Legal Requirements of Consultation with Tribes

Legal Requirements of Consultation with Tribes The legal obligation of Federal Agencies to consult with Tribes on a government-to-government basis begins in the Constitution, in Article I Section 8, also known as the Commerce Clause, where Congress is empowered to regulate commerce with foreign governments, between the states and with the Indian Tribes. In Federal Indian policy, it is unclear whether Tribes are more like foreign nations or like states, but clearly, the government of the United States has an obligation to consult with Tribes as sovereign nations on matters of interest and concern to Tribes. The constitutional mandate is expressed in statutes, executive orders and the policies of the several Federal Agencies that touch upon Tribal matters. In brief these are: 1. NHPA requires consultation with Indian Tribes on places of traditional religious and cultural significance, in identifying and determining treatment modalities within the area of potential effect of an undertaking. Consultation is also required with Tribes that have assumed historic preservation duties as THPOs for sites on Tribal land and with Tribes on the mitigation of effects to historic and sacred places on federal land. Section 101(d)(6)(B) of the act requires the Agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Such Indian tribe or Native Hawaiian organization shall be a consulting party. 2. National Environmental Policy Act (NEPA) is directed at the impacts to the human environment, which includes the social and cultural relationship of people to the physical environment. Under this law there is an obligation to consult with Tribes concerning impacts to sacred sites and on the mitigation of actions to sites of concern to Tribes that is not limited by the National Register eligibility criteria (36 C.F.R.60.4) 3. Archaeological Resources Protection Act (ARPA) is a law directed at protecting “archaeological” sites for the important information that can be retrieved, but the law also requires Federal Agencies to notify Tribes of a permit for excavation on federal land that will include sites of religious or cultural importance to Tribes. On Indian lands, the federal Agency must have the permission of the Tribe to issue an ARPA permit. The federal government has an obligation to keep track of such items when excavated pursuant to a permit in the event that the “Indian owners” may want to retrieve them. All fines and civil penalties collected and all items seized from ARPA civil and criminal prosecutions arising from incidents on Indian lands must be remitted to the Tribe. The costs of reburial of human remains and funerary objects disrupted by looters will be added to the restitution sought from violators. 4. Native American Graves Protection and Repatriation Act (NAGPRA) requires that a general summary of the collection be disseminated to all possibly interested Tribes to facilitate consultation which can lead to the repatriation and to assist in the preparation of an itemized inventory of human remains and associated funerary items. On federal land, Agencies that do not consult with Tribes prior to exhumation of sites of importance to Tribes and develop an agreement for “Intentional Excavation,” are punished by a mandatory 30 day cessation of work for each “Inadvertent Discovery,” that is a find in the absence of a plan arrived at through consultation with the impacted Tribes. Consultation is also required to determine the means of transfer of repatriated items. 5. Executive Order 12875 (1993) Tribal Governance, specifies that the federal government must consult with Indian Tribal governments on matters that significantly or uniquely affect Tribal government. By Executive Memorandum of April 29, 1994, the federal government must consult with federally-recognized Tribal governments prior to taking actions that will affect those Tribal governments (See below for the current administration’s Executive Memorandum on the Government-to-Government Relationship). 6. Executive Order 12898 (1994) Environmental Justice, specifies that the federal Agency will consult with Tribal leaders on steps to be taken to insure that environmental justice requirements are applied to federally-recognized Tribes. This includes research to address issues of adverse environmental impact in areas of low-income and minority populations, which include Tribes generally and with regard to subsistence consumption of fish and wildlife, which pertain to Tribes exclusively. 7. Executive Order 13007 (1996) Sacred Sites, applies on federal land and directs the Federal Agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners, as well as to avoid adversely affecting the physical integrity of such sacred sites. Although Federal Agencies must consult with Tribes to learn the existence of places, which require management decisions to be made, the directive requires Agencies to maintain the confidentiality of sacred sites where appropriate for their protection. 8. Executive Order 13084 (1998) Consultation and Coordination with Indian Tribal Governments, reaffirms the unique government-to-government relationship between Agencies and Tribes. The Order makes it clear that the obligation is upon the federal government and not the Tribes to instigate and insure that consultation occurs on a timely basis. The consultation is defined as an activity to obtain meaningful and timely input from Tribes on matters that significantly or uniquely affect Tribal communities. In those instances where Tribal laws exist, the Federal Agencies are to defer to Tribes and waive Agency control. Further, rulemaking on matters of concern to Tribes should include consultation with Tribes, necessitating the development of consensual mechanisms to arrive at agreements. This Executive Order embodies the complete shift in the enfranchised status of Tribes in the post-1960 era of Tribal self-determination and sovereignty. (Superseded by E.O. 13175) 9. Executive Order 13175 (2000) Consultation with Indian Tribal Governments, would seem redundant, but appeared necessary where Agencies were slow to develop Tribal consultation policies and the courts were slow to enfranchise Tribes. This Order firmly establishes the policy of the administrative branch of government as one that institutionalizes regular and meaningful consultation with Tribes in the development of federal policies affecting Tribes. It directs that Agencies respect treaty rights and grants wide discretion to Tribes in self-governance and the development of Tribal policy. Further, this Order directs each Agency to develop a consultation process. • Executive Memorandum, Government-to-Government Relationship with Tribal Governments, (September 2004), recognizes the unique legal and political relationship of Tribes, and reaffirms that each executive department and Agency fully respect the rights of self- government and self-determination in their working relationships with federally- recognized Tribal governments.