DRAFT Consultation and Communication with Indian Tribal Governments – Tips for Establishing a 

Productive Relationship

Background

Before we address the details and procedures for consulting with Indian Tribes, it is important to 

understand the federal government’s relationship with Tribes and some of the basic principles underlying 

the importance of Tribal consultation. The federal government has a unique government-to-government 

relationship with federally-recognized Indian Tribes that arises from Indian treaties, statutes, executive 

orders, and the historical relations between the United States and Indian Nations. Among other things, the 

federal government has a trust responsibility to federally-recognized Tribes, and EPA, like other federal 

agencies, must act in accordance with that trust responsibility when taking actions that affect Tribes. Part 

of this responsibility includes a need to consult with Tribes and respond to their interests when taking 

actions that may affect Tribes or their resources. In EPA’s landmark 1984 Indian Policy, the Agency 

stated that the keynote of EPA’s efforts to protect human health and the environment on Indian 

reservations “will be to give special consideration to Tribal interests in making Agency policy, and to 

insure the close involvement of Tribal Governments in making decisions and managing environmental 

programs affecting reservation lands” (EPA Policy for the Administration of Environmental Programs on 

Indian Reservations, November 8, 1984). Similarly, in a 1994 memorandum, the President directed all 

federal agencies to assess the impacts of their plans, projects, programs, and activities on tribal trust 

resources, assure that tribal rights and concerns are considered in decision making, and, to the extent 

practicable and permitted by law, consult with tribal governments before taking actions that affect them 

[Memorandum: Government-to-Government Relations with Native American Tribal Governments, April 

29, 1994 (59 Fed. Reg. 22951)].

Executive Order (EO) 13175 states that policies with Tribal implications are defined as “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.”

Tips:

· Timely communication is highly emphasized by tribal environmental professionals who work 

with their respective EPA contacts. Unlike state and local agencies, tribal government systems 

vary from tribe to tribe. A tribal leader is responsible for the well-being of an entire tribal 

community and he/she focuses on the overall government functions. If EPA is planning to extend 

an invitation to consult with a tribal leader on an environmental issue, an adequate amount of 

time for the invitation to reach the tribal leader must be taken into account. 

· To assist with the communication process, most tribal environmental professionals prefer to be 

copied on any correspondence going to their tribal leader. This will give the environmental 

professional time to notify their tribal leader and to prepare more effectively for 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 

hear and understand tribal views in decision-making, and respect for tribal self-government and 

sovereignty.
DRAFT · Consultation vs. Participation/Collaboration: It is important to distinguish between governmentto-government consultation and participation/collaboration of tribal environmental professionals. 

EPA carries out outreach activities pursuant to the CAA, but efforts typically involve members of 

the tribal air quality program directly and are normally separate from consultation or discussions 

with the tribal government. Consultation should occur with tribal leaders in addition to the 

participation/collaboration process with tribal environmental professionals.

· Federal Indian Trust Responsibility: Government-to-government consultation recognizes and 

ensures the federal government’s trust responsibility to protect tribal sovereignty.

· Tribal governments do not have the same organizational structure as a state or local agency. The 

environmental office structure also varies from tribe to tribe.

· Where appropriate, a participation/collaboration 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.

· Getting the Ball Rolling:

o Communication between the regional tribal coordinator, permit program staff, and 

regional counsel or Office of General Counsel should begin early.

o Determine whether a onsite or nearby facility is of interest to a tribe

o Consult with the tribe as soon as possible

o Develop a communication plan with the tribe to keep them apprised of the permit process

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

throughout the process so that they are aware of progress and know that the invitation for 

consultation is still open

· Did You Know:

o A facility could be of interest to a tribe even if it is not located in Indian country or if it is 

on tribal land that is no longer occupied by tribal members (e.g., ceeded teritories, trust 

lands, treaty right areas, and usual and accustom areas)

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

hunt, fish, or gather.

o A tribe also might have rights regarding areas of cultural or religious significance.

o Be sure to confer with all EPA staff (tribal coordinator, permit program, legal counsel, 

etc.) for advice.

o Tribal members favor their privacy when it comes to customs, practices, use of tribal 

lands, natural resources, language, to name a few.

· 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. However, we need to be aware that 

certain aspects and/or lifestyle of a tribe can differ greatly from mainstream U.S. culture. When 

working with a tribe, be aware of these differences. Communication with tribal members can be 

productive if you better understand the unique issues and dynamics of an individual tribe.

· Tribe-Specific and Site-Specific Factors: Each tribe is unique. You may want to find out how 

each tribal government is set up so that communication is clear and productive. Each tribe has its 

own traditions, politics and lifestyle.

· Privileged or Confidential Cultural Information: A tribe may have cultural factors that they are 

trying to protect and may not want to disclose specific information regarding these resources. Be 
DRAFT prepared to discuss with each tribe whether there are issues of unique sensitivity to the tribe. If a 

tribe is not willing to provide specific data regarding cultural factors, try to find other ways to 

document the tribe’s general concerns.

· Don’t assume you know what the tribe may want to review. Provide all information to the tribe 

and let them tell you what’s important. 

· If the Region is developing a permit plan and communication strategy the outreach and 

consultation process should be built in.