Policy on Consultation With Indian Tribes, 28446-28449 [2011-11971]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Notices]
[Pages 28446-28449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11971]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


Policy on Consultation With Indian Tribes

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed policy: Request for comments.

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SUMMARY: The Department of the Interior seeks comments on a proposed 
policy on consultation with Indian tribes. This policy would establish 
standards for improved consultation with Indian Tribes to the extent 
that a conflict does not exist with laws or regulations. It would apply 
to any Department action that affects Indian tribes and would require 
that the Department's government-to-government consultation involve 
appropriate Tribal and Departmental officials.

DATES: We will consider all comments received by July 18, 2011.

ADDRESSES: Submit comments by e-mail to consultation@doi.gov or by US 
mail to: Consultation Policy Comments, Department of the Interior, Room 
5129 MIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Kallie Hanley, Office of the 
Secretary, 202-208-5397 or kallie_hanley@ios.doi.gov.

SUPPLEMENTARY INFORMATION: 
    The Department of the Interior proposed policy on consultation with 
tribes is set forth below.

Department of the Interior Policy on Consultation With Indian Tribes

I. Preamble

    The obligation for Federal agencies to engage with Indian Tribes on 
a government-to-government basis is based on the U.S. Constitution, 
treaties, statutes, executive orders, and policies. Federal agencies 
meet that obligation through consultation with Indian Tribes. The 
Department of the Interior is committed to fulfilling its Tribal 
consultation obligations--whether directed by statute or administrative 
action such as Executive Order (EO) 13175 (Consultation and 
Coordination with Indian Tribal Governments) or other applicable 
Secretarial Orders or policies--by adhering to the framework described 
in this Policy. This Policy reflects the Department's highest 
commitment to the principles embodied in this Policy and the 
Secretary's support of Tribal sovereignty.
    The Department's Bureaus and Offices shall review their existing 
practices and revise them as needed to comply with the Department's 
Policy as described in this document. All Bureaus and Offices will 
report to the Secretary's designee on their efforts to comply with this 
Policy and as described in a companion Secretarial Order.

II. Guiding Principles

    This Policy broadly defines provisions for improving the 
Department's consultation processes with Indian Tribes to the extent 
that a conflict does not exist with applicable law or regulations. The 
Department recognizes and respects the distinct, unique, and individual 
cultural traditions and values of each Tribe.
    This Policy requires that the Department's government-to-government 
consultation involve the appropriate Tribal Officials and appropriate 
Departmental officials. The appropriate Departmental officials are 
knowledgeable about the matters at hand, are authorized to speak for 
Interior, and have delegated authority in the disposition and 
implementation of an action. The appropriate Departmental official will 
have an obligation to identify consulting parties early in the planning 
process and allow a reasonable opportunity for Indian Tribes to respond 
and participate as described in Section VII. Department officials will 
make the effort to fully participate in the consultation process, 
ensure continuity, and demonstrate commitment to the process. 
Communication will be open and transparent without compromising the 
rights of federally recognized Indian Tribes and the government-to-
government consultation process.
    Consultation is a deliberative process that aims to create 
effective collaboration and informed Federal decision-making where all 
parties share a goal of reaching a decision together and it creates an 
opportunity for equal input from all affected tribal governments. 
Consultation promotes an enhanced form of communication that emphasizes 
trust, respect, and shared responsibility and should be an open and 
free exchange of information. Federal consultation that is meaningful, 
effective, and conducted in good faith makes the Department's operation 
and governance practices more efficient. To that end, Bureaus or 
Offices will seek and promote cooperation and participation between 
agencies with overlapping jurisdiction, special expertise, or related 
responsibilities regarding a Departmental Action with Tribal 
Implications. Efficiencies that derive from including Indian Tribes in 
all stages of the Tribal consultation process and decision-making 
process help to ensure that future Federal action is achievable, 
comprehensive, long-lasting, and reflective of Tribal input.
    The United States has a long-standing and inter-governmental 
relationship with Indian Tribes. Appropriate consultation practices 
will honor the government-to-government relationship between Indian 
Tribes and the United States; and will comply with the Presidential 
Memorandum of November 5, 2009 that affirms this relationship and 
obligates the Department of the Interior to meet the spirit and intent 
of EO 13175.
    The Policy creates a framework for synchronizing the Department's 
consultation practices with its Bureaus and Offices.

