U.S. DEPARTMENT OF THE INTERIOR 

OFFICE OF SURFACE MINING 

ubject Code: 

REG 18 

RECLAMATION AND ENFORCEMENT t--------1 ransmittal Number: 

DIRECTIVES 979 

SYSTEM ate:6_,;).0-!3 

Subject: Tribal Consultation and Protection of Tribal Trust Resources 

Approval: Joseph G. Pizarchik Title: Director 

1. Purpose. This directive se s forth the policies and procedures that the Office of Surface 

Mining Reclamation and Enforcement (OSM) will follow to ensure that any OSM action with 

tribal implications is consistent with: 

a. Presidential Executive Order 13175, dated November 6, 2000; 

b. Presidential Memorandum on Tribal Consultation, dated November 9, 2009; and 

c. Department of the Interior Policy on Consultation with Indian Tribes, as adopted 

in Secretarial Order 3317, dated December 1, 2011. 

2. Summary of Changes. This directive supersedes REG 18, dated March 28, 1996, 

(transmittal number 853) and has been revised to reflect and implement the three documents 

listed in Paragraph l(above) of this directive. In addition, extraneous language has been 

removed and obsolete provisions have been either updated or deleted, as appropriate. 

3. Definitions. 

a. Abandoned Mine Reclamation Fund. A special trust fund established for the 

reclamation of abandoned mine lands and for other activities authorized by Title IV of the 

Surface Mining Control and Reclamation Act (SMCRA). 

b. Allotted lands or individual allotments. "either a parcel of land owned by the 

United States in trust for an Indian, i.e., a 'trust allotment,' or owned by an Indian subject to a 

restriction on alienation in favor of the United States or its officials, i.e., a 'restricted fee 

allotment." ' (Black's Law Dictionary) See: the General Allotment Act of 1887 (Dawes Act); the 

Dawes Commission to the Five Civilized Tribes of March 3, 1893; the Burke Act of \fay 8, 

1906; the Lacey Act of March 2, 1907; and numerous allotment acts in Oklahoma. 

c. Federal permitting entity CFPE). The OSM organizational unit with responsibility 

for receiving and processing SMCRA permit applications and other materials related to lands for 

which OSM is the regulatory authority. For Indian lands the FPE is the OSM regional office 

with jurisdiction over the lands within the permit application. 

d. Federal Indian Trust Responsibility. A legal obligation under which the United 

States "has charged itself with moral obligations of the highest responsibility and trust" toward 
Indian tribes (Seminole Nation v. United States, 1942). The Federal Indian trust responsibility is 

also a legally enforceable fiduciary obligation on the part of the United States to protect tribal 

treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of Federal 

law with respect to American Indian and Alaska Native tribes and villages. 

See http://www.bia.gov/F AQs/index.htm 

e. Indian lands. All lands, including mineral interests, within the exterior boundaries 

of any Federal Indian reservation, notwithstanding the issuance of any patent, and including 

rights-of-way, and all lands including mineral interests held in trust for or supervised by an 

Indian tribe. 

f. Indian mineral owner. (1) any individual Indian or Alaska native who owns land 

or mineral interests in land the title to which is held in trust by the United States or is subject to a 

restriction against alienation imposed by the United States, or (2) any Indian tribe, band, native, 

pueblo, community, rancheria, colony, or other group which owns land or mineral interest in 

land the title to which is held in trust by the United States or is subject to a restriction against 

alienation imposed by the United States. This definition does not include owners of lands 

patented to a village or regional corporation pursuant to the Alaska Native Claims Settlement 

Act, Pub. L. 92- 203. 

g. Indian tribe. Any Indian tribe, band, group, or community having a governing 

body recognized by the Secretary. The Secretary publishes a list of federally recognized Indian 

tribes annually in the Federal Register and at http://www.bia.gov/DocumentLibrary/index.htm. 

h. OSM action with tribal implications. Any OSM regulation, rulemaking, policy, 

guidance, legislative proposal, grant funding formula changes, or operational activity that may 

have a substantial direct effect on an Indian tribe on matters including, but not limited to: 

(1) Tribal cultural practices, lands, resources, or access to traditional areas of 

cultural or religious importance on federally managed lands; 

(2) The ability of an Indian tribe to govern or provide services to its members; 

(3) An Indian tribe's formal relationship with OSM; or 

(4) The consideration of OSM's trust responsibilities to Indian tribes. 

This tenn does not include matters that are in litigation or in settlement negotiations, or 

matters for which a court order limits OSM's discretion to engage in consultation. 

i. Tribal fee lands. All lands where the surface and/or mineral interests are owned 

in fee simple by an Indian tribe, but not held in trust for the tribe by the United States 

Government. 

j. Tribal Liaison Officer (TLO). One or more individuals designated by the 

Director to carry out responsibilities defined in this directive. 

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k. Tribal official. An elected or appointed tribal leader or official designated in 

writing by an Indian tribe to represent the tribe in government-to-government consultations. 

1. Tribal trust lands. All lands where the surface and/or mineral interests are held in 

trust for an Indian tribe by the United States Government. 

m. Tribal trust resources. Those natural resources, either on or off Indian lands, 

retained by, or reserved by or for, Indian tribes through treaties, statutes, judicial decisions, and 

executive orders, which are protected by a fiduciary obligation on the part of the United States. 

