation stages described disseminate the name and contact a. Working with the Bureau or below for a Departmental Action with information of the TGO and the Office to achieve compliance with Tribal Implications. TLO(s) to facilitate contacts by Tribal this Policy, the Consultation Policies Officials. of the Bureau or Office, and any 1. Initial Planning Stage. future policies related to EO 13175 Each Bureau or Office will consult C. GUIDELINES FOR RESPONSE TO REQUEST with Indian Tribes as early as possible or other government-to-government FOR CONSULTATION. consultation policies; when considering a Departmental The TGO or appropriate Action with Tribal Implications. b. Promoting and facilitating representative will confirm receipt consultation and collaboration of a request for consultation from a A Bureau or Office may conduct a between Indian Tribes and the Tribal Official. When the request is meeting or other forms of interaction Bureau or Office; directed to the TGO, the request is with Indian Tribes in order to receive c. Advocating opportunities for to be forwarded to the appropriate and evaluate comments received as and consideration of the positions Bureau or Office. The TGO or part of the Initial Planning Stage. of Indian Tribes, consistent with appropriate representative will treat Bureau or Office mission; an official request for consultation Bureaus and Offices will work with in an expedited fashion and respond each other and with other Federal d. Serving as the principal point in writing that the Department has agencies, where appropriate, to avoid of contact for the TGO concerning received the request, using the most duplicative consultations. compliance with this Policy, expedient methods to communicate to including the Bureau’s and Office’s the Indian Tribe. 2. Proposal Development Stage. reporting requirements; e. Striving to enhance a trusting and D. CONSULTATION PROCESS SUPPORT. The Proposal Development Stage on-going relationship with Indian The Office of Collaborative Action begins once the Department discloses Tribes, consistent with applicable and Dispute Resolution can assist in the scope of a Departmental Action law and executive orders; planning and facilitating an effective with Tribal Implications. Indian Tribes consultation process, negotiated f. Serving as an initial contact for should be considered appropriate rulemaking, or other collaborative Indian Tribes to request or inquire collaborative partners, particularly approach to decision-making. In about consultation when it is unclear where negotiated rulemaking or a planning consultation processes whom to contact in the Bureau or Tribal Leader Task Force is created. as outlined below in Paragraph E, Office; and Bureaus and Offices are encouraged The Bureau or Office shall develop a g. Carrying out other to consider best practices for process for the Proposal Development responsibilities as assigned by engagement, including but not limited Stage that maximizes the opportunity Bureau or Office Consultation to, the use of neutral facilitation and for timely input by Indian Tribes Policies. other collaborative problem-solving and is consistent with both Tribal approaches to promote effective and Bureau or Office schedules. The dialogue and conflict resolution. Bureau or Office will solicit the views of affected Indian Tribes regarding the process timeline to consult on a Departmental Action with Tribal Implications. The Bureau or Office should work with Indian Tribes to structure a process, to the extent feasible, that considers specific Indian Tribal structures, traditional needs, and schedules of the Indian Tribes. 64 / Tribal Consultation Handbook The Bureau or Office should make all a cross-section of Tribal interests with F. IMPACT OF CONSULTATION GUIDELINES. reasonable efforts to comply with the respect to the matter at issue. The Consultation does not preclude expressed views of the affected Indian location and number of meetings to requests or recommendations by Tribes regarding the process timeline be held will conform to the expressed Bureaus, Offices, or Indian Tribes to at this Stage, taking into account the views of the Indian Tribes, to the collaborate and foster collaborative level of impact, the scope, and the extent practicable and permitted by relationships between the Department complexity of the issues involved in law and in accordance with FACA. and Indian Tribes outside of the the Departmental Action with Tribal processes described in this Section. Implications, along with the other ■■Series of Open Tribal Meetings. The Bureau or Office may provide factors driving the schedule. The VIII. Supplemental Policies. open invitations for Tribal leaders to process will be open and transparent. Bureaus and Offices, in collaboration The Bureau or Office then may attend a series of open meetings. Open meetings can be used for national, with the TGO, shall review existing proceed with the expectation that policies affected by this Policy. All interested Indian Tribes will respond regional or subject-matter specific issues. existing policies shall conform to this within a reasonable time period. Policy and, where necessary, a Bureau ■■Single Meetings. The Bureau or Office may develop a new policy in When the matter under consultation or Office may host Tribal Officials order to conform to this Policy. involves confidential or culturally in a single meeting to discuss a sensitive information, the Bureau or Departmental Action with Tribal Consistent with Federal law, the Office will work with the Indian Tribe Implications under consideration. Department shall develop a policy to develop a consultation process Single meetings are particularly for consultation with Alaska Native that addresses the sensitivity of the appropriate for local or regional Corporations and other entities as information to the extent permitted issues, or a Tribe-specific issue. appropriate following the principles by Federal law. If litigation or legal set out in this Policy. requirements impact a Bureau’s If either the Bureau or Office or Office’s schedule for conducting determines that the Administrative Departmental entities that are not consultation, the Bureau or Office Procedure Act or other Federal law Bureaus and Offices may develop shall explain these constraints to the or regulation expressly prohibits policies consistent with this Policy and Indian Tribe. continued discussion at a specified in coordination with the TGO. point in the decision-making process, Examples of appropriate processes the Bureau or Office should so inform IX. Disclaimer. for the Proposal Development Stage the Indian Tribes at the earliest Except to the extent already include, but are not limited to, the opportunity in this Stage in the established by law, this Policy is following: process. intended only to improve the internal ■■Negotiated Rulemaking. Where management of the Department, 3. Implementation of Final Federal appropriate, the Bureau or Office shall and is not intended to create any Action Stage. consider using negotiated rulemaking right, benefit, or trust responsibility, A Bureau or Office may consider for developing significant regulations substantive or procedural, enforceable implementing a post-consultation or other formal policies in accordance at law by a party against the review process where it is consistent with the Federal Advisory Committee Department or any person. The with law, regulations, and EO 13175. Act (FACA) and the Negotiated Department also does not waive by The review process shall not limit Rulemaking Act. virtue of this Policy any applicable the Department’s deliberative privilege that it may hold. ■■Tribal Leader Task Force. A Tribal process privilege regarding internal Leader Task Force may be used, in considerations or any other applicable appropriate circumstances, on regional privilege. The Department may invite or issue-specific matters (e.g., timber). feedback from the Indian Tribe of the In each instance, the composition of consultation process at this Stage. The the Task Force shall be collaboratively Bureau or Office also will consider determined by the Indian Tribes, the need for training or technical provided that the Task Force shall be assistance concerning the final Federal a process open to all Indian Tribes action. and, to the extent possible, represent Tribal Consultation Handbook / 65 Appendix B.17. Secretarial Order 3317 DOI Policy on Consultation with Indian Tribes 66 / Tribal Consultation Handbook Tribal Consultation Handbook / 67 68 / Tribal Consultation Handbook Federal Register / Vol. 78, No. 126 / Monday, July 1, 2013 / Presidential Documents 39539 Presidential Documents B.18. White House