Uniform Standards for Tribal Consultation, 74479-74483 [2022-26555]

Agencies

• Executive Office of the President

[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Presidential Documents]
[Pages 74479-74483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26555]



[[Page 74477]]

Vol. 87

Monday,

No. 232

December 5, 2022

Part II





The President





-----------------------------------------------------------------------



Memorandum of November 30, 2022--Uniform Standards for Tribal 
Consultation


                        Presidential Documents 



Federal Register / Vol. 87 , No. 232 / Monday, December 5, 2022 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 74479]]

                Memorandum of November 30, 2022

                
Uniform Standards for Tribal Consultation

                Memorandum for the Heads of Executive Departments and 
                Agencies

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, it is hereby ordered as follows:

                Section 1. Background. The United States has a unique, 
                legally affirmed Nation-to-Nation relationship with 
                American Indian and Alaska Native Tribal Nations, which 
                is recognized under the Constitution of the United 
                States, treaties, statutes, Executive Orders, and court 
                decisions. The United States recognizes the right of 
                Tribal governments to self-govern and supports Tribal 
                sovereignty and self-determination. The United States 
                also has a unique trust relationship with and 
                responsibility to protect and support Tribal Nations. 
                In recognition of this unique legal relationship, and 
                to strengthen the government-to-government 
                relationship, Executive Order 13175 of November 6, 2000 
                (Consultation and Coordination With Indian Tribal 
                Governments), charges all executive departments and 
                agencies (agencies) with engaging in regular, 
                meaningful, and robust consultation with Tribal 
                officials in the development of Federal policies that 
                have Tribal implications. Executive Order 13175 also 
                sets forth fundamental principles and policymaking 
                criteria.

                The Presidential Memorandum of January 26, 2021 (Tribal 
                Consultation and Strengthening Nation-to-Nation 
                Relationships), requires agencies to submit detailed 
                plans of action to implement the policies and 
                directives of Executive Order 13175. In response, all 
                agencies subject to Executive Order 13175 submitted 
                plans of action, including over 50 agencies that 
                submitted a consultation plan of action for the first 
                time. Agencies also conducted more than 90 national-
                level Tribal consultations, focusing specifically on 
                agency Tribal consultation policies. The purpose of 
                this memorandum is to establish uniform minimum 
                standards to be implemented across all agencies 
                regarding how Tribal consultations are to be conducted. 
                This memorandum is designed to respond to the input 
                received from Tribal Nations regarding Tribal 
                consultation, improve and streamline the consultation 
                process for both Tribes and Federal participants, and 
                ensure more consistency in how agencies initiate, 
                provide notice for, conduct, record, and report on 
                Tribal consultations. These are baseline standards; 
                agencies are encouraged to build upon these standards 
                to fulfill the goals and purposes of Executive Order 
                13175 consistent with their unique missions and 
                engagement with Tribal Nations on agency-specific 
                issues.

                Sec. 2. Consultation Principles. Tribal consultation is 
                a two-way, Nation-to-Nation exchange of information and 
                dialogue between official representatives of the United 
                States and of Tribal Nations regarding Federal policies 
                that have Tribal implications. Consultation recognizes 
                Tribal sovereignty and the Nation-to-Nation 
                relationship between the United States and Tribal 
                Nations, and acknowledges that the United States 
                maintains certain treaty and trust responsibilities to 
                Tribal Nations. Consultation requires that information 
                obtained from Tribes be given meaningful consideration, 
                and agencies should strive for consensus with Tribes or 
                a mutually desired outcome. Consultation should 
                generally include both Federal and Tribal officials 
                with decision-making authority regarding the proposed 
                policy that has Tribal implications. Consultation will 
                ensure that applicable information is readily available 
                to all parties, that Federal and Tribal officials have 
                adequate time

[[Page 74480]]

                to communicate, and that after the Federal decision, 
                consulting Tribal Nations are advised as to how their 
                input influenced that decision-making. All of these 
                principles should be applied to the extent practicable 
                and permitted by law.

                Sec. 3. Designating an Agency Point of Contact for 
                Tribal Consultation. (a) The head of each agency shall 
                designate a primary point of contact for Tribal 
                consultation matters who is responsible for advising 
                agency staff on all matters pertaining to Tribal 
                consultation and serving as the primary point of 
                contact for Tribal officials seeking to consult with 
                the agency.

