Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions January 2017

January 08, 2017


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 the Federal Government has made great strides towards making Tribal consultation a standard part of the Federal review and decision-making process, Tribes have expressed frustration with inconsistent authorities, implementation, policies, and practices across the Federal Government and across the country with regard to consultation. In the September 23, 2016 letter to Tribal Leaders, the Departments of Interior, Justice, and the Army committed 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 input from Tribes (Appendix 1). A subsequent Framing Paper discussed in greater detail the type of information the Departments sought from Tribes during the consultations (Appendix 2). Specifically, Federal agencies sought feedback concerning best practices for Tribal consultation and asked for Tribal input on questions in two broad categories:

1) Promoting Meaningful Government-to-Government Engagement within the Existing Framework. How can Federal agencies better ensure meaningful Tribal input into infrastructure-related reviews and decisions to protect Tribal lands, resources, and treaty rights within the existing framework?

2) Identifying Any Necessary Change to the Existing Framework. Where and when does the current framework present barriers to meaningful consultation? What changes to the current framework would promote these goals?

In October and November 2016, Federal agencies convened a series of seven government-to-government consultation sessions and one listening session with Tribal leaders in locations around the country (Appendix 3). Concurrently, a written comment period provided an avenue for Tribes to submit written comments in addition to or in place of participating in the in-person sessions. In sum, eighty-seven written comment submissions were received and fifty-nine Tribes and eight organizations representing Tribal interests provided input on the questions posed. 175 Federal staff representing sixteen Federal agencies participated in one or more of the sessions.

This Report serves several functions. First, it provides information about the existing Federal statutory, regulatory, and policy framework governing both Tribal consultation and Federal decision-making on infrastructure and related projects. Second, it serves as a record of Tribal input on this topic, summarizing both written and oral comments received during the consultations, listening session, and written comment period. Third, in order to improve both consultation and infrastructure permitting processes, this Report recommends that agencies undertake a thorough review of their consultation policies and practices, and that consultation policies be provided to the WHCNAA and made publicly available (if they are not already). The Report provides an initial Federal response to Tribal comments and recommendations along with a set of principles that should inform Tribal consultation. Finally, the Report highlights best practices gleaned from what Tribes identified as successful Tribal consultations and makes recommendations for further research, administrative, regulatory, or legislative action.