Council on Native American Affairs. (WHCNAA) E.O. 13647 Executive Order 13647 of June 26, 2013 Establishing the White House Council on Native American Affairs By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote and sustain prosperous and resilient Native American tribal governments, it is hereby ordered as follows: Section 1. Policy. The United States recognizes a government-to-government relationship, as well as a unique legal and political relationship, with feder- ally recognized tribes. This relationship is set forth in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. Honoring these relationships and respecting the sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity. As we work together to forge a brighter future for all Americans, we cannot ignore a history of mistreatment and destructive policies that have hurt tribal communities. The United States seeks to continue restoring and healing relations with Native Americans and to strengthen its partnership with tribal governments, for our more recent history demonstrates that tribal self-deter- mination—the ability of tribal governments to determine how to build and sustain their own communities—is necessary for successful and prospering communities. We further recognize that restoring tribal lands through appro- priate means helps foster tribal self-determination. This order establishes a national policy to ensure that the Federal Government engages in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including by better carrying out its trust responsibilities. This policy is established as a means of promoting and sustaining prosperous and resilient tribal communities. Greater engagement and meaningful consultation with tribes is of paramount importance in developing any policies affecting tribal nations. To honor treaties and recognize tribes’ inherent sovereignty and right to self-government under U.S. law, it is the policy of the United States to promote the development of prosperous and resilient tribal communities, including by: (a) promoting sustainable economic development, particularly energy, transportation, housing, other infrastructure, entrepreneurial, and workforce development to drive future economic growth and security; (b) supporting greater access to, and control over, nutrition and healthcare, including special efforts to confront historic health disparities and chronic diseases; (c) supporting efforts to improve the effectiveness and efficiency of tribal justice systems and protect tribal communities; (d) expanding and improving lifelong educational opportunities for Amer- ican Indians and Alaska Natives, while respecting demands for greater tribal control over tribal education, consistent with Executive Order 13592 of December 2, 2011 (Improving American Indian and Alaska Native Edu- cational Opportunities and Strengthening Tribal Colleges and Universities); and Tribal Consultation Handbook / 69 VerDate Mar<15>2010 22:07 Jun 28, 2013 Jkt 226001 PO 00000 Frm 00001 Fmt 4790 Sfmt 4790 E:\FR\FM\01JYE0.SGM 01JYE0 mstockstill on DSK4VPTVN1PROD with PREDOCE0 39540 Federal Register / Vol. 78, No. 126 / Monday, July 1, 2013 / Presidential Documents (e) protecting tribal lands, environments, and natural resources, and pro- moting respect for tribal cultures. Sec. 2. Establishment. There is established the White House Council on Native American Affairs (Council). The Council shall improve coordination of Federal programs and the use of resources available to tribal communities. Sec. 3. Membership. (a) The Secretary of the Interior shall serve as the Chair of the Council, which shall also include the heads of the following executive departments, agencies, and offices: (i) the Department of State; (ii) the Department of the Treasury; (iii) the Department of Defense; (iv) the Department of Justice; (v) the Department of Agriculture; (vi) the Department of Commerce; (vii) the Department of Labor; (viii) the Department of Health and Human Services; (ix) the Department of Housing and Urban Development; (x) the Department of Transportation; (xi) the Department of Energy; (xii) the Department of Education; (xiii) the Department of Veterans Affairs; (xiv) the Department of Homeland Security; (xv) the Social Security Administration; (xvi) the Office of Personnel Management; (xvii) the Office of the United States Trade Representative; (xviii) the Office of Management and Budget; (xix) the Environmental Protection Agency; (xx) the Small Business Administration; (xxi) the Council of Economic Advisers; (xxii) the Office of National Drug Control Policy; (xxiii) the Domestic Policy Council; (xxiv) the National Economic Council; (xxv) the Office of Science and Technology Policy; (xxvi) the Council on Environmental Quality; (xxvii) the White House Office of Public Engagement and Intergovernmental Affairs; (xxviii) the Advisory Council on Historic Preservation; (xxix) the Denali Commission; (xxx) the White House Office of Cabinet Affairs; and (xxxi) such other executive departments, agencies, and offices as the Chair may, from time to time, designate. (b) A member of the Council may designate a senior-level official, who is a full-time officer or employee of the Federal Government, to perform his or her functions. (c) The Department of the Interior shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations. VerDate Mar<15>2010 22:0770 Jun / Tribal 28, 2013 Consultation Jkt 226001 Handbook PO 00000 Frm 00002 Fmt 4790 Sfmt 4790 E:\FR\FM\01JYE0.SGM 01JYE0 mstockstill on DSK4VPTVN1PROD with PREDOCE0 Federal Register / Vol. 78, No. 126 / Monday, July 1, 2013 / Presidential Documents 39541 (d) The Council shall coordinate its policy development through the Do- mestic Policy Council. (e) The Council shall coordinate its outreach to federally recognized tribes through the White House Office of Public Engagement and Intergovernmental Affairs. (f) The Council shall meet three times a year, with any additional meetings convened as deemed necessary by the Chair. The Chair may invite other interested agencies and offices to attend meetings as appropriate. Sec. 4. Mission and Function of the Council. The Council shall work across executive departments, agencies, and offices to coordinate development of policy recommendations to support tribal self-governance and improve the quality of life for Native Americans, and shall coordinate the United States Government’s engagement with tribal governments and their communities. The Council shall: (a) make recommendations to the President, through the Director of the Domestic Policy Council, concerning policy priorities, including improving the effectiveness of Federal investments in Native American communities, where appropriate, to increase the impact of Federal resources and create greater opportunities to help improve the quality of life for Native Americans; (b) coordinate, through the Director of the Office of Public Engagement and Intergovernmental Affairs, Federal engagement with tribal governments and Native American stakeholders regarding issues important to Native Amer- icans, including with tribal consortia, small businesses, education and train- ing institutions including tribal colleges and universities, health-care pro- viders, trade associations, research and grant institutions, law enforcement, State and local governments, and community and non-profit organizations; (c) coordinate a more effective and efficient process for executive depart- ments, agencies, and offices to honor the United States commitment to tribal consultation as set forth in Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation); and (d) assist the White House Office of Public Engagement and Intergovern- mental Affairs in organizing the White House Tribal Nations Conference each year by bringing together leaders invited from all federally recognized Indian tribes and senior officials from the Federal Government to provide for direct government-to-government discussion of the Federal Government’s Indian country policy priorities. Sec. 5. General Provisions. (a) The heads of executive departments, agencies, and offices shall assist and provide information to the Council, consistent with applicable law, as may be necessary to carry out the functions of the Council. (b) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department, agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (d) For purposes of this order, ‘‘federally recognized tribe’’ means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a. (e) For purposes of this order, ‘‘American Indian and Alaska Native’’ means a member of an Indian tribe, as membership is defined by the tribe. Tribal Consultation Handbook / 71 VerDate Mar<15>2010 22:07 Jun 