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Section 1: The Governmental Relationship

This section includes information about—

• The Doctrine of Tribal Sovereignty

• Fundamental Powers of Indian Tribes

• Government-to-Government Relations

– Consultation

– Communications

• Status of Federally Recognized Indian Tribes

• Consultation With Other Groups and Indian Individuals

Indian tribes are part of the constitutional structure of government.

Tribal authority was not created by the Constitution—Tribal sovereignty predated the formation of the United States and continued after

it—but tribes were acknowledged by the Constitution in the reaffirmation of previously negotiated treaties (most of which were with Indian

Tribes), the two references to “Indians not taxed,” and the Indian

Commerce Clause. Relations were then cemented through the treaties

and treaty substitutes.

The modern presidency, Congress and Supreme Court continue squarely

to acknowledge this third source of sovereignty in the United States ...

—Charles F. Wilkinson (1987)60

Article 1, Section 8, Clause 3 of the U.S. Constitution empowers Congress “(t)o

regulate commerce ... with the Indian tribes,” which basically means that

“Indian relations are ... the exclusive province of Federal law.” (County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 (1989), making the

unique status of Indian tribes and the special relationship with the Federal

Government (a government-to-government relationship) clear.

Maintain a governmental relationship with Federally Recognized

tribal governments (American Indian/Alaska Native Policy (FSM

1563)).

• Take the time to meet with tribal governments on a regular basis.

• Build and enhance a mutual partnership.

• Gain an understanding of each other to develop an effective

governmental relationship.

• Pursue cooperative and partnership initiatives and efforts.

60American Indians, Time, and the Law 103–04 (1987).
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Worcester v. Georgia 31 U.S. (6 Pet) 515 (1832) reinforced three bedrock

principles relating to Indian tribes:

• Indian tribes, because of their aboriginal and territorial status, possessed certain incidents of preexisting sovereignty.

• The United States could reduce or eliminate such sovereignty, but

individual States could not.

• The tribes’ limited inherent (preexisting) sovereignty (Fletcher, 10 U.S.

(6 Cranch) at 147) and their corresponding dependency on the United

States for protection imposed a trust responsibility on the United

States.

These principles shape American Indian law:

• Sovereignty

• The Federal-to-Tribe (government-to-government) relationship

• The “Trust Responsibility” of the U.S. Government to Indian tribes

The Doctrine of Indian tribes are not foreign nations, but distinct political entities,

Tribal Sovereignty governing themselves, and making treaties with the United States (Cherokee

Nation v. Georgia (1831)). Their relationship to the United States Government is

that of domestic, dependent nations—the relationship is similar to that between

wards and their guardians.

Indian Nations had always been considered distinct, independent

political communities, retaining their original natural rights, as the

undisputed possessors of the soil ... The very term “nation” so generally applied to them means “people distinct from others.”

—John Marshall, 1832

Worcester v. Georgia

31US(6 Pet.)515, 561

Indian tribes recognized by the U.S. Government have a special and unique

legal and political relationship with the Government, defined by history,

treaties, statutes, court decisions, and the U.S. Constitution. Although the

U.S. Constitution does not apply to tribes, Article 1, Section 8, Clause 3

authorizes Congress to regulate “... commerce ... with Indian tribes.”

The important point of sovereignty is that tribes are independent nations.

Some characteristics of sovereignty are:

• Tribes were not granted sovereignty, they have always possessed it.

• Indian tribal governments have always maintained sole responsibility

to perpetuate their status as sovereign nations and to exercise their

rights as defined by treaty or other statute.

• Depending upon the legal document establishing a tribe’s status and

recognition, there may be certain rights that only Congress can alter.

• Sovereignty is a status rigorously guarded and maintained by tribal

governing bodies, Indian Nations to not delegate sovereignty to other

entities.
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The Supreme Court has found—

• That tribal governments are “unique aggregations possessing attributes

of sovereignty over both their members and their territory.”61

• That tribal powers not limited by Federal statute, by treaty, by restraints implicit in the protectorate relationship, or by inconsistency

with their status remain with tribal governments or reservation communities.62

Attributes of Sovereignty. Most tribal governments possess and exercise

inherent self-government powers unless such powers have been extinguished. Tribal governments frequently have considerable powers that are

separate and equal to those of State and local governments, particularly

civil and criminal jurisdiction over individuals and corporations. The

following are fundamental categories of tribal government power that have

been recognized under Federal law. These are also the attributes of sovereignty:

Attributes of Sovereignty

• The power to establish a form of government.