III. Definitions

    Bureau or Office--As defined in the Department of the Interior 
Manual.
    Collaboration--The Department of the Interior working jointly with 
Indian Tribes to develop and implement positive solutions on 
Departmental Action with Tribal Implications.
    Consultation Policies--Those institutionalized policies established 
to comply with the procedures described in Section VII of this 
document.
    Departmental Action With Tribal Implications--Any Departmental 
regulation, rulemaking, policy, guidance, legislative proposal, grant 
funding formula changes, or operational activity that may have a 
substantial direct effect on an Indian Tribe, including but not limited 
to:
    1. Tribal cultural practices, lands, resources, or access to 
traditional areas of cultural or religious importance on Federally 
managed lands;
    2. The ability of an Indian Tribe to govern or provide services to 
its members; an Indian Tribe's relationship with the Department; or
    3. The distribution of responsibilities between the Department and 
Indian Tribes.
    This term does not include matters that are the subject of 
litigation or in settlement negotiations, or matters undertaken in 
accordance with an administrative or judicial order where the 
Department has no discretion with respect to consultation.

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    Indian Tribe or Tribe--Any 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.
    Tribal Consultation Team--The Secretary's designee has established 
and may develop a plan of action for the continued involvement of a 
joint Federal-Tribal Team including making recommendations on the 
implementation of this Policy.
    Tribal Governance Officer (TGO)--An individual designated by the 
Department to carry out responsibilities defined in this Policy.
    Tribal Liaison Officer (TLO)--One or more individuals designated by 
their Bureaus or Offices to carry out responsibilities defined in this 
Policy.
    Tribal Official--An Elected or appointed Tribal leader or official 
delegate designated in writing by an Indian Tribe.

IV. Accountability and Reporting

    Methods that ensure accountability and reporting are essential to 
regular and meaningful consultation. The heads of Bureaus and Offices 
will include in future annual performance plans of their employees 
appropriate performance measures consistent with this Policy.
    On an annual basis, Bureaus and Offices shall report to the 
Secretary the results of their efforts to promote consultation with 
Indian Tribes. Reporting is intended to be comprehensive and may 
include, but is not limited to, the scope of consultation efforts, the 
cost of these efforts, and the effectiveness of consultation 
activities. Bureaus and Offices should provide a comprehensive listing 
of the topics on which consultations were held, training, innovations, 
and the engagement of senior leadership in these efforts. Such reports 
should include feedback from Tribes with whom the Bureau or Office has 
consulted. Reports will account for the documents and correspondence 
with Indian Tribes to satisfy the Implementation of the Final Federal 
Action Stage described in Section VII or alternatively, summaries of 
such documents and correspondence with information concerning how the 
complete documents might be obtained. Methods of reporting may be a 
description of budget expenditures in the execution of consultation 
efforts, narratives describing significant consultation efforts, and 
anticipation of forthcoming consultation opportunities.
    The Secretary of the Interior will provide an annual report to 
Indian Tribes and may use the Department's website to share the 
reporting information, where appropriate.
    For Federal block grants that only Indian Tribes are eligible to 
receive and in compliance with Federal statutes, a Bureau or Office 
will take special care to disclose actions it has taken to consult with 
Indian Tribes in the development of formulas to administer the block 
grants.

V. Training

    Training will aim to improve the Department's capacity for 
promoting collaboration with Tribes and executing the consultation 
provisions of Section VII.
    The training will:
    A. Promote consultation, communication, collaboration, and other 
interaction with Tribes;
    B. Outline and reinforce the Department's duties concerning tribal 
interests;
    C. Describe the legal trust obligation of the Federal-Tribal 
relationship; and
    D. Transfer the knowledge, skills, and tools necessary for 
collaborative engagement to Tribal and Departmental staff engaged in 
the consultative process.
    The Department, through the Department of the Interior University 
(DOIU), in collaboration with Bureaus, Offices, Tribal colleges and 
universities, and other entities with Indian expertise, will develop 
and deliver training. The Department, through the DOIU, will develop 
required core competencies, which Bureaus and Offices may enhance 
through other appropriate sources of tribal expertise.
    This training will seek to enhance mutual understanding of cultural 
perspectives and administrative requirements between Tribal and Federal 
officials and to promote inter-governmental relationships. Tribal 
representatives are encouraged to participate in training along with 
federal employees.

