at Superfund sites

Indian Tribal

overnments

with
[Inside of front cover.] 
A Beginner s Booklet

Notice 

This document is intended solely for the guidance of Federal 

Government personnel. Officials may decide to follow the 

guidance provided in this document or to act at variance with 

the guidance based on an analysis of site circumstances. The 

guidance is not a regulation and does not create any legal 

obligations or any right or trust responsibility. 

EPA generally seeks to consult with tribes on Agency actions that 

may affect tribes, including Superfund sites of tribal interest, 

consistent with: EPA’s Policy for the Administration of 

Environmental Programs on Indian Reservations (EPA’s 

Indian Policy); the April 29, 1994, Presidential Memorandum on 

Government-to-Government Relations with Native American Tribal 

Governments; and the Federal Government’s trust responsibility 

to federally recognized Indian tribes. 

This document does not specifically address consultation 

requirements under Executive Order 13175, 65 Fed. Reg. 67249 

(November 9, 2000 ). EPA’s approach to consultation under 

that Executive Order is described in Review of Environmental 

Protection Agency Draft Guidance for Implementing Executive 

Order 13175, Consultation and Coordination with Indian Tribal 

Governments, 71 Fed. Reg. 20314-20329 (April 19, 2006). This 

Superfund document refers to the consultation EPA undertakes 

generally, as a matter of policy. 

’ 1 
[This page is intentionally blank.] 

2 Consulting with Indian Tribal Governments at Superfund Sites 
INTRODUCTION 

Early and meaningful tribal involvement at Superfund sites of 

tribal interest is consistent with the federal trust responsibility to

tribes and furthers EPA’s overall goal of protecting human health 

and the environment.

This booklet is intended to introduce EPA staff and managers to

the basics of government-to-government consultation with Indian

tribal governments within the context of Superfund. It provides

a beginner’s background to a subject matter that involves many

important, nuanced, historical, complex, and challenging issues. 

This booklet, then, is not exhaustive in scope; rather, it is a 

starting point.

A list of resources provided at the end of the booklet will help you 

further explore the concepts and issues introduced here.

A Beginner’s Booklet
 3
The Comprehensive Environmental Response, Compensation, 

and Liability Act (CERCLA or Superfund) provides broad federal 

authority to respond to releases of hazardous substances, as 

well as pollutants or contaminants. 

CERCLA section 104 also allows EPA to enter into 

cooperative agreements with eligible tribes to perform or 

participate in Superfund-eligible site response activities. 

(EPA retains final oversight authority.) 

notification of releases, 

consultation on remedial actions, 

access to information, and 

roles and responsibilities under the National Contingency 

Plan (NCP). 

X

X

X

X

Pursuant to CERCLA section 126, the governing body of a 

tribe is afforded substantially the same treatment as states 

for many response-related purposes, which include: 

STATUTORY BACKGROUND 

4 Consulting with Indian Tribal Governments at Superfund Sites

KEY TERMS AND CONCEPTS


Consultation


Consultation generally consists of meaningful and timely communication between 

EPA officials and tribal government officials in developing Agency actions that 

affect tribes. Consultation means open sharing of information, the full expression 

of tribal and EPA views, a commitment to consider tribal views in decision-making, 

and respect for tribal self-government and sovereignty. 

Providing complete, timely, accurate, and understandable information to a 

tribal government about a site typically is a key component of consultation—but 

consultation means more than simply providing information about actions 

EPA plans to undertake and then allowing comment. The consultation process 

includes seeking, discussing, and considering the views of affected federally 

recognized tribal governments at the earliest practical time. Consultation 

works toward the goal of consensus and mutually-acceptable resolutions, while 

recognizing that goal might not be achieved. 

And, as with all aspects of the Superfund response process, the consultation 

process should be well-documented at each step of the way to refl ect the 

concerns of the affected tribe. This approach also should help protect the 

interests of the affected tribe and to show the scope and extent of tribal 

involvement and EPA’s consideration for tribal interests. 

Government-to-government relationship 

The relationship between federally recognized Indian tribal governments and 

the federal government is a unique one. Indian tribes possess an inherent 

sovereignty and are sometimes described as domestic dependent nations. 

Because each Indian tribe is a distinct sovereign government, EPA offi cials (and 

those from other federal agencies) are expected to interact with tribal offi cials as 

representatives of their government. 