28, 2013 Jkt 226001 PO 00000 Frm 00003 Fmt 4790 Sfmt 4790 E:\FR\FM\01JYE0.SGM 01JYE0 mstockstill on DSK4VPTVN1PROD with PREDOCE0 39542 Federal Register / Vol. 78, No. 126 / Monday, July 1, 2013 / Presidential Documents (f) This order is not intended to, and does not, create any right or benefit, substantive39542 or Federalprocedural, Register enforceable/ Vol. 78, atNo. law 126 or / Monday,in equity July by 1, any2013 party / Presidential Documents against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. THE WHITE HOUSE, June 26, 2013. THE WHITE HOUSE, [FR Doc. 2013–15942 Filed 6–28–13; 11:15 am] June 26, 2013. Billing code 3295–F3 [FR Doc. 2013–15942 Filed 6–28–13; 11:15 am] Billing code 3295–F3 72 / Tribal Consultation Handbook VerDate Mar<15>2010 22:07 Jun 28, 2013 Jkt 226001 PO 00000 Frm 00004 Fmt 4790 Sfmt 4790 E:\FR\FM\01JYE0.SGM 01JYE0 mstockstill on DSK4VPTVN1PROD with PREDOCE0 OB#1.EPS VerDate Mar<15>2010 22:07 Jun 28, 2013 Jkt 226001 PO 00000 Frm 00004 Fmt 4790 Sfmt 4790 E:\FR\FM\01JYE0.SGM 01JYE0 mstockstill on DSK4VPTVN1PROD with PREDOCE0 OB#1.EPS Appendix C: Suggested Reading C.1. Cultural Resources C.2. History C.3. Law Berger, Thomas, Village Journey: The Adams, R.E. & Murdo MacLeod, editors, Cohen, Felix, Cohen’s Handbook of Federal Report of the Alaska Native Review The Cambridge History of the Native Indian Law, 2005, LexisNexis, Newark, Commission (1985) Peoples of the Americas, Volume 2, NJ. This is the standard reference work Mesoamerica, 2000, Cambridge University on Federal Indian law. First published in Cutler, Charles L., O Brave New Words!: Press, Cambridge & New York. In two 1942. Native American Loanwords in Current parts. Articles by numerous contributors. English, 1994, University of Oklahoma Deloria Jr., Vine and David E. Wilkins. Press, Norman, and Tracks that Speak: Bunson, Margaret, & Stephen M. Bunson, Tribes, Treaties and Constitutional The Legacy of Native American Words in Encyclopedia of Ancient Mesoamerica, Tribulations. 1991, University of Texas North American Culture, 2002, Houghton 1996, Facts on File, New York. Information Press, Austin. Mifflin, Boston. Two studies of Native about the people, places, and events of Pevar, Stephen L., The Rights of Indian American words that have passed into Mesoamerica, from 11,000 BC to 1500 AD. and Tribes: The Authoritative ACLU English. Dillehay, Thomas D., The Settlement of the (American Civil Liberties Union) Guide Deloria Jr., Vine. Indian Education in Americas: A New Prehistory, 2000, Basic to Indian and Tribal Rights, Fourth America. 1991, American Science and Books, Perseus Books Group, New York. Addition, 2012, New York University Engineering Society. An account of recent thinking regarding Press. This is the fourth edition of a series the first settlement of the Americas to inform individuals of their legal rights. Evans, Susan Toby, & David L. Webster, based on science from many disciplines. editors, Archaeology of Ancient Mexico & Georgeie Reynolds, PhD., Tribal The author has carried out extensive Central America: An Encyclopedia, 2001, Consultation Strategies For Beginners. archaeological research at a number of Garland Publishing, New York. 2016, [email protected]. sites, including Monte Verde in Chile. Information on the major culture areas, Steve J. Langdon, The Navtive People of Ferguson, T.J., and Chip Colwell- archaeological sites, and daily life of Alaska: Traditional Living in a Northern Chanthaphonh, History is in the Land: the ancient peoples, with maps and Land, Fifth Addition, 2014, Greatland Multivocal Tribal Traditions in Arizona’s photographs. Graphics Anchorage, Alaska. San Pedro Valley, 2006, University of Kerber, Jordan E. (editor), Cross-Cultural Arizona Press, Tucson. Collaboration: Native Peoples and Schwarz, Stuart, & Frank Salomon, C.4. NAGPRA Related Material Archaeology in the Northeastern United editors, The Cambridge History of the States, 2006, University of Nebraska Gulliford, Andrew. Sacred Objects Native Peoples of the Americas, Volume Press, Lincoln. and Sacred Places: Preserving Tribal 3, South America, 1999, Cambridge Traditions. 2000, University Press of University Press, Cambridge & New Nabokov, Peter, & Robert Easton, Native Colorado, Boulder. American Architecture, 1989, Oxford York. In two parts. Articles by numerous University Press, Ox-ford and New York. contributors. A detailed, well-illustrated study of North Trigger, Bruce G. & Wilcomb E. C.5. Profiles and Biography American Indian houses, organized by Washburn, editors, The Cambridge region. Bataille, Gretchen M. & Laurie Lisa, History of the Native Peoples of the editors, Native American Women: A Paterek, Josephine, Encyclopedia of Americas, Volume One, North America, Biographical Dictionary, 2001, Routledge, American Indian Costume, 1994, W.W. 1996, Cambridge University Press, New York. Brief biographies of historic Norton & Company, New York. An Cambridge & New York. In two parts. and present-day Indian women. \First overview of North American Indian Articles by numerous contributors. published 1993 by Garland Publishing, clothing, organized by region. Includes New York. information on men’s and women’s basic clothing, footwear, outerwear, hairstyles, Champagne, Duane, editor, The Native headgear, accessories, jewelry, and North American Almanac, Second changes in dress after European contact. edition, 2001, Gale Research, Detroit, (Note: not a “how-to” book.) MI. Includes brief biographies of 470 prominent Native North Americans, in Watkins, Joe, Indigenous Archaeology: addition to a chronology, and chapters on American Indian Values and Scientific historical demography, languages, law and Practice. 2000 Altamira Press, Walnut legislation, activism, religion, education, Creek, California. and the arts. Tribal Consultation Handbook / 73 Johansen, Bruce E., & Donald A. Grinde, Estell, Kenneth, editor, Native Sturtevant, William C., general Jr., The Encyclopedia of Native American Americans Information Directory, editor, Handbook of North American Biography, 1998, Da Capo Press, New 1998. Gale Research, Detroit. A guide Indians, Smithsonian Institution Press, York. Brief, alphabetically arranged to organizations, agencies, institutions, Washington, D.C. When complete, the biographies of Indians and of non-Indians programs, publications, services, and other handbook will consist of twenty volumes. who were important in Indian history, resources concerned with the indigenous A volume on each of the major culture from the early contact period through peoples of the United States and Canada. areas of North America is now available, the present day. Originally pub-lished by plus two topic volumes (languages, Indian- Hirschfelder, Arlene, & Martha Kreipe de Henry Holt & Co., 1997. white relations). Montaño (Prairie Band Potawatomi), The Lester, Patrick D., The Biographical Native American Almanac: A Portrait Tiller, Veronica E. Velarde, Tiller’s Guide Directory of Native American Painters, of Native America Today, 1998, John to Indian Country: Economic Profiles 1995, SIR Publications, Tulsa, Oklahoma. Wiley & Sons, Somerset, NJ. Includes of American Indian Reservations, Distributed by the University of Oklahoma information on Indian-white relations, 1996, 2005, BowArrow Publishing Co., Press, Norman. Foreword by Jeanne O. Native Americans today, treaties, tribal Albuquerque. Profiles of all U.S. Federal Snodgrass. Includes over 3,000 painters governments, languages, education, and State Indian Reservations, including working from 1800 to the present. Typical religion, games and sports, and Indians in the Alaska Native Corporations. Includes entries list the artist’s Tribal affiliation film and video. Also lists the addresses of information on economy, history, culture, and Tribal name, birth and death dates, all U.S. tribal governments. government, and community facilities. residence, publications, exhibits, awards Hoxie, Frederick E., editor, Encyclopedia Utter, Jack, American Indians: Answers and honors, supplemented by brief of North American Indians, 1996, to Today’s Questions, second edition, 2002, passages of human interest and excerpts Houghton Mifflin, Boston. Entries by over University of Oklahoma Press, Norman. from professional reviews and critical 260 contributors on a diverse assortment Lots of useful information in a Q & A essays. of topics, tribes, and individuals. format. Reno, Dawn, Contemporary Native Klein, Barry T., Reference Encyclopedia Waldman, Carl, Atlas of the North American Artists, 1995, Alliance of the American Indian, 12th edition, American Indian, with maps and Publishing, Brooklyn, NY. Brief profiles 2006, Todd Publications, Boca Raton, FL. illustrations by Molly Braun, 