• The power to determine membership.

• The power to legislate or otherwise adopt substantive civil and

criminal laws.

• The power to administer justice.

• The power to exclude persons from the territory or reservation.

• The power to charter business organizations.

• The power of sovereign immunity.

Powers of Alaska Native Tribes and Groups. Absence of treaties between

the United States and Alaska Natives precluded the development of the

“dependent sovereignty” status. The inherent governmental powers that

treaty making addressed with the Indian Nations in the “lower 48” are not

found in the developing relations with Alaska Natives and their respective

tribal governments, societies, or clans. This lack of recognition has

contributed to Alaska Natives’ continued difficulties in exercising tribal

powers with both the State and Federal governments and undermined

rather than supported Alaska Native tribal powers.

When the Indian Reorganization Act of 1934 was originally passed, it did not

fully take into account the unique needs of Alaska Natives. In 1936, it was

amended to do so. Thus, the Federal Government acknowledged a relatively

limited and fragmented landownership-related trust responsibility toward

Alaska Natives. One benefit resulting from the act took place in the following year, 1937, when Congress made reindeer herding an exclusively Native

Fundamental

Powers of Indian

Tribes

61 United States v. Wheeler, 435 U.S. 313 (1978).

62 F. Cohen. Handbook of Federal Indian Law 232–35 (1982).
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activity. Through such activities, Congress was treating Alaska Natives in

much the same way as they did Indian tribes elsewhere.

Eventually, executive orders created more than 150 special Native reserves

to support reindeer herding, schools, and vocational education. Some

reserves were also created to protect extensive areas for subsistence

activities. Only one Indian reservation was ever established in Alaska at

Metlakatla. It was created under unique circumstances by an Act of

Congress in 1891 (Price 1990:78–83). At that time, Alaska was still a

territory. Creation of these reserves provoked fierce battles between territorial leaders and the Secretary of the Interior over who would control Alaska

lands and resources. The territorial leaders viewed the reserves as barriers to Alaska’s development and the progress of its people—a view reinforced by the Federal Government’s termination policy in the early 1950’s.

Government-to- National Forest System lands are public lands. While most Indian title

Government to these lands has been extinguished, the Forest Service has to be

Relations: concerned where there are—

Consultation

• Tribal rights reserved by treaty.

• Spiritual and cultural values and practices and archeological

and heritage resources.

• Adjacent tribal or trust lands.

• Tribal water rights.

Tribes are sovereign nations and other governments. They are not publics.

Consultation with tribes will be discussed throughout this document.

Consultation with tribal governments must be established and maintained

for a lasting government-to-government relationship.

 Whom to Consult Government-to-government consultation may only take place between

the Federal Government and Federally Recognized Indian Tribes.

Many tribes have at least two forms of leadership—the elected body

and the traditional/spiritual leaders. Consultation with tribal governments occurs through the elected tribal officials—presidents or chairpersons of tribal executive or business councils, headmen or women, and

governors in some Southwest tribes. Federal heritage laws may

include consultation with traditional cultural or spiritual leaders as

well as elected tribal government leaders.

• The Forest Service contact for government-to-government consultation

is the line officer at the Forest Service level where a decision that

may affect a tribe will be made.

• The line officer initiates and develops the government-to-government

consultation.

• The Forest Service line officer in this government-to-government

consultation is acting as a representative of the President of the

United States.
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Conducting Consider the following in conducting government-to-government

Consultation consultation with Indian tribes:

• Conduct consultation with official tribal leadership.

• Visit, listen, and communicate in person.

• Respect tribes as sovereign governments.

• Seek an understanding of how the tribe wishes to be consulted.

• Identify preferred methods of communication, develop protocols or

a Memorandum of Agreement on how consultation should be

conducted.