VI. Innovative and Effective Consultation Practices

    The Department's leadership will strive to advance Federal 
consultation practices and to offer examples for innovation across the 
Administration. The Department will identify and seek to address 
impediments, both external and internal, to improving its consultation 
processes.
    In consultation with Tribes, the Department will develop a plan of 
action for the continued improvement of this policy and its 
implementation. This plan may include:
    A. Annual meetings between the Secretary and Tribes;
    B. Communicating through a regular gathering of Tribes to discuss 
improving consultation practices and procedures;
    C. Institutionalizing a joint Tribal-Federal consultation team that 
would meet periodically to identify improvements;
    D. Soliciting Tribes' evaluation of consultation practices and 
procedures.

VII. Consultation Guidelines

    Consultation guidelines are meant to establish uniform practices 
and common standards, which all Bureaus and Offices will use except 
when otherwise agreed to in writing by a Bureau or Office and Indian 
Tribe through an individual protocol conforming, to the extent 
possible, to the guidelines in this Section. Consultation and 
individual protocols will provide greater efficiency and transparency 
in Department practices in order to maximize Indian Tribes' 
participation. Departmental Actions with Tribal Implications that are 
regional or impact a limited number of Indian Tribes should be carried 
out in a manner consistent with this Policy while allowing discretion 
to employ only appropriate parts of this Section.
    A. Initiating Consultation. A Bureau or Office must notify the 
appropriate Indian Tribe(s) of the opportunity to consult when 
considering a Departmental Action with Tribal Implications. The Bureau 
or Office will strive to ensure that a notice is given at least 30 days 
prior to a scheduled consultation. If exceptional circumstances prevent 
notice within 30 days of the consultation, explanation for the 
abbreviated notification will be provided in the invitation letter. An 
Indian Tribe may request an extension for timelines associated with 
this Policy.
    Adequate notice entails providing a description of the topic(s) to 
be discussed, a timeline of the process, and possible outcomes. 
Notification of a consultation should include sufficient detail of the 
topic to be discussed to allow Tribal leaders an opportunity to fully 
engage in the consultation.
    Beginning at the Initial Planning Stage, see Section VII, Part E, 
Subsection 1, a Bureau or Office will consult with Indian Tribes on a 
Departmental Action with Tribal Implications.
    An Indian Tribe may request that the Department initiate 
consultation when the Tribe believes that a Bureau or Office is 
considering a Departmental Action with Tribal Implications. Requests 
should be made in writing to the Department's TGO and describe the 
specific Departmental Action with Tribal Implications. However, the 
fact