1985, revised of over 1,000 artists from over 100 Native Lists the names, addresses, and phone edition 2000, Facts on File, New York. American Nations. numbers of all U.S. Indian reservations Includes information on Indian history, Waldman, Carl, Who Was Who in Native and tribal councils, and of government past and present locations of peoples, a American History, 1990, Facts on File, agencies, Indian schools, national, state, chronology, and over 100 maps. New York. Brief, alphabetically arranged and local organizations, museums, biographies of Indians, and of non-Indians libraries, colleges, periodicals, and sources Waldman, Carl, Encyclopedia of who were important in Indian history, from of financial aid. Includes a section on Native American Tribes, 1988, revised the early contact period through 1900. Canadian organizations. edition1999, Checkmark Books (Facts on File), New York. Brief but detailed Russell, George L. (Saginaw Chippewa), alphabetically arranged listings for over American Indian Facts of Life, 2004, C.6. Reference 150 Native peoples, plus information on Native Data.Com, Phoenix. A brief, culture areas, language families, and Davis, Mary B., editor, Native America in useful digest emphasizing con-temporary prehistoric Indian cultures. the Twentieth Century: An Encyclopedia, demographics. Also available from Native 1994, 1996, Garland Publishing, New Data.com is an information-packed wall York. A comprehensive reference work on map of Indian country today. Native Americans in the twentieth century, C.7. Religion Swanton, John R., The Indian Tribes of the encyclopedia includes signed articles Hirschfelder, Arlene, & Paulette Molin, North America, 1952, reprinted 1969, authored by Native Americans and other The Encyclopedia of Native American 1979, Smithsonian Institution Press, experts on contemporary tribes and issues Religions: An Introduction, updated Washington, D.C. A detailed study of of importance to Indians living in today’s edition, 2000, Facts on File Publications, North American tribes, arranged by State. world. Arranged alphabetically, entries New York. Foreword by Walter R. Especially useful for the reader who wants range from short articles on small groups Echo-Hawk. Includes information on to know what Indian nation occupied to detailed discussions of larger groups. ceremonies, individuals, places, and a specific region of a given State at a Subject entries--health, education, art, concepts from Native American groups particular time. government policy, and economic issues, throughout North America. for example--are also included. The encyclopedia is thoroughly indexed. 74 / Tribal Consultation Handbook C.8. Other Native American Indian Country Today American Indian Higher Education Interest Tribal Consultation Handbook / 75 This focus is based on the Native American Environmental Appendix D: Training government’s trust responsibility to & Cultural Resources Training: A Opportunities Tribes to ensure that consultation and Cross-Cultural Immersion Course coordination with Tribes takes place as the Service works to carry out its The Department of the Interior’s Participants will have the unique mission. This national training model Policy on Consultation with Indian opportunity to camp out on has the flexibility to accommodate Tribes (Appendix B.16), requires the reservation lands with Native for regional perspectives, with an Department, through DOI University, American instructors. Traditional opportunity to educate staff in a and collaboration with Bureau and cultural uses of natural resources much more coherent and consistent Offices, to develop and design training will be emphasized with hands-on manner which would result in greater to facilitate implementation of the DOI activities, meals, and facilities. Policy on Consultation with Indian organizational fluency. Tribes. The DOI University web site is Costs range from $1,700 to $2,100 per Curriculum and Contents of the located at; LDK Associates: offers classes on working with Tribes. 76 / Tribal Consultation Handbook Appendix E: Sample Letter to Tribe(s) E.1. Sample Letter to Tribe(s) Seeking Advice on How to Consult Dear [Honorable Tribal Leader(s)], The purpose of this letter is to seek your advice on how the US Fish and Wildlife Service (Service) can best consult with your Tribe during [describe the action: policy development process, proposal, or project]. The Service is now developing the [policy development process, proposal, or project]. The Service wishes to work with Tribal governments to develop sustainable processes for government-to-government consultation. We intend to conduct our efforts with sensitivity to the needs and culture of Tribes and with attention to the impact of our actions on tribal self-government. We recognize that one Tribe does not speak for another, and that there is no single voice for all Tribes. Our goal, therefore, is to reach as many Tribes as possible through a consultation process. We note that resource constraints upon the Tribes and the Service make consultation with all tribal governments an enormous challenge. The Service will share information in a timely, open and continuing manner and facilitate tribal participation as much as possible. We will strive to clearly define our objectives, statutory requirements and the limitations on our activities. In recognition of the practical realities of undertaking this effort, we are asking for your help in developing these processes. The Service is considering several ways to consult with Tribes, such as calling tribal contacts directly, or meeting at workshops and national tribal meetings across the United States. Also, to develop a communication strategy, the Service is considering electronic mailings, publishing articles in Indian Country newsletters, mailing information to tribal governments and posting materials on the Service’s Native American Liaison Web site. Please let us know of other particular mechanisms of communication that could be used between your Tribe and the Service. We are including below a list of various options for consultation processes as well as requested information that will help us engage in meaningful consultation. The input received will be invaluable to the Service in developing a consultation process which will best serve both Tribal needs and our requirements. The process will be developed in accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and will facilitate further coordination. List of Requested Information and Options for Consultation Processes Please let us know which (include all that your Tribe would consider suitable) options your Tribe would prefer for input on the [policy development process, proposal, or project] and for future consultations: ■■Direct call with appropriate tribal contact. ■■Electronic mailings with appropriate Tribal contact. ■■Participating in tribal workshops/stakeholder meetings. ■■Publish articles in Indian Country newsletters, asking for comment. ■■Mail information to tribal governments/natural resources staff/ cultural resources staff, asking for comment. ■■Post materials on Service Native American Liaison web site, asking for comment. If you have other recommended options for the consultation process, please send them to the Office of the Native American Liaison as well. Tribal Consultation Handbook / 77 Other Considerations ■■Would you prefer a meeting if it could be arranged, and where? ■■What level of Service management do you require at a meeting? ■■How much lead time prior to the meeting would you like? ■■Do you have a specific person we could talk to on a regular basis regarding the Tribal rule? Please send us their name, phone number, fax number, e-mail address (if available), and mailing address. Additionally, please let us know if there are multiple Tribal jurisdictions with which we should coordinate for consultation, providing the same information as the previous item in the list. We encourage you or your staff to respond with ideas and recommendations on how to develop the consultation process. Please provide your response by either mail, email, or fax to us at [contact information] by [set reasonable date 30-60 days, but follow up with calls]. We thank you in advance for taking the time to advise us on how the Service can best consult with your Tribe. Sincerely, Director (or Regional Director) cc: [Name], Cultural Resources, w/attachments [Name], Tribal Natural Resources, w/ attachments 78 / Tribal Consultation Handbook Appendix E (Cont.): E.2. Sample Letter to Tribe(s) Inviting Consultation on a Proposed Service Action Dear [Honorable Tribal Leader(s)], In the spirit of Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), Department