• Develop points of contact for tasks (such as staff work). Determine

with whom staff work should be conducted.

• Be sensitive to the effects of history on the consultation relationship. There may be a lack of trust.

• If consultation is likely to occur repeatedly, or with a number of

different tribes, with the tribe’s agreement, consider establishing a

consultation working group.

• Be flexible—especially with deadlines. If particular deadlines must

be set, be sure to explain them and why they exist. Expect to

negotiate.

• Conduct field trips. Understanding is generally shared on field

visits.

• Questions may not be answered immediately. It may be necessary

to pose a question and allow tribal leaders to think about the

question and discuss it with tribal committees, members, or tribal

councils.

• Be clear about whether you are notifying the tribe of an action or

consulting with them and seeking agreement. For actions on

National Forest System lands, some statutes such as the Archaeological Resources Protection Act (ARPA) require notification, but

not necessarily consent, although consent/agreement is certainly

the desired outcome.

• Respect confidentiality.

Specific steps of consultation can be developed with specific tribes.

This information can be formalized in an agreement or in a regional

tribal resource book.

Laws That Several authorities may require consultation with tribes:

Require Consultation

• The National Environmental Policy Act (NEPA). Regulations implementing

NEPA at 40 CFR 1507.7, require Federal agencies to invite Indian tribes

to participate in the scoping process on projects or activities that affect

them.
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Tribes with treaty rights upon National Forest Service lands may also

meet with line officers in advance of the formal planning processes

about their reserved rights.

• Federal Land Policy and Management Act of 1976 (90 Stat 2743;

43 U.S.C. 1712, Sec 202 (b). This act directs the Secretary of Agriculture to coordinate National Forest System land use planning with

Indian tribal land use planning (Table 1.1.) (page 39).

• The National Forest Management Act (NFMA) and Forest and Rangeland

Renewable Resources Act (RPA) for forest planning.

• Historic Preservation laws.

• Executive orders such as the one on Indian Sacred Sites. (See

Appendix A.)

See also Table 1.1 (page 39).

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

consultation and the communications, coordination, and public

involvement efforts commonly carried out between tribal government staff

members and equivalent Forest Service staff and employees. Many tribes

have technical staff, legal counsel, advisors, and administrators employed

to help run tribal affairs. These staff people usually do not speak on behalf

of the tribe about tribal policies or other tribal governmental actions.

However, they can be invaluable professional contacts for Forest Service

staffs. Staff-to-staff work can continue or even precede government-togovernment consultations.

Intertribal Groups and Organizations. There may be groups, such as the

Intertribal Timber Council, the Native American Fish and Wildlife Society,

and others that provide information, advice, and technical assistance to the

tribes on resource matters, but these groups do not speak for or represent

the tribes. Contact with such groups does not substitute for the Forest

Service conducting government-to-government consultation with elected

tribal officials.

Status of Federally The Forest Service conducts government-to-government consultation only

Recognized Indian with Federally Recognized Tribes.

Tribes

Federally Recognized Indian Tribes. Federal recognition is the

acknowledgment of an Indian tribe by the Secretary of the Interior as a

tribal government with a special relationship with the U.S. Government.

This unique and special relationship recognizes that Indian tribes receive

some benefits and reserve some rights not available to other citizens. The

process, regulations, and criteria for attaining Federal recognition are

found in 25 CFR 83.

Treaty Indian Tribes. Until 1871, Congress developed, negotiated, and

ratified formal treaties with individual tribes or confederated tribes. Early

cases clarifying these treaties established the basic elements of Federal

Indian law. Treaty Indian tribes are governments that have retained rights on

Federal or other lands that may include hunting; fishing; gathering food and
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Table 1.1.—Tribal Coordination and Consultation Requirements

Whom

Law To Contact Subject Time Frame

AIRFA—American Indian Traditional Religious Obtain and consider views Not specific.

Religious Freedom Act Practitioners during decisionmaking.

ARPA—Archaeological Tribal Officials If permitted work may harm or FS must notify the

Resources Protection Act impact an “Indian religious or tribe 30 days before

cultural site on public lands.” issuing a permit.