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that an Indian Tribe may choose not to engage the TGO does not relieve 
a Bureau or Office of its obligation to engage in consultation as 
described by this Policy. In the event that the Bureau or Office makes 
an attempt to initiate consultation and does not receive a response, 
the Bureau or Office should make reasonable and periodic efforts 
throughout the process to repeat the invitation. Reasonable efforts 
should be made to adequately document or memorialize these 
communications.
    B. Role of Tribal Governance Officer and Tribal Liaison Officer in 
Consultation Process.
    1. The Department will designate a TGO who will be located within 
the Department so that the position shall be accessible to Tribal 
Officials and so that the TGO will have access to the Secretary or 
Deputy Secretary to carry out the responsibilities defined in this 
Policy. These responsibilities shall include:
    a. Monitoring compliance with this Policy, EO 13175, and other 
Consultation Policies pertaining to government-to-government 
consultation;
    b. Serving as the Secretary's representative when requested to do 
so in matters pertaining to consultation;
    c. Promoting government-to-government consultation;
    d. Communicating and coordinating with TLOs concerning Bureau and 
Office compliance with this Policy;
    e. Encouraging Indian Tribes to request consultation directly with 
the appropriate Bureau or Office representative or the TLO, and helping 
to ensure the resolution of all requests;
    f. Implementing, in coordination with the TLOs, a reporting system 
to ensure that consultation efforts are documented and reported to the 
Secretary and to the Department's TGO for EO 13175; and
    g. Facilitating a government-to-government relationship that is 
honored by all parties in tribal consultations of national significance 
or involving multiple Bureaus or Offices.
    2. Each Bureau or Office will designate one or more TLOs whose 
responsibilities shall include:
    a. Working with their Bureaus or Offices to achieve compliance with 
this Policy, the Consultation Policies of their Bureaus or Offices, and 
any future policies related to EO 13175 or other government-to-
government consultation policies;
    b. Promoting and facilitating consultation and collaboration 
between Tribes and the TLOs' Bureau or Office;
    c. Advocating for opportunities for and consideration of positions 
of Indian Tribes, consistent with Bureau and Office missions;
    d. Serving as the principal point of contact for the TGO concerning 
compliance with this Policy, including Bureau and Office reporting 
requirements;
    e. Striving to enhance trusting and on-going relationships with 
Tribes, consistent with applicable law and executive orders;
    f. Serving as an initial contact for Tribes requesting or inquiring 
about consultation when it is unclear whom to contact for the Bureau or 
Office; and
    g. Carrying out other responsibilities as assigned by Bureau or 
Office Consultation Policies.
    3. Publicize TLOs and TGO--Each Bureau or Office shall take 
appropriate measures to publicize the name of the TGO and the names and 
contact information of their TLO(s) to facilitate contacts by tribal 
officials.
    C. Guidelines for Response to Request for Consultation. The TGO or 
appropriate representative will confirm receipt of a request for 
consultation from a Tribal Official. When the request is directed to 
the TGO, the request is to be forwarded to the appropriate Bureau or 
Office. The TGO or appropriate representative will treat an official 
request for consultation in an expedited fashion and respond in 
writing, using the most expedient methods to communicate to the Tribe, 
that the Department has received their request.
    D. Consultation Process Support. The Office of Collaborative Action 
and Dispute Resolution can assist in planning or facilitating an 
effective consultation process, negotiated rulemaking or other 
collaborative approach to decision-making. In planning consultation 
processes as outlined below in Paragraph E, Bureaus and Offices are 
encouraged to consider best practices for engagement, including but not 
limited to the use of neutral facilitation and other collaborative 
problem-solving approaches to promote effective dialogue and conflict 
resolution.
    E. Stages of Consultation. Bureaus and Offices will carry out the 
stages described below in order to satisfy consultation for a 
Departmental Action with Tribal Implications.
    1. Initial Planning Stage.
    Each Bureau or Office will consult as early as possible when 
considering a Departmental Action with Tribal Implications. A Bureau or 
Office may conduct a meeting or other forms of interaction with Indian 
Tribes in order to receive and evaluate comments received as part of 
the Initial Planning Stage.
    2. Proposal Development Stage.
    The Proposal Development Stage begins once the Department discloses 
the scope of a Departmental Action with Tribal Implications. Indian 
Tribes should be considered as appropriate collaborative partners, 
particularly where negotiated rulemaking or a Tribal Leader Task Force 
is created.
    The Bureau or Office will select a process for the Proposal 
Development Stage that maximizes the opportunity for timely input by 
Tribes and is consistent with both Tribal and Bureau schedules. The 
Bureau or Office should work with Indian Tribes to structure a process, 
which to the extent feasible, considers specific Indian Tribal 
structures, traditional needs, and schedules of the Tribes and may 
proceed with the expectation that interested Indian Tribes will respond 
within a reasonable time period. If litigation or legal requirements 
impact a Bureau's or Office's schedule for conducting consultation, 
then the Bureau or Office should explain these constraints to the 
Indian Tribe.
    Examples of appropriate processes for the Proposal Development 
Stage include but are not limited to the following:
     Negotiated Rulemaking. Where appropriate, the Bureau or 
Office should consider using negotiated rulemaking for developing 
significant regulations or other formal policies in accordance with the 
Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking 
Act.
     Tribal Leader Task Force. A Tribal Leader Task Force may 
be used, in appropriate circumstances, on regional or issue-specific 
(e.g., timber) matters. In each instance, the composition of the Task 
Force shall be collaboratively determined by the Tribes, provided that 
the Task Force shall be a process open to all Tribes and, to the extent 
possible, represent a cross-section of Tribal interests with respect to 
the matter at issue. The location and number of meetings to be held 
will conform to the expressed views of the Tribes, to the extent 
practicable and permitted by law and in accordance with FACA.
     Series of Open Tribal Meetings. The Bureau or Office may 
provide open invitations to Tribal leaders as part of a series of open 
meetings to consider action(s). Open meetings can be used for national, 
regional or subject-matter-specific issues.
     Single Meetings. The Bureau or Office may host Tribal 
Officials in a single meeting to discuss a Departmental Action with 
Tribal Implications under consideration. Single meetings are 
particularly