of the Interior Policy on Consultation with Indian Tribes, [Note: If Appropriate, Also Add: Secretarial Order 3206 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act)], and the U.S. Fish and Wildlife Service’s (Service) Native American Policy, the Service would like to offer the opportunity for Tribes to consult with us and seek input on [Briefly Describe the Type of Action(s), Policy Development or Rule Making, etc., Here] that may have Tribal implication. [Describe the Type of Action(s), Policy Development or Rule Making, etc., Here in More Detail] We look forward to discussing our [Insert Action Title] with you further. If you would like to meet or consult on this matter, or would like to submit written feedback on our [Insert Action Title], or have any questions, please contact [Insert Headquarters or Regional Contact]. Sincerely, Director (or Regional Director) Attachment [If Necessary] cc: [Insert Name], Tribal Cultural Resources, w/attachments [Insert Name], Tribal Natural Resources, w/ attachments Tribal Consultation Handbook / 79 Appendix E (Cont.): E.3. Sample Letter to Tribe(s) Inviting Consultation Under Section 106 of the National Historic Preservation Act on a Service Project Dear [Honorable Tribal Leader(s)], The U.S. Fish and Wildlife Service (Service) invites the [Insert Name of Tribe(s)] to be a consulting party under Section 106 of the National Historic Preservation Act for the proposed [Insert Name of Project] at [Insert Geographic Location]. This project will involve [Insert Detailed Description of Project]. If the [Insert Name of Tribe] wishes to be a consulting party for the proposed [Insert Name of Project], the Service respectfully requests a response within 30 days of receipt of this letter. Upon request the Service can provide the [Insert Name of Tribe] with the opportunity to review and comment on the project designs. If the [Insert Name of Tribe] has any questions or need further information at this time, please contact [Insert Contact Information —Include E-mail and Telephone Number]. Sincerely, Regional Director (or, Assistant Regional Director or Project Leader) Attachment: cc: [Insert Name], Tribal Cultural Resources, w/attachments 80 / Tribal Consultation Handbook Appendix F: Examples of Statement of Relationship Documents Prepared by Reg. 2, U.S. FWS NOTE: Though the following examples of statement of relationship do not specifically address how the Service will consult with the particular Tribe, they do provide an understanding of how the Service will work with each referenced Tribe on a government-to-government basis. F.1. Statement of Relationship—Example 1: STATEMENT OF RELATIONSHIP Between the [Tribe’s name] and the U.S. Fish and Wildlife Service PURPOSE self-determination and economic tribal values. Other tribal resource Tribal and Service legal mandates, as self-sufficiency. management plans must conform applied by the Service, have appeared to the conservation guidelines and ■■The Tribe and the Service to conflict in the past, but both the practices established in the integrated acknowledge that delays in Tribe and the Service believe that a resource management plans. communication as well as unclear working relationship that reconciles lines of communication have led to ■■In the interim, the Tribe is the two within a bilateral government- problems in the past. The Tribe and preparing an Ecosystem Management to-government framework will reduce the Service agree that clarification Plan that addresses sensitive species, the potential for future conflicts. of this issue through implementation based on existing knowledge, active I. GUIDING PRECEPTS of the concepts contained in this conservation practices, and current statement will ensure early two-way management plans. The plan will ■■The Tribe and the Service have a interactions and will lead to productive be continuously enhanced with new common interest in promoting healthy resolution of issues of mutual concern. information obtained from ongoing ecosystems. surveys, habitat assessments, and ■■The Tribe and the Service agree other planning processes. ■■The Service recognizes the Tribe’s and recognize that this statement aboriginal rights, semi-sovereign and any process established by it do III. COMMUNICATION authority, and institutional capacity to not preempt or modify the respective self-manage the lands and resources rights and responsibilities of either ■■The government-to-government within the [Tribe’s name] Reservation entity. relationship requires working with as the self-sustaining homeland of the the [Tribe’s name] Government and its [Tribe’s name]. II. TRIBAL MANAGEMENT resource management authorities, including the sharing of technical ■■The Service’s technical expertise in ■■The Tribe is continuing to staffs and information, to address fish, wildlife, and plants establishes it institutionalize internal processes issues of mutual interest and as a significant resource for the Tribe’s for planning, review, regulation, and common concern. Both the Tribe management of the ecosystems and enforcement to ensure that economic and the Service recognize, however, associated sensitive species of the activity on its reservation is consistent that release of Tribal proprietary, Reservation. with traditional Apache values for commercial, and confidential living in balance with the natural information may be restricted by ■■The Service has a trust world. responsibility and is required to either the Tribe or the Service. ■■The Tribe will complete integrated consult with the Tribe, as articulated ■■While the Tribe and the Service in Executive Order No. 13175 by the resource management plans on a encourage open, informal discussion Secretary of the Interior, regarding watershed basis that promote tribal to facilitate proactive, cooperative any of its activities that may affect goals, including sustained yield. These efforts; formal communications the Tribe’s trust resources, and the plans will direct the assessment, follow the outline in Table 1. Mutual sustained yield of those resources. management, and restoration of agreement on communications with Such activities will support the Tribe’s ecosystems in accordance with Tribal Consultation Handbook / 81 outside parties will promote the which has decades of experience in into the Tribal Management Plan innovative and creative process that working with the Tribe to promote (TMP), which consists of the portions the Tribe and the Service have agreed healthy ecosystems, its focus on of the Ecosystem Management Plan to pursue. fisheries resources supports an and integrated resource management emphasis on sensitive habitats, plans which address sensitive species. ■■The Service and the Tribe and it enjoys close proximity to This activity will initially take the form acknowledge that the Tribe manages of lists of sensitive species, threats, access to and is responsible for the and extensive familiarity with the Reservation. and an assessment of commonality and safeguarding of information on tribal severity of the threats. ecosystems, flora, and fauna (including ■■The Gila-Salt-Verde (GSV) Federally endangered, threatened Ecoregion Team provides an avenue ■■The Service will notify the Tribe and candidate species). The Tribe will for the Service and the Tribe to upon initiation of formal or informal establish protocols for the safekeeping implement cooperative projects consultation with a Federal agency and dissemination of such information. to assess and restore sensitive regarding tribal lands as soon as it ecosystems in accordance with Tribal becomes aware of a request. ■■Whenever the Service considers a goals; in particular, the restoration change in the status of a species that ■■Active management and may exist on the Reservation now or of degraded riparian areas and the implementation of the TMP will in the future, it will promptly notify elimination of introduced species generally serve as the basis for the Tribe’s Endangered Species considered detrimental by the Tribe. Reasonable and Prudent Measures Coordinator. Concurrently, the The Service will invite the Tribe to and Alternatives arising from formal Service will indicate what scientific send representatives whenever the or informal consultations with Federal information it presently has, the Team meets to discuss goal-setting or agencies. nature of the Service’s concern, tasks for the types of ecosystems that and what additional information exist on the Reservation. ■■The Service and the Tribe will hold and management would render an annual conference on the TMP and IV. COORDINATION unwarranted the elevation of the its implementation. The conference species to a more protected status will be held