NFMA—National Forest Tribal Officials Provide opportunity to raise issues Vary depending

Management Act and comment on land-use plans, upon the stage of

and ensure consistency between the planning

FS and the tribe’s land use plans. process. 30 days or

more.

NAGPRA—Native Tribal Officials, Lineal Treatment and disposition of human Not specific, but

American Graves Descendants, and remains and associated funerary because of ref. to

Protection and Culturally Affiliated items and items of cultural ARPA, 30 days

Repatriation Act Groups patrimony. Also, when human before excavation.

remains or associated funerary FS must notify

items are accidently discovered. the tribe within

3 working days and

mitigation must be

completed within

30 days of

discovery.

NEPA—National Tribal Officials Provide opportunity to participate Scoping process,

Environmental Policy in land management decision- comment period,

Act making. 30 days on EA;

45 days on EIS.

NHPA—National Historic Tribal Officials, Provide opportunity to consult Not specific, but

Preservation Act Traditional Cultural as “interested persons” if action incorporate in

Leaders may affect properties of historic NEPA.

value to an Indian tribe on nonIndian lands.

Invite to participate as concurring Not specific.

parties when they request it.

RFRA—Religious Religious Practitioners Ensure agency decisions do not Not specific.

Freedom Restoration burden free exercise of religion

Act (access, use, or ritual practice)

EO Government-to- Tribal Governments Consult to greatest extent and Not specific.

Government Relations operate within a government-togovernment relationship.

EO Sacred Sites Tribal Officials and Accommodate access to and Not specific but

Religious Leaders ceremonial use of sacred sites and incorporate into

avoid physically affecting the NEPA/NFMA.

integrity of such sites.
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cultural and medicinal plants; and grazing livestock on open and unclaimed lands.

Executive Order Tribes. Not all reservations were established by treaty. Some

reservations were identified or created by executive order. Between 1871,

when Congress discontinued formal treaty making, and 1910, tribes not

previously recognized were surfaced by executive order.

As a rule, executive order tribes rarely reserved off-reservation rights or

privileges. Therefore, the Forest Service may have different land management

responsibilities for areas adjacent to or neighboring executive order tribes than

they do with treaty tribes. The Forest Service must consult with both.

Alaska Native Corporations (Alaska Native Claims Settlement Act of 1971—

ANCSA Corporations). Congress passed ANCSA in an attempt to accomplish

a fair and just settlement of all aboriginal land claims by Alaska Natives

and Alaska Native groups. Native corporations under ANCSA do not take

the place of tribal governments in Alaska, where there are 226 Federally

Recognized Tribes. These tribes have traditional governments formed under

the Indian Reorganization Act of 1934 (amended in 1936 to include Alaska

Natives) and have a unique relationship with the Federal Government. The

Forest Service works on a government-to-government basis with these

Federally Recognized Tribes—not the Native Corporations.

Non-Federally-Recognized Indian Groups. There are a number of Indian

communities and groups who identify themselves as tribes, but are not

Federally acknowledged. The Forest Service has neither the authority nor the

obligation to work with these groups on a government-to-government basis,

although the Forest Service may work with them as other interested

publics.

Consultation Although the Forest Service may work with American Indian or Alaska

With Other Groups Native individuals, groups, organizations, and communities in compliance

and Individuals with NEPA, NFMA, and other related laws, this is not recognized as

government-to-government consultation.

However, types of consultation other than government-to-government

consultation, with traditional practitioners, communities, and other interested parties may be conducted to comply with NEPA, NFMA, the American

Indian Religious Freedom Act (AIRFA), and the Native American Graves

Protection and Repatriation Act (NAGPRA) (the latter for lineal descendants).

• The National Historic Preservation Act (NHPA) requires consultation with

traditional practitioners and communities and other interested parties.

• AIRFA encourages Federal agencies to consider traditional practices,

which often have spiritual associations and connotations, and recommends that the Forest Service also contact nonrecognized groups about

cultural sites and archeological sites and resources.

There may be non-Indian groups or organizations claiming to represent

tribal views and positions. In these instances, Forest Service staff should

consult with Indian tribes and groups to verify this representation.