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appropriate for local, regional, or single Tribe issues.
    The Bureau or Office will solicit the views of affected Tribes 
regarding the process timeline to meaningfully consider a Departmental 
Action with Tribal Implications. The Bureau or Office should make all 
reasonable efforts to comply with the expressed views of the affected 
Tribes regarding the process timeline at this Stage, taking into 
account the level of impact, the scope, and the complexity of the 
issues involved in the Departmental Action with Tribal Implications, 
along with the other factors driving the schedule. The process will be 
open and transparent.
    If the Bureau or Office determines that the Administrative 
Procedure Act or other Federal law or regulation expressly prohibits 
continued discussion at a specified point in the decision-making 
process, the Bureau or Office should so inform the Tribes at the outset 
of this Stage in the process.
    3. Implementation of Final Federal Action Stage.
    In addition to any formal notice required by law or regulation, 
final decisions on Departmental Action with Tribal Implications should 
be communicated in writing to affected Tribes, with a summarized 
explanation of the final decision.
    A Bureau or Office may consider implementing a post-consultation 
review process where it is consistent with law, regulations, and EO 
13175. Any review process shall not limit the Department's deliberative 
process privilege regarding internal considerations or any other 
applicable privilege. The Bureau or Office at this Stage will consider 
the need for training or technical assistance.
    F. Impact of Consultation Guidelines. Consultation as described in 
this Section is not a basis for the Department to preclude requests or 
recommendations by Bureaus, Offices, or Indian Tribes to collaborate 
and foster trusting relationships between the Department and Indian 
Tribes outside of the processes described in this Section. Exigent 
circumstances may allow the Department to take measures that deviate 
from this Policy, but the Department should make every effort to comply 
and should explain to Indian Tribes as soon as exigent circumstances 
arise.

VIII. Supplemental Policies

    Bureaus and Offices, in collaboration with the TGO, are to review 
existing policies that may be impacted by this Policy. All Bureau and 
Office policies are to conform to this Policy. Where necessary, a 
Bureau or Office may develop a new policy in order to conform to this 
Policy.
    Consistent with Federal appropriations law, the Department shall 
develop a policy for consultation with Alaska Native Corporations. The 
Policy will address when a Department action impacts an Alaska Native 
Corporation's interest. The Policy will not conflict with the 
requirements of this document. The Secretary's designee will provide a 
Plan of Action for developing the Alaska Native Corporation 
consultation policy. Other entities that are not Bureaus or Offices as 
defined in this Policy may develop policies that conform to this 
Policy. Other entities may develop such policies in coordination with 
the TGO.

IX. Disclaimer

    Except to the extent already established by law, this Policy is 
intended only to improve the internal management of the Department, and 
is not intended to create any right, benefit, or trust responsibility, 
substantive or procedural, enforceable at law by a party against the 
Department or any person. The Department also does not waive any 
applicable privilege that it may hold by virtue of this Policy.

    Dated: May 11, 2011.
Laura Daniel Davis,
Chief of Staff.
[FR Doc. 2011-11971 Filed 5-16-11; 8:45 am]
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