to make year-to-year ■■Upon Tribal request, the Service changes and will include field visits or would encourage the delisting of will provide technical assistance on the the species. and requests for future technical maintenance of healthy ecosystems. assistance. ■■The Service’s Director of Region 2 Such assistance will normally be will be the contact person for cross- provided through the Gila-Salt-Verde ■■Adoption and implementation of the regional communications on any Ecoregion Team. TMP will normally mean no additional special management considerations Service activity that may affect the ■■The Service and the Tribe will Tribe and Tribal land management. or protection for sensitive species will cooperatively develop and propose be needed. ■■The Service’s primary contact point management practices based upon with the Tribe is the Arizona Fishery identified threats to sensitive species Resources Office in Pinetop, Arizona, and their habitats for incorporation DIRECTOR, U.S. FISH AND WILDLIFE SERVICE DATE [TRIBAL LEADER’S NAME AND TITLE] DATE 82 / Tribal Consultation Handbook Table 1: Matrix For Communications Issue Type [Tribe’s Name] Lead Contact* Service Lead Contact* Informal Discussion Any Any SCIENTIFIC AND MANAGEMENT ISSUES [Tribe’s name] Endangered Resources Office Species Coordinator Pinetop, AZ (602) 367-1953 ■■Technical assistance (602) 338-4385, ext. 12 ■■Requests for site visits Arizona Fishery ■■Requests for biological data ■■Species / Ecosystem management plans ■■Integrated resource management plans ■■Data management protocol ■■Cooperative projects with Ecoregion Team POLICY DEVELOPMENT (PRE-DECISION) [Tribe’s name] Director of John Rogers, Region 2 Planning and Developmental Director, ■■Intergovernmental agreements Services (602) 338-4346, ext. 213 (505) 766-2321 ■■Coordination of working group ■■Program funding LEGAL CONCERNS (PRE-DECISION) [Tribe’s name] Director of John Rogers, Region 2 Planning and Developmental Director ■■Potential FWS regulatory actions directly Services affecting the Tribe (e.g., listings, critical habitat, Regional Solicitor initiation of formal/informal consultations) [Tribe’s name] General Counsel Perry Mason ■■Potential Tribal governmental actions (602) 338-4346, ext. 410 directly affecting the Service ■■Requests for comments FORMAL DECISIONS BY TRIBE OR FWS [Tribe’s name] Tribal Chairman Mollie Beattie, Director, as (602) 338-1560 delegated to John Rogers ■■Final policy decisions, regulatory actions, findings from formal/informal consultations, or enforcement actions of direct concern to the Tribe or FWS *Or successor Tribal Consultation Handbook / 83 F.2. Statement of Relationship—Example 2: STATEMENT OF RELATIONSHIP Between the [Tribe’s name] and the U.S. Fish and Wildlife Service PURPOSE 5) The parties recognize The American 10) The Tribe and the Service The purpose of this document is to set Indian Religious Freedom Act (P.L. recognize that this statement does forth a new framework for a working 95-341) which states, in part, that not preempt or modify the respective relationship between the [Tribe] (Tribe) the United States shall protect and rights and responsibilities of either and the U.S. Fish and Wildlife Service preserve for the American Indian entity nor does it affect the Tribe’s (Service) in order to avoid conflicts their inherent right of freedom to inherent authority to manage its lands concerning the management of fish believe, express, and exercise the and resources. and wildlife. traditional religions of the American Indian....including but not limited to TRIBAL FISH AND WILDLIFE MANAGEMENT The Statement of Relationship access to sites, use and possession 1) The Tribe has prepared and is recognizes [Tribe] autonomy of sacred objects, and the freedom implementing a [Tribe] Natural and works within the context of to worship through ceremonial and Resources Development Plan and a government to government traditional rites. is practicing integrated resource relationship which exists between the management that protect fish and United States and the [Tribe]. 6) The Tribe has the most intimate wildlife and other natural resources, knowledge of species locations, while at the same time protecting GUIDING PRINCIPLES AND DEFINITIONS population health, and, in many cases, [Tribe] cultural beliefs and values. 1) The Tribe and the Service share management requirements for species a common goal of responsible occurring on [Tribe] lands. 2) Both parties acknowledge that the and sustainable management of tribe will be the primary manager of natural resources and ecosystems, 7) The Service has expertise in the fish and wildlife resources on tribal maintaining healthy populations area of fish and wildlife management lands and will maintain and hold of plant and animal species, and and can provide important technical records concerning fish and wildlife protecting sensitive species. assistance to the Tribe, subject to the species and management. The Tribe availability of resources. will, upon written request, share this 2) The Service recognizes the information with the Service in such Tribe’s authority to self-government 8) As a U.S. Government and cases where it does not compromise and ability to self-manage lands Department of the Interior Agency, tribal proprietary or confidential and natural resources within the the Service has a trust responsibility cultural or religious information. The boundaries of the [Tribe] Reservation. to assist the Tribe in caring for fish, Tribe will establish safeguards for wildlife, plants, and other natural safekeeping and disseminating this 3) The Service will comply with the resources as articulated in Interior information. The information that is intent of the Native American Policy, Secretarial Order No. 3175 concerning collected by the Tribe is not subject dated and signed June 24, 1993, by the Department responsibilities for Indian to Federal Freedom of Information Director of the Service, concerning its Trust Resources, signed November 8, Act Requests, provided that the commitment to assist Native American 1993. information was collected using tribal Governments in the conservation of funds and is maintained with the fish and wildlife resources. 9) [Tribe] management of fish, wildlife, Tribe. plants and other natural resources, 4) The parties recognize, support, while in accordance with many 3) The Service and Tribe will seek and will comply with the Secretarial of the same principles as Federal appropriate and mutually acceptable Order #3206, dated and signed management of these resources, is means to manage the sustainable use June 5, 1997 by the Secretary of the at times guided by different goals of, and monitor the populations and Interior, concerning American Indian and concerns than those of the U.S. population trends of, certain species of Tribal Rights, Federal-Tribal Trust Government and the Service. wildlife for [Tribe] religious purposes. Responsibilities, and the Endangered Species Act. 84 / Tribal Consultation Handbook FISH AND WILDLIFE LAW ENFORCEMENT COMMUNICATION COORDINATION 1) The Tribe and the Service have 1) The Tribe and the Service agree 1) Upon request by the Tribe, entered into a Memorandum of to work together to implement the the Service will provide technical Agreement for Cooperative Law precepts of this relationship and assistance to manage fish, wildlife, Enforcement through which the encourage open discussion on the best sensitive species, migratory birds, Regional Director of the Service may ways to implement this agreement or any other fish or wildlife species delegate to certain designated Tribal for which the Tribe does not have the law enforcement officers authority 2) Formal discussion for the technical capabilities or knowledge. to enforce enumerated Federal implementation of this agreement laws that address the protection and the continued management of fish 2) The Service and the Tribe will and conservation of fish, wildlife and wildlife on [Tribe] land will take cooperatively develop management and natural resources within the place at regular, agree-upon intervals. practices for fish and wildlife based jurisdiction of the Tribe. Regional Informal discussions or consultations on accepted wildlife management Director delegation of Federal will take place at any time if either of practices. wildlife conservation law enforcement the parties desires more information authority will be contingent upon the or clarification. 3) The Service and the Tribe will qualifications of the designated Tribal hold yearly meetings to update this law enforcement officers. 