                    (b) The head of each agency shall consider 
                designating additional points of contact as necessary 
                to facilitate consultation on varied subject matter 
                areas within the agency.
                    (c) Each agency shall provide the names and contact 
                information of the designated agency points of contact 
                for Tribal consultation on its website, as well as to 
                the White House Office of Intergovernmental Affairs and 
                the White House Council on Native American Affairs.
                    (d) The designated agency points of contact may 
                delegate consultation responsibilities to other 
                decision-making agency officials within their agency as 
                necessary and appropriate.

                Sec. 4. Determining Whether Consultation Is 
                Appropriate. The head of each agency shall ensure that 
                agency staff undertake an analysis as early as possible 
                to determine whether Tribal consultation is required or 
                appropriate consistent with Executive Order 13175. This 
                analysis should occur regardless of whether a Tribal 
                government requests consultation. When a Tribal 
                government requests consultation, the agency--to the 
                extent that it has not yet performed the analysis to 
                determine whether consultation is appropriate--shall 
                conduct that analysis as soon as possible and respond 
                to the Tribe within a reasonable time period. If there 
                is a reasonable basis to believe that a policy may have 
                Tribal implications, consistent with the definition in 
                Executive Order 13175, the agency shall follow the 
                applicable requirements for consultation. Agencies may 
                still engage in Tribal consultation even if they 
                determine that a policy will not have Tribal 
                implications, and should consider doing so if they 
                determine that a policy is of interest to a Tribe or 
                Tribes.

                Sec. 5. Notice of Consultation. (a) When inviting a 
                Tribe or Tribes to consult, the head of each agency 
                should:

(i) develop a notice of consultation, which includes:

  (A) sufficient information on the topic to be discussed, in an accessible 
language and format, and context for the consultation topic, to facilitate 
meaningful consultation;

  (B) the date, time, and location of the consultation, as requested by the 
agency or as developed in consultation with the Tribe or Tribes;

  (C) if consulting virtually or by telephone, links to join or register in 
advance;

  (D) an explanation of any time constraints known to the agency at that 
time, such as statutory deadlines;

  (E) deadlines for any written comments on the topic; and

  (F) names and contact information for agency staff who can provide more 
information;

(ii) transmit the notice of consultation, using the agency's standard 
method of communication, to each affected Tribal government and consider 
posting it to the agency's website or any centralized Federal Government 
site for providing notice of or coordinating Tribal consultations;

(iii) provide notice of at least 30 days to the Tribe or Tribes of any 
planned consultations, except as provided in subsection (c) of this 
section;

(iv) provide appropriate, available information on the subject of 
consultation including, where consistent with applicable law, a proposed 
agenda,

[[Page 74481]]

framing paper, and other relevant documents to assist in the consultation 
process; and

(v) allow for a written comment period following the consultation of at 
least 30 days, except as provided in subsection (c) of this section.

                    (b) The head of each agency shall ensure that 
                agency officials responsible for sending invitations to 
                consult to interested or potentially affected Tribal 
                governments use available tools, databases, and agency 
                documentation, as well as communicate with agency 
                representatives who may be knowledgeable about those 
                Tribes and the location(s) affected by the policy with 
                Tribal implications, to ensure their invitation efforts 
                are appropriately inclusive. Such efforts should 
                account for the fact that Tribes may have connections 
                or legally protected rights to locations and resources 
                beyond their current Tribal lands and Tribal government 
                offices such as off-reservation fishing, hunting, 
                gathering, or other rights.
                    (c) If there are time constraints such that 30 
                days' notice of consultation is not possible, or that 
                the post-consultation written comment period described 
                in subsection (a)(v) of this section must be shorter 
                than 30 days, the notice of consultation should include 
                information as to why the standard notice or written 
                comment period cannot be provided. Upon the request of 
                a Tribe, or where it would serve Tribal interests or 
                fulfill certain trust obligations to Tribal Nations, 
                agencies should consider adjusting deadlines for notice 
                of consultations and for accepting written comments.

