The U.S. Department of the Interior, U.S. Department of the Army, and U.S. Department of Justice have released the report “Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions.”

From the Report:

I. Executive Summary

Over the past eight years, the Obama Administration has made historic progress to strengthen the government-to-government relationship between the United States (United States or U.S.) and Federally-recognized Indian Tribes (Tribes or Indian Tribes) and to better fulfill the United States’ trust responsibility to Tribes. In addition to creation of the White House Council on Native American Affairs, restoring Tribal homelands, and settling historic disputes, this Administration has prioritized Tribal consultation as a method for considering how Federal policies and decision-making processes affect the interests of Tribes and their members. With regard to infrastructure projects, historically Federal agencies have not, as a matter of policy, sought out Tribal input or consistently worked to integrate Tribal concerns into the project approval processes; Tribal consultation is a way to rectify this by recognizing the government-to- government relationship and taking Tribal interests into account from the start.

Investment in our Nation’s infrastructure has also been a priority of the Obama Administration. The lack of 21st century infrastructure is particularly apparent in Indian country. Whether it is running water, roads, housing, or broadband, Tribal communities are often the most in need. National proposals included calling for investments in a cleaner, more reliable transportation system that reduces our reliance on fossil fuels, cuts carbon pollution, and helps mitigate impacts of climate change; expanding collaboration across the public and private sectors; and calling for establishment of a National Infrastructure Bank. Since 2011, the Administration has undertaken an ambitious effort to modernize the Federal Government’s role in infrastructure permitting processes. Through a variety of actions, the Administration has sought to expedite the review and permitting of major infrastructure projects that will strengthen our Nation’s economy, create jobs, and improve our competitiveness in the international market.

Recognizing these priorities are interlinked, on September 23, 2016, the Department of the Interior, Department of Justice, and the Department of the Army issued a joint letter to Tribal Leaders committing to a broad review and consultation with Tribes on how Federal decision- making on infrastructure and related projects can better allow for timely and meaningful Tribal input. This Report, Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions, is the product of this government-to-government consultation and comments received from fifty-nine Tribes (and eight organizations representing Tribal interests) in October and November 2016. It reflects the start of a continuing nation-to-nation consultation that is needed to ensure that infrastructure projects are sited in a manner that lives up to the United States’ obligations to Tribes.

While each Tribe’s comments were unique to their respective experiences, Tribes spoke with one voice as to the need for improvement in how and when Federal agencies engage Tribes prior to authorizing or otherwise initiating Federal infrastructure decisions. Specifically, Tribes stated that Federal agencies are inconsistent in the degree to which each agency is aware of, and implements, its responsibilities to engage with Tribes as sovereigns in accordance with the government-to-government framework, the Federal relationship, and Tribal reserved rights through treaties and other legal authorities. Even where such rights and responsibilities are explicit in law, regulation, or policy, Tribes asserted that Federal agencies often fail to fully implement them.

Along these lines, Tribes further remarked that even the best-written agency Tribal consultation policies are often poorly implemented. Tribes noted that often agencies neither treat Tribes as sovereigns nor afford Tribes the respect they would any other governmental entity—let alone treat Tribes as those to whom the United States maintains a trust responsibility or as those who hold reserved rights through treaties that granted the United States vast amounts of territory. Tribes emphasized that the spirit with which consultation is conducted is essential, Tribes need to be consulted sooner, Federal staff need better training prior to working with Tribes, and that consultation should be more consistent across agencies.

In addition to these more general comments, Tribes also identified obstacles to their meaningful participation in Federal decision-making under specific statutes, and suggested changes in the language and/or implementation of these statutes. However, in doing so, Tribes also noted that they are not universally opposed to infrastructure investments. To the contrary, roads, broadband, transmission and energy resources are important to Tribal economies and economic development. Tribes emphatically said that they want to be part of the process from  the start, rather than being included only after relevant determinations have already been made or projects have already commenced. Tribes also objected to having to use the legal system as a way of making their voices heard. They noted that when infrastructure investments affect Tribal interests, these investments should also benefit Tribes so that Tribes have better access to broadband, better transportation, and cleaner, safer energy options, just like the rest of our Nation.

Based on Tribes’ input, this Report articulates a set of principles that should inform agency practices in the realm of infrastructure. Among other things, this includes appropriate staffing, training, and resource allocations, as well as guidance as to how Tribal interests should be incorporated into agency decision-making processes in both formal and informal ways. These recommendations should help agencies fulfill their dual responsibilities of complying with applicable treaty and trust responsibilities and ensuring a smooth runway for infrastructure investments.

This Report does not set forth a detailed discussion of each individual agency’s consultation policies and practices or make comprehensive recommendations for policy, management, or legislative action. Additional Tribal consultations must be held to fully shape such comprehensive recommendations. However, included in this Report are a handful of specific recommendations for agencies and agency actions underway. In addition, this Report recommends that each agency undertake a detailed analysis of its own Tribal consultation policies and practices, as well as relevant statutory authorities, in order to ensure that each agency’s decision-making processes honor the government-to-government relationship with Tribes and continue to fulfill the Federal trust responsibility to Tribes.

In analyzing their Tribal consultation policies and practices, agencies should examine whether the policies and practices are consistent with the recommendations of this Report.

Agencies should provide a written account of their findings to the White House Council on Native American Affairs (WHCNAA)2 and also make these findings available online no later than April 1, 2017. The WHCNAA and Federal agencies that have a role in improving the Federal infrastructure permitting processes may then review agency submissions and discuss Tribal consultation as a topic at its 2017 first quarter meeting. These agency submissions will also provide stakeholders and Congressional leaders with a sense of what statutory, regulatory, and funding barriers hinder agencies from improving Federal decision-making on infrastructure and related projects, identify next steps in improving and fully implementing robust Tribal consultation policies and practices, and inform efforts to advance infrastructure investments and agency Tribal consultation practices moving forward.

Read the full report.

Jennifer Morinigo

The American Law Institute


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