3) Whenever the Service considers agreement and discuss changes or a change in the status of species modifications based on the experiences 2) Likewise, after approval by the that may exist on [Tribe] land, it will of the preceding year. Tribal Council, the Governor of the promptly notify the Tribe. The Service Tribe will delegate the authority will also indicate what scientific 4) The Service will assist the Tribe in to enforce certain tribal laws and or other information is available identifying avenues of funding, outside regulations for the protection and concerning the species, the nature the Service, to implement the precepts conservation of wildlife and natural of the Service’s concern, and what in this Statement of Relationship. resources to designated Service law additional information would assist in enforcement officers. the management of the species. REGIONAL DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, REGION 2 DATE [TRIBAL LEADER] [TRIBE] DATE Tribal Consultation Handbook / 85 F.3. Confidential and Proprietary Information Agreement—Example Note: Nothing in this Agreement below shall be deemed to affect the Service’s obligations under the Privacy Act or the Freedom of Information Act (FOIA), or the Service’s ability to continue to assert FOIA exemptions with regard to FOIA requests CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT Between the [Name Of Tribe] Tribe and the U.S. Fish and Wildlife Service Preamble pursuant to the trust obligations of ■■location and nature of sites of The [name of Tribe] Tribe (hereinafter the United States to the Tribe, both traditional cultural significance to referred to as the “Tribe”), a federally the Tribe and the Service desire the Tribe; recognized Indian Tribe, has the to establish a protocol to facilitate sharing of information while ensuring ■■Information that the Tribe would inherent authority to develop codes not customarily release to the general and regulations to protect natural that tribal proprietary, commercial, and other confidential information is public; and Information gathered on resources on its Tribal lands. The Tribal Lands. Tribe also has the authority to develop protected. and enter into agreements with other Terms b. “Information” means any verbal, agencies and entities in order to visual, pictorial, specimen, graphic, promote, protect, enhance, and pursue electronically-stored, printed, 1. DEFINITIONS effective management of its natural recorded, or written material acquired resources. The Tribe has authority to a. “Confidential Tribal Information” from the Tribe or other person or manage access to and to safeguard means all information that is religious, entity or obtained in any other way information about tribal lands, cultural, ceremonial, proprietary, and includes, but is not limited to resources, and ecosystems, and their financial, technical, commercial, reports, summaries, data, maps, associated flora and fauna. privileged, sensitive or confidential photographs, correspondence, phone in nature or content or that relates to call records, audio or video recordings, The Tribe has begun a process to natural resources, cultural resources, and any other information pertaining formalize steps to restore and manage or resource management practices to the Tribe or its property, assets, or the Rio Grande ecosystem within of the Tribe, and includes, but is not interests, including information in the Tribal lands. limited to, Information pertaining to: custody of the Service. ■■the [common name of species— The Tribe, through its Natural 2. SCOPE Example:] Rio Grande Silvery Resources Department, and the U.S. This Agreement applies to all offices, Fish and Wildlife Service (hereinafter Minnow, the Southwestern Willow Flycatcher or any federally personnel, agents, consultants and referred to as the “Service”) anticipate contractors of the Service in the cooperating in conducting surveys, threatened, endangered, or candidate species; collection, receipt, possession, use, habitat assessments, and restoration review, disclosure, or dissemination projects in the Rio Grande on tribal ■■habitat or ecosystem conditions on of Confidential Tribal Information. lands. The Native American Policy of Tribal lands; the Service states that information 3. RESTRICTIONS ON ACCESS AND obtained from tribal governments ■■water quality of the Tribe’s water INFORMATION COLLECTION resources, including surface water will not be shared or released without a. Nothing in this Agreement shall be and groundwater; the Tribe’s consent or as required construed to authorize access to Tribal by law, including information ■■water quantity and inventory of the Lands or collection of Confidential obtained from tribal governments Tribe’s water resources, including Tribal Information. The Service may and information generated by the surface water and groundwater; be allowed to access Tribal lands or Service through technical assistance collect Information only upon written to tribal governments. As set forth ■■commercial activities of the Tribe; authorization by the Tribal Council or in this Confidential and Proprietary ■■natural resource management the [Chief, Chairman, Governor] of the Information Agreement (hereinafter practices or plans of the Tribe; Tribe, and shall be accompanied at all referred to as the “Agreement”) and times by an authorized representative 86 / Tribal Consultation Handbook designated by the Tribe. Such shall provide an opportunity for review the specified Information authorization may include additional the Tribe to review and consult on at the Tribe’s Natural Resources conditions beyond those in this a draft of any document containing Department (or any successor Tribal Agreement. Confidential Tribal Information prior department with responsibility for to its disclosure or completion as a implementing this agreement, such b. Upon execution of this Agreement final document. as a Resource Protection Office) by by both parties, the Tribe and the prior appointment with the Primary Service will each designate a Primary 5. DISCLOSURE OF CONFIDENTIAL Contact Person designated pursuant Contact Person to coordinate any TRIBAL INFORMATION to Paragraph 3.b of this Agreement. authorized field activities and a. The Service shall keep all Information requests. Confidential Tribal Information c. Upon the written approval by the confidential, and shall not disclose any [Chief, Chairman, Governor] or Tribal c. Prior to contractors or agents Confidential Tribal Information in Council of an official, specific written of the Service entering onto the any manner whatsoever, in whole or request by the Service to remove Tribe’s land or obtaining access to in part, to any person or entity, except Confidential Tribal Information from Confidential Tribal Information, the disclosures: Tribal lands, the Service may remove Service shall provide the Tribe a Confidential Tribal Information from copy of an agreement, in the form of i. to another person approved in Tribal lands to carry out Tribally- Exhibit A, signed by an authorized writing by the [Chief, Chairman, authorized purposes so long as: representative of said contractor or Governor] or the Tribal Council (1) only those Service personnel agent, confirming that said contractor upon the receipt by the Tribe and specifically authorized by the Tribe or agent acknowledges and agrees the Service of a Confidentiality to review the Information shall have that the obligations of the Service Agreement acceptable to the Tribe access to it and the Service will under this Agreement apply to said and the Service executed by the take every precaution to secure the contractor or agent. person; confidentiality of the Information; (2) the Information shall not be d. The Service shall not collect ii. as otherwise required by law or photocopied, digitally copied, or Confidential Tribal Information legal process; or reproduced in any other manner relating to the location, nature, iii. as otherwise authorized by the without prior written consent of the description, or use of any sacred site Tribal Council. Governor or Tribal Council; (3) the or other cultural resource of the Tribe. Service will maintain and provide b. The requirements of this Paragraph to the Tribe a written record of all 4. USE OF CONFIDENTIAL TRIBAL shall not extend to any portion of the INFORMATION such Information including without confidential Tribal Information that limitation the date of removal, a. Confidential Tribal Information is or becomes generally available to shall be used by the Service solely for description of the Information, name the public other than as a result of a of individual removing Information, purposes authorized by the [Chief, disclosure by the Service. Chairman, Governor] or Tribal Council the purpose and justification, and