A Beginner’s Booklet 5 
KEY TERMS AND CONCEPTS 

Consu ltation vs. Com munity Involvement 

It is important to distinguish between government-to-government consultation 

and community involvement activities. EPA carries out community involvement 

activities pursuant to CERCLA and the National Contingency Plan (NCP), but 

efforts typically involve the members of the tribal community directly and are 

normally separate from consultation or discussions with the tribal government. 

Consultation occurs in addition to the public participation process. 

Where appropriate, a Community Involvement Plan should be developed in

consultation with the tribal government since the tribe may be able to help EPA 

design the communication approach that best reflects the tribal community’s 

practices. The Community Involvement Plan can then be tailored more directly to

the community’s needs.

Federal Indian Trust Responsibility 

The federal government has a “trust responsibility” to federally recognized 

Indian tribes that arises from treaties, statutes, executive orders, and the 

historical relations between the United States and Indian tribes. Like other 

federal agencies, EPA must act in accordance with the trust responsibility—which 

generally includes consulting with and considering the interests of tribes—when 

taking actions that may affect tribes or their resources. The trust responsibility 

also includes protecting tribal sovereignty. 

Indian / American Indian / Native American / Alaska Native 

The terms “Native American,” “American Indian,” “Indian,” and “Alaska Native” 

can be used in a very broad sense to describe members of ethnically distinct 

groups of United States citizens who are indigenous to North America. All of these 

terms are generally accepted, but it is preferable to use individual tribal affi liation 

whenever possible. 

6 Consulting with Indian Tribal Governments at Superfund Sites 
KEY TERMS AND CONCEPTS 

I nd ia n tribe 

For the purposes of CERCLA, an “Indian tribe” is an entity that appears on the list 

of federally recognized tribes published annually by the Bureau of Indian Affairs 

(BIA) of the Department of the Interior (DOI). 

A member of an Indian tribe is a person who meets membership requirements 

under the laws of that tribe. Each tribe has its own laws and methods of 

determining membership, but typically membership eligibility is based on a 

person’s ancestry. Some tribes have additional membership criteria, such 

maternal or paternal descent. Therefore, ultimately, Indian tribal governments 

determine who is considered an Indian. 

EPA can consult—on a government-to-government basis—only with federally 

recognized tribes. However, keep in mind it is always important to include all 

interested parties in the process in an appropriate manner. 

I nd ia n Cou ntry 

This legal term is defined by federal statute to include all land within federal 

Indian reservations, dependent Indian communities, and certain other lands 

owned by Indians. Tribal land issues can be quite complicated, so talk to your 

regional Indian Program representative, Regional Counsel, or the Offi ce of 

General Counsel for more in-depth information. 

Multiple tribes 

More than one tribe could have interest in a site. In such a situation, EPA should 

offer to consult with all the interested tribes. In some cases, tribes may form a 

group to speak with one unified voice. But if this does not happen, EPA should 

continue to consult with all interested tribes. (Note: This booklet uses the singular 

“tribe,” but it is assumed to include the plural if applicable.) 

A Beginner’s Booklet 7 
GETTING THE BALL ROLLING 

When arriving on-scene, identifying a new site, or inheriting a site as it reaches 

your stage of the Superfund process, keep the possibility of tribal interest in mind 

and try to actively determine whether there is tribal interest. 

Get the bal l rolling. . . 

X From the start: Involve your regional Indian

Program representative, Superfund tribal

program staff, and Regional Counsel or Office

of General Counsel early.

8 Consulting with Indian Tribal Governments at Superfund Sites 

Do your homework: As part of your site 

background research, determine whether the site 

is potentially of tribal interest. 

X

Contact the tribe: The golden rule of tribal 

consultation is: the sooner, the better! 

X

Consult with the tribe about the consultation 

process: Attempt to reach agreement about 

the process to use. 

X
GETTING THE BALL ROLLING 

From the start 

Involve your regional Indian Program representative, Superfund tribal program 

staff, and Regional Counsel or Office of General Counsel early. They can provide 

invaluable information and assistance throughout the process. 

Did you know... A site potentially could be of tribal interest even if it is not located in Indian country 

or if it is on a tribe’s land where tribal members no longer live. For example, a tribe 

might have a legally recognized interest in a site where the tribe historically resided. 