                Sec. 6. Conducting the Consultation. Throughout a 
                consultation, the head of each agency, or appropriate 
                representatives, shall recognize and respect Tribal 
                self-government and sovereignty; identify and consider 
                Tribal treaty rights, reserved rights, and other 
                rights; respect and elevate Indigenous Knowledge, 
                including cultural norms and practices relevant to such 
                consultations; and meet the responsibilities that arise 
                from the unique legal relationship between the Federal 
                Government and Tribal governments. The head of each 
                agency should ensure that agency representatives with 
                appropriate expertise and, to the extent practicable, 
                decision-making authority regarding the proposed policy 
                are present at the Nation-to-Nation consultation. The 
                head of each agency should consider conducting the 
                consultation in a manner that prioritizes participation 
                of official Tribal government leaders.

                Sec. 7. Record of the Consultation. (a) The head of 
                each agency shall maintain a record of the consultation 
                process that includes:

(i) a summary of Tribal input received;

(ii) a general explanation of how Tribal input influenced or was 
incorporated into the agency action; and

(iii) if relevant, the general reasoning for why Tribal suggestions were 
not incorporated into the agency action or why consensus could not be 
attained.

                    (b) The head of each agency shall timely disclose 
                to the affected Tribe or Tribes the outcome of the 
                consultation and decisions made as a result of the 
                consultation. To the extent permitted by applicable 
                law, the head of each agency shall seek to ensure that 
                information designated as sensitive by a Tribal 
                government is not publicly disclosed. Agencies should 
                obtain advance informed consent from Tribal communities 
                for the use of sensitive information provided by the 
                Tribe, and should inform Tribal representatives that 
                certain Federal laws, including the Freedom of 
                Information Act, may require disclosure of such 
                information.
                    (c) For national and regional consultations, or if 
                otherwise appropriate, the head of each agency should 
                also consider publicly posting the record of 
                consultation to foster ease of reference and use by 
                other agencies, employees, and processes, and to 
                minimize burdens on Tribes to provide similar input in 
                multiple consultations. Decisions regarding whether to 
                publicly post a record of consultation should be made 
                with Tribal input.

[[Page 74482]]

                    (d) The record of consultation does not waive any 
                privilege or other exception to disclosure pursuant to 
                the Freedom of Information Act or its implementing 
                regulations.

                Sec. 8. Training. (a) The head of each agency shall 
                require annual training regarding Tribal consultation 
                for agency employees who work with Tribal Nations or on 
                policies with Tribal implications. This training shall 
                include, at minimum, review of Executive Order 13175, 
                this memorandum, and any applicable Tribal consultation 
                policy of the agency.

                    (b) In addition, the Secretary of the Interior and 
                the Director of the Office of Personnel Management 
                (OPM), in consultation with Tribal Nations, shall 
                establish training modules regarding Tribal 
                consultation to be available for agency employees who 
                work with Tribal Nations or on policies with Tribal 
                implications. These training modules should explain the 
                concepts of Tribal consultation, the Nation-to-Nation 
                relationship, and Tribal sovereignty. Agencies may use 
                these training modules to satisfy the annual training 
                requirement set forth in subsection (a) of this 
                section.
                    (c) Within 180 days of the date of this memorandum, 
                the Director of OPM, in consultation with the Secretary 
                of the Interior, shall report to the President on 
                progress toward establishing training modules regarding 
                Tribal consultation and shall identify additional 
                resources or other support necessary to implement this 
                training.

                Sec. 9. Definitions. The terms ``Tribal officials,'' 
                ``policies that have Tribal implications,'' and 
                ``agency'' as used in this memorandum are as defined in 
                Executive Order 13175. The terms ``Tribes'' and 
                ``Tribal Nations'' as used in this memorandum have the 
                same definition as the term ``Indian Tribe'' as defined 
                in Executive Order 13175.

                Sec. 10. Scope. Nothing in this memorandum shall be 
                construed to impair or otherwise affect the ability of 
                heads of agencies to set more specific or more 
                stringent standards, or to incorporate other best 
                practices, for conducting Tribal consultation.

                Sec. 11. General Provisions. (a) Nothing in this 
                memorandum shall be construed to impair or otherwise 
                affect:

(i) the authority granted by law to an executive department or 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.

                    (b) This memorandum shall be implemented consistent 
                with applicable law and subject to the availability of 
                appropriations.
                    (c) 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.
                    (d) Independent agencies are strongly encouraged to 
                comply with the provisions of this memorandum.

[[Page 74483]]

                    (e) The Director of the Office of Management and 
                Budget is authorized and directed to publish this 
                memorandum in the Federal Register.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, November 30, 2022

[FR Doc. 2022-26555
Filed 12-2-22; 11:15 am]
Billing code 3110-01-P