67249

Federal Register Presidential Documents

Vol. 65, No. 218

Thursday, November 9, 2000

Title 3- Executive Order 13175 of November 6, 2000

The President Consultation and Coordination With Indian Tribal

Governments

By the authority vested in me as President by the Constitution and the

laws of the United States of America, and in order to establish regular

and meaningful consultation and collaboration with tribal officials in the

development of Federal policies that have tribal implications, to strengthen

the United States government-to-government relationships with Indian tribes,

and to reduce the imposition of unfunded mandates upon Indian tribes;

it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) "Policies that have tribal implications" refers to regulations, legislative

comments or proposed legislation, and other policy statements or actions

that have substantial direct effects on one or more Indian tribes, on the

relationship between the Federal Government and Indian tribes, or on the

distribution of power and responsibilities between the Federal Government

and Indian tribes.

(b) "Indian tribe" means an 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.

(c) "Agency" means any authority of the United States that is an "agency"

under 44 U.S.C. 3502(1), other than those considered to be independent

regulatory agencies, as defined in 44 U.S.C. 3502(5).

(d) "Tribal officials" means elected or duly appointed officials of Indian

tribal governments or authorized intertribal organizations.

Sec. 2. Fundamental Principles. In formulating or implementing policies

that have tribal implications, agencies shall be guided by the following

fundamental principles:

(a) The United States has a unique legal relationship with Indian tribal

governments as set forth in the Constitution of the United States, treaties,

statutes, Executive Orders, and court decisions. Since the formation of the

Union, the United States has recognized Indian tribes as domestic dependent

nations under its protection. The Federal Government has enacted numerous

statutes and promulgated numerous regulations that establish and define

a trust relationship with Indian tribes.

(b) Our Nation, under the law of the United States, in accordance with

treaties, statutes, Executive Orders, and judicial decisions, has recognized

the right of Indian tribes to self-government. As domestic dependent nations,

Indian tribes exercise inherent sovereign powers over their members and

territory. The United States continues to work with Indian tribes on a

government-to-government basis to address issues concerning Indian tribal

self-government, tribal trust resources, and Indian tribal treaty and other

rights.

(c) The United States recognizes the right of Indian tribes to self-government

and supports tribal sovereignty and self-determination.

Sec. 3. Policymaking Criteria. In addition to adhering to the fundamental

principles set forth in section 2, agencies shall adhere, to the extent permitted

by law, to the following criteria when formulating and implementing policies

that have tribal implications:

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(a) Agencies shall respect Indian tribal self-government and sovereignty,

honor tribal treaty and other rights, and strive to meet the responsibilities

that arise from the unique legal relationship between the Federal Government

and Indian tribal governments.

(b) With respect to Federal statutes and regulations administered by Indian

tribal governments, the Federal Government shall grant Indian tribal governments the maximum administrative discretion possible.

(c) When undertaking to formulate and implement policies that have tribal

implications, agencies shall:

(1) encourage Indian tribes to develop their own policies to achieve program objectives;

(2) where possible, defer to Indian tribes to establish standards; and

(3) in determining whether to establish Federal standards, consult with

tribal officials as to the need for Federal standards and any alternatives

that would limit the scope of Federal standards or otherwise preserve the

prerogatives and authority of Indian tribes.

Sec. 4. Special Requirements for Legislative Proposals. Agencies shall not

submit to the Congress legislation that would be inconsistent with the policymaking criteria in Section 3.

Sec. 5. Consultation. (a) Each agency shall have an accountable process

to ensure meaningful and timely input by tribal officials in the development

of regulatory policies that have tribal implications. Within 30 days after

the effective date of this order, the head of each agency shall designate

an official with principal responsibility for the agency's implementation

of this order. Within 60 days of the effective date of this order, the designated

official shall submit to the Office of Management and Budget (OMB) a

description of the agency's consultation process.