A tribe might have a treaty right to engage in certain uses, such as to take water or 

to hunt, fish, or gather. A tribe also might have rights regarding areas of cultural or 

religious significance. Such interests might not be readily apparent, so be sure to 

confer with your regional Indian Program representative, EPA Regional Counsel, or 

Superfund program tribal staff for advice. 

Do your homework 

Potential tribal interest should be part of your background research for the site, 

but it might not be obvious. This is where your Superfund tribal coordinator can 

help. 

A tribe is most likely to have an interest in a site actually located in or near Indian 

country or directly bordering tribally held land. Land status, tribal ownership 

issues, and treaty rights can be very complicated, and a tribe may have an 

interest that makes consultation appropriate even for a site outside a reservation 

(see “Did you know...” above). So, again, be sure to confer with your regional tribal 

program staff, EPA Regional Counsel, or the Office of General Counsel. 

A Beginner’s Booklet 9 
GETTING THE BALL ROLLING 

If there is an indication of potential tribal interest, go a step further and do some 

background research on the tribe. Some information could be beneficial in the 

long run regarding, for example, past site involvement, customs and traditions, 

and tribal government structure.

Even if there is no initial indication of tribal interest, keep in mind the possibility of 

tribal interest throughout the process.

Contact the tribe 

Once you have determined that a site is of potential tribal interest, you should 

contact the tribe and inquire whether and how the tribe is interested in entering 

into consultation with EPA. The golden rule of tribal consultation is: the sooner, 

the better! 

First and foremost, you should coordinate closely with your EPA regional

Superfund tribal program staff when approaching a tribe, but here are general 

tips to get you started:

X Initiate official contact with the tribal government via letter from the regional

EPA Division Director level or higher. 

X Address the letter to the tribal Chairperson (or official designee) with a copy

going to the tribe’s environmental director.

X Propose specific consultation options, perhaps offering to develop a 

consultation plan.

10 Consulting with Indian Tribal Governments at Superfund Sites 

Keep in mind... Always maintain the appropriate staff/management level of 

participation at meetings: EPA staff can meet with tribal staff, but 

the Division Director (or higher) meets with the tribal Chairperson or 

designated representative. 
GETTING THE BALL ROLLING 

Keep in mind that tribal governments sometimes have restricted resources or 

other limiting circumstances—for example, tribal councils in Alaska typically meet 

monthly except during hunting or fishing seasons, during which time they don’t 

meet. If a tribe does not respond within a requested or generally reasonable 

amount of time, you could: 

X Follow up with the tribe at staff level by phone calls or e-mail to informally 

inquire about the tribe’s decision. 

X Send the tribe another letter—if calls and e-mails don’t yield useful 

information—documenting EPA’s efforts to establish consultation while 

reaffirming EPA’s continued interest in consulting with the tribe regarding the 

site. 

If a tribe does not immediately get involved, send site updates to the tribal 

officials throughout the process so that they are aware of progress at the site and 

know that the invitation for consultation is still open. 

Consult with the tribe about the consultation process 

Once a tribal government officially has confirmed an interest in establishing 

consultation with EPA, it’s good to get everyone together to sit down and develop 

a game plan with the tribe—consult with the tribe about the consultation 

process! Each tribal government will have its own preferences for a consultation 

process with EPA. It is important for EPA to reach a shared understanding of the 

appropriate approach with the tribe at the beginning of the process. 

A Beginner’s Booklet 11

OTHER FACTORS AND SUGGESTIONS 

FOR WORKING WITH TRIBES 

Be aware of your perceptions and be open-minded 

It is natural for us to apply our own experiences, based on our own way of life, 

to new situations—such as a new hazardous waste site. However, we need 

to be aware that certain aspects—or the entire lifestyle—of a tribe can differ 

greatly from mainstream U.S. culture. When working with a tribe, developing an

awareness of these differences can facilitate communication with tribal members 

and help you better understand unique issues and dynamics at play.

Tribe-Specific and Site-Specific Factors 

Get to know the tribe. Find out how the tribal government is set up. Don’t assume 

you know everything about a particular tribe because you consulted with a 

different tribe at a different site. Each tribe is unique—with its own traditions, 

politics, and lifestyle.

Being aware of a tribe’s unique lifestyle or concerns also can help in identifying 

culturally specific environmental factors to consider when dealing with a site. 