the date of return; (4) the Information will in writing. Under no circumstances 6. RESTRICTION ON REMOVAL OF not be removed for a period longer shall the Service use Confidential CONFIDENTIAL TRIBAL INFORMATION Tribal Information in any way that FROM TRIBAL LANDS than 15 to 30 days unless otherwise is detrimental to the Tribe, including a. All Confidential Tribal Information specified by the Tribe; and (5) the without limitation, to the competitive shall remain the exclusive property Service shall return all information, disadvantage of the Tribe. of the Tribe and shall not be removed including copies, to the Tribe upon from the Tribe’s land except by prior completion of the authorized purpose b. The Service shall not copy, cite, or authorization pursuant to Paragraphs or the authorized period, whichever is incorporate any Confidential Tribal 6.b or 6.c of this Agreement. sooner. The Tribe shall also have the Information in any document or right to request the immediate return publication without obtaining prior b. Upon the written approval by of any and all Information at any time, written consent from the [Chief, the [Chief, Chairman, Governor] and the Service shall immediately Chairman, Governor] or Tribal Council or Tribal Council of an official, return it. All Information shall remain for either the use of such Information specific written request by the the property of the Tribe, and not of or the use of certain redacted or Service to review Confidential the Service. summarized Information. The Service Tribal Information, the Service may Tribal Consultation Handbook / 87 d. The Tribe may develop redacted Confidential Tribal Information has c. This Agreement shall not be versions or summaries of Confidential been furnished to the Service subject construed to grant, expand, Tribal Information and, by explicit to and in consideration of the Service’s create, or diminish any legally written approval by the Tribal Council agreement to keep the Information enforceable rights, benefits or trust or [Chief, Chairman, Governor], confidential as intended herein. While responsibilities, substantive or authorize the Service to retain or the Tribe will endeavor to mark procedural, not otherwise granted publish such Information in the potentially sensitive information or created under existing law. Nor public record or in other documents. “confidential,” “restricted” or with shall this Agreement be construed However, providing such Information other similar markings, the absence of to alter, amend, repeal, interpret or in this or any other form does such markings shall not be construed modify the Tribe’s status, any treaty not indicate that similar or like to mean that the Information is not rights, or other rights of the Tribe or Information would customarily be Confidential Tribal Information. preempt, modify or limit the exercise released to the public by the Tribe. of any such rights. 9. EFFECTIVE DATE AND DURATION 7. AUDIO AND VIDEO RECORDING AND OF AGREEMENT AND OBLIGATION OF d. Nothing in this Agreement shall be PHOTOGRAPHY CONTRACTORS applied to authorize take of species The Service is not permitted to a. The Service agrees that its listed pursuant to the Endangered make audio or video recordings or obligations hereunder were, are, or Species Act of 1973, or any activity to take photographs without the shall be effective as of the first date that would jeopardize the continued prior written permission of the on which the Service first had, has, or existence of any listed species [Chief, Chairman, Governor] Tribal shall have access to any Confidential or destroy or adversely modify Council and in the presence of a Tribal Information or prior to entering designated critical habitat. Tribal representative designated by onto the Tribe’s land. the [Chief, Chairman, Governor] or e. Consistent with the requirements Tribal Council. Contractors of the b. This Agreement may be terminated of the Anti-Deficiency Act, the Service shall not be permitted to upon written notice. The obligations expenditure of any money or the take photographs or make audio and of the Service hereunder shall survive performance of any obligation by the video recordings. All photographs the term of this Agreement and shall United States under this Agreement and audio and video recordings continue indefinitely. shall be contingent upon appropriation or allotment of funds. shall be returned to the Tribe, and c. This Agreement may be amended the Service shall not keep copies of by written agreement between the 11. LAW TO BE APPLIED returned photographs and audio and parties. video recordings. Notwithstanding This Agreement shall be construed in accordance with the laws of the United the foregoing, the Service may retain 10. LIMITATIONS States. certain photographs or audio or video a. This Agreement does not authorize recordings upon written request by the expenditure or exchange of funds 12. ENTIRE AGREEMENT the Service and written approval between the parties. of the [Chief, Chairman, Governor] This Agreement sets forth the entire or Tribal Council for the specified b. Nothing in this Agreement shall agreement with respect to the subject photographs or recordings. be deemed to affect the Service’s matter hereof. The parties hereto have obligations under the Privacy Act executed this Agreement as of the 8. ACKNOWLEDGMENT BY THE SERVICE or the Freedom of Information Act latter date written below. The Service acknowledges that serious (FOIA), or the Service’s ability to damage could result to the Tribe if any continue to assert FOIA exemptions of the Confidential Tribal Information with regard to FOIA requests. is disclosed to any third party other than as provided herein and that such REGIONAL DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, REGION 2 DATE [TRIBAL LEADER’S TITLE AND FULL NAME] [TRIBE] DATE 88 / Tribal Consultation Handbook Appendix G: Contact List for Service Native American Liaisons Region States Native American Liaison Address Updated as of October 2017 Region 1 Hawaii, Idaho, Oregon, Nathan Dexter U.S. Fish and Wildlife Service and Washington [email protected] Eastside Federal Complex T: (503) 736-4774 911 N.E. 11th Avenue F: (503) 231-2122 Portland, OR 97232-4181 Region 2 Arizona, New Mexico, Joseph Early U.S. Fish and Wildlife Service Oklahoma, and Texas [email protected] 500 Gold Avenue SW T: (505) 248-6602 P.O. Box 1306 F: (505) 248-6915 Albuquerque, NM 87103 Region 3 Illinois, Indiana, Iowa, Michigan, Chuck Traxler U.S. Fish and Wildlife Service Minnesota, Missouri, Ohio, and [email protected] 5600 American Blvd. West, Suite 990 Wisconsin T: (612) 713-5311 F: (612) 713-5280 Bloomington, MN 55437-1458 Region 4 Alabama, Arkansas, Florida, Tim Binzen U.S. Fish and Wildlife Service Georgia, Kentucky, Louisiana, [email protected] 300 Westgate Center Drive Mississippi, North Carolina, T: (413) 253-8731 Hadley, MA 01035 South Carolina, and Tennessee F: (413) 253-8456 Region 5 Connecticut, Delaware, Tim Binzen U.S. Fish and Wildlife Service Washington D.C. Columbia, Maine, T: (413) 253-8731 300 Westgate Center Drive Maryland, Massachusetts, New F: (413) 253-8456 Hadley, MA 01035 Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia Region 6 Colorado, Kansas, Montana, Anna Munoz U.S. Fish and Wildlife Service Nebraska, North Dakota, South [email protected] 134 Union Blvd., P.O. Box 25486 Dakota, Utah, and Wyoming T: (303) 236-4510 F: (303) 236-3815 Denver, CO 80225 Region 7 Alaska Crystal Leonetti U.S. Fish and Wildlife Service [email protected] 1011 East Tudor Road MS-101 T: (907) 786-3868 F: (907) 786-3306 Anchorage, AK 99503 Region 8 California and Nevada Richard Adkins U.S. Fish and Wildlife Service [email protected] Habitat Restoration Division T: (916) 532-5327 2800 Cottage Way F: (916) 414-6512 Sacramento, CA 95825 WO Washington Office Scott Aikin, [email protected] U.S. Fish and Wildlife Service National Native American Programs Coordinator 8510 NE 69th Street T: (360) 604-2531 F: (360) 604-2505 Vancouver, WA 98683 D.J. Monette, [email protected] U.S. Fish and Wildlife Service Associate Native American Liaison Advisor 300 Westgate Center Drive T: (413) 244-4495 Hadley, MA 01035 Linda Friar, [email protected] U.S. Fish and Wildlife Service Fisheries Tribal Liaison Fish and Equatic 5275 Leesburg Pike Conservation Falls Church, VA 22041 T: (703) 358-2056 F: (703) 358-2487 January Johnson, [email protected] U.S. Fish and Wildlife Service Migratory Bird Tribal Liaison / FOIA Specialist 5275 Leesburg Pike Migratory Bird Program Falls Church, VA 22041 T: (703) 358-2006 F: (703) 358-2282 Tribal Consultation Handbook / 89 U.S. Fish and Wildlife Service fws.gov/nativeamerican 1/800 344 WILD October 2018 USFWS