(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial

direct compliance costs on Indian tribal governments, and that is not required

by statute, unless:

(1) funds necessary to pay the direct costs incurred by the Indian tribal

government or the tribe in complying with the regulation are provided

by the Federal Government; or

(2) the agency, prior to the formal promulgation of the regulation,

(A) consulted with tribal officials early in the process of developing the

proposed regulation;

(B) in a separately identified portion of the preamble to the regulation

as it is to be issued in the Federal Register, provides to the Director of

OMB a tribal summary impact statement, which consists of a description

of the extent of the agency's prior consultation with tribal officials, a summary

of the nature of their concerns and the agency's position supporting the

need to issue the regulation, and a statement of the extent to which the

concerns of tribal officials have been met; and

(C) makes available to the Director of OMB any written communications

submitted to the agency by tribal officials.

(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications and that preempts tribal

law unless the agency, prior to the formal promulgation of the regulation,

(1) consulted with tribal officials early in the process of developing the

proposed regulation;

(2) in a separately identified portion of the preamble to the regulation

as it is to be issued in the Federal Register, provides to the Director of

OMB a tribal summary impact statement, which consists of a description

of the extent of the agency's prior consultation with tribal officials, a summary

of the nature of their concerns and the agency's position supporting the

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need to issue the regulation, and a statement of the extent to which the

concerns of tribal officials have been met; and

(3) makes available to the Director of OMB any written communications

submitted to the agency by tribal officials.

(d) On issues relating to tribal self-government, tribal trust resources,

or Indian tribal treaty and other rights, each agency should explore and,

where appropriate, use consensual mechanisms for developing regulations,

including negotiated rulemaking.

Sec. 6. Increasing Flexibility for Indian Tribal Waivers.

(a) Agencies shall review the processes under which Indian tribes apply

for waivers of statutory and regulatory requirements and take appropriate

steps to streamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law,

consider any application by an Indian tribe for a waiver of statutory or

regulatory requirements in connection with any program administered by

the agency with a general view toward increasing opportunities for utilizing

flexible policy approaches at the Indian tribal level in cases in which the

proposed waiver is consistent with the applicable Federal policy objectives

and is otherwise appropriate.

(c) Each agency shall, to the extent practicable and permitted by law,

render a decision upon a complete application for a waiver within 120

days of receipt of such application by the agency, or as otherwise provided

by law or regulation. If the application for waiver is not granted, the agency

shall provide the applicant with timely written notice of the decision and

the reasons therefor.

(d) This section applies only to statutory or regulatory requirements that

are discretionary and subject to waiver by the agency.

Sec. 7. Accountability.

(a) In transmitting any draft final regulation that has tribal implications

to OMB pursuant to Executive Order 12866 of September 30, 1993, each

agency shall include a certification from the official designated to ensure

compliance with this order stating that the requirements of this order have

been met in a meaningful and timely manner.

(b) In transmitting proposed legislation that has tribal implications to

OMB, each agency shall include a certification from the official designated

to ensure compliance with this order that all relevant requirements of this

order have been met.

(c) Within 180 days after the effective date of this order the Director

of OMB and the Assistant to the President for Intergovernmental Affairs

shall confer with tribal officials to ensure that this order is being properly

and effectively implemented.

Sec. 8. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.

Sec. 9. General Provisions. (a) This order shall supplement but not supersede

the requirements contained in Executive Order 12866 (Regulatory Planning

and Review), Executive Order 12988 (Civil Justice Reform), OMB Circular

A-19, and the Executive Memorandum of April 29, 1994, on Governmentto-Government Relations with Native American Tribal Governments.

(b) This order shall complement the consultation and waiver provisions

in sections 6 and 7 of Executive Order 13132 (Federalism).

(c) Executive Order 13084 (Consultation and Coordination with Indian

Tribal Governments) is revoked at the time this order takes effect.

(d) This order shall be effective 60 days after the date of this order.

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Sec. 10. Judicial Review. This order is intended only to improve the internal

management of the executive branch, and is not intended to create any

right, benefit, or trust responsibility, substantive or procedural, enforceable

at law by a party against the United States, its agencies, or any person.

THE WHITE HOUSE,

November 6, 2000.

[FR Doec. 00-29003

Filed 11-8-00; 8:45 am]

Billing code 3195-01-P

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