Review Historical Documents 

Ask the tribe whether it has any historical documents (such as a treaty) that are 

relevant to the site. Allow the tribe to explain why the document is important and 

how it relates to the site or the tribe’s issues of concern. The document could 

have information that is integral to the response activity at the site.

12 Consulting with Indian Tribal Governments at Superfund Sites 
OTHER FACTORS AND SUGGESTIONS 

Pr ivi leged or Conf ident ia l Cu ltu ra l Informat ion 

Although it is important to take into consideration cultural factors at a site, 

sometimes tribal governments do not want to disclose specifi c information 

regarding location, ritual, method, or quantity of something. A tribe’s reasons for 

not wanting to disclose information could include concern about artifact thieves 

or a desire to protect culturally or religiously restricted knowledge. So before 

preparing records memorializing consultation activities or other information from 

tribes, it is good practice to discuss with each tribe whether there are issues 

of unique sensitivity to the tribe that might affect the level of detail the records 

should contain. 

Make sure to provide the tribe with enough information so that it can make an 

informed decision regarding disclosure. Explain how the information will be 

used and identify statutory and regulatory requirements that may require public 

disclosure. Explain also the effect nondisclosure has on the Superfund process, 

which by law includes some requirements concerning documentation of decisions 

and public participation. 

Finally, if the tribe makes an informed decision not to provide specific data about 

cultural factors, try to find other ways to document the tribe’s general concerns. 

A Beginner’s Booklet 13
OTHER FACTORS AND SUGGESTIONS 

National Historic Preservation Act 

Any CERCLA site could include properties that qualify as “historic properties”—which 

could include properties of historic signifi cance to tribes—under the National Historic 

Preservation Act (NHPA). You should, as appropriate, work with the relevant tribal 

historic preservation officer or designated tribal representative (which may be 

a tribal cultural resources office) to consider impacts on historic properties. It 

also may be appropriate to work with the relevant state historic preservation 

officer. You should consult your region’s historic preservation officer and Regional 

Counsel for assistance. 

Tribes and PRP-lead sites 

Generally, a tribe should be involved at a PRP-lead (potentially responsible party) 

site at least to the extent it would be involved at a Fund-lead site. You may want 

to explore whether there are legal and practical options that would enable EPA or 

the PRP to fund tribal involvement. 

14 Consulting with Indian Tribal Governments at Superfund Sites 
K EEP IT GOI NG... 

EPA is better able to fulfill its responsibility to “protect human health and the 

environment” if the Agency utilizes the tribal consultation process by taking 

advantage of the insight and knowledge tribal governments can provide. 

Incorporating the views and concerns of Indian tribal governments throughout 

the Superfund response process may help to bring about more effective 

implementation and collaboration on actions that are beneficial to public health 

and the environment in Indian country and elsewhere. 

This booklet is intended to give you a brief introduction to a complex and nuanced 

subject. In the back of this booklet you will find a list of resources for further 

exploration. And remember: your first and foremost resource is your EPA regional 

Superfund tribal program staff. 

A Beginner’s Booklet 15
FURTHER READING AND REFERENCE 

EPA Indian Program Resource Guide 

[http://www.epa.gov/indian/resource/resource.htm]

Working Effectively with Tribal Governments (online training; EPA intranet)

[http://intranet.epa.gov/opptsval/training/tribal/EPA/mainmenu/launchPage.htm]

Federal Laws, Regulation and Guidance

[http://www.epa.gov/indian/laws3.htm]

Executive Orders, Policies and Initiatives 

[http://www.epa.gov/indian/policyintitvs.htm]

For more info on the National Historic Preservation Act: CERCLA Compliance with 

Other Laws Manual: Part II. Clean Air Act and other Environmental Statutes and 

State Requirements

[http://www.epa.gov/superfund/resources/remedy/pdf/540g-89009-s.pdf]

FAQs Concerning American Indians and Alaska Natives (from Department of 

Health and Human Services) 

[http://aspe.hhs.gov/SelfGovernance/faqs.htm]

16 Consulting with Indian Tribal Governments at Superfund Sites 
[Inside of back cover.] 
Office of Solid Waste and Emergency Response 

Office of Superfund Remediation and Technology Innovation 

www.epa.gov 

November 2006 OSWER-9200.3-42