4. Policy. 

a. OSM personnel must ensure that bureau actions identify, conserve, and protect 

lands and other resources that the Department holds in trust for federally recognized Indian tribes 

and tribal members. 

b. In fulfilling these responsibilities, OSM must consult with Indian tribes on a 

government-to-government basis. 

c. There is no Federal trust responsibility for tribal fee lands. 

d. OSM, in consultation with the Bureau of Indian Affairs, will ensure that it fulfills 

its trust responsibility for the protection of trust resources on allotted lands. 

e. As required under Executive Order 13175, it is the policy of OSM to: 

(1) 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. 

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

tribal governments, grant Indian tribal governments the maximum administrative discretion 

possible. 

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

implications,: 

(a) Encourage Indian tribes to develop their own policies to achieve 

program objectives; 

(b) Where possible, defer to Indian tribes to establish standards; and 

(c) 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 oflndian tribes. 

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(4) Have an accountable process to ensure meaningful and timely input by 

tribal officials in the development of regulatory policies that have tribal implications. 

(5) To the extent practicable and permitted by law, not promulgate any 

regulation that has tribal implications and that either preempts tribal law or imposes substantial 

direct compliance costs on Indian tribal governments and is not required by statute, unless: 

(a) The funds necessary to the direct costs incurred by the Indian tribe in 

complying with the regulation are provided by the Federal Government; or 

(b) Prior to the formal promulgation of the regulation the bureau consults with 

tribal officials early in the process of developing the proposed regulation. 

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

Indian tribal treaty and other rights, explore and, where appropriate, use consensual mechanisms 

for developing regulations, including negotiated rulemaking. 

(7) Increase flexibility for Indian Tribal Waivers by reviewing the processes 

under which Indian tribes apply for waivers of statutory and regulatory requirements and take 

appropriate steps to streamline those processes. 

f. An Indian tribe may request that OSM initiate consultation when the tribe 

believes that OSM is considering an action with tribal implications. Requests should be made in 

writing to the TLO, or other appropriate individuals, and should describe the specific action with 

tribal implications. However, in the event that an Indian tribe may choose not to engage the 

TLO, OSM is not relieved of its obligation to engage in consultation as described by this policy. 

If OSM initiates consultation with a tribe but does not receive a response, OSM should make 

reasonable and periodic efforts to repeat the invitation and, whenever feasible, should allow an 

Indian tribe to join an ongoing consultation. These efforts of engagement shall be appropriately 

documented. 

g. In implementing this policy, OSM personnel must consider the following 

documents: 

(1) Executive Order No. 12866, Sept. 30, 1993 ("Regulatory Planning and 

Review"), which requires agencies where appropriate, to address specific or unique needs of 

tribal communities. 

(2) Presidential Memorandum, April 29, 1994, entitled "Government-toGovernment Relations with Native American Tribal Governments," which requires Federal 

agencies, to the greatest extent practicable and to the extent permitted by law, to consult with 

tribal governments before taking actions that affect federally recognized Indian tribes. Activities 

that affect Indian tribal rights or trust resources should be implemented in a knowledgeable, 

sensitive manner respectful of tribal sovereignty. Agencies are required to assess the impact of 

Federal government plans, projects, programs, and activities on tribal trust resources and assure 

that tribal government rights and concerns are considered during the development of such plans, 

projects, programs, and activities. 

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(3) Executive Order 13175, dated November 6, 2000, entitled "Consultation 

and Coordination with Indian Tribal Governments." 

(4) Presidential Memorandum of November 5, 2009, which obligates the 

Department of the Interior to meet the spirit and intent of Executive Order 1317 5. 

(5) Secretarial Order 3317, the Department of the Interior Policy on 

Consultation with Indian tribes, dated December 1, 2011. 

5. Responsibilities. 

a. The Director 

(l) Is responsible for being aware of the impact of OSM programs, projects, 

and actions on Indian lands and trust resources. 

(2) Is responsible for ensuring that OSM personnel are fully aware of their 

responsibilities to identify, protect and conserve tribal trust lands and resources and to consult 

with Indian tribes. 

(3) Will appoint one or more Tribal Liaison Officials. 

b. The Assistant Director-Program Support is responsible for ensuring national 

policy direction and guidance. 

c. The Regional Directors are responsible for ensuring compliance with the policies 

and procedures in this directive. 

d. The Tribal Liaison Officer CTLO) 

(1) Works with OSM employees to achieve compliance with this directive. 

(2) Promotes and facilitates consultation and collaboration between OSM and 

Indian tribes. 

(3) Advocates opportunities for, and consideration of, the positions of Indian 

tribes, to the extent those opportunities and positions are consistent with OSM's mission and 

legal requirements. 

( 4) Serves as the principal point of contact with the Department's Tribal 

Governance Official. 

(5) Strives to establish and maintain a trusting, ongoing relationship with 

Indian tribes, consistent with applicable law and executive orders. 

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(6) Serves as the initial point of contact for Indian tribes to request or inquire 

about consultation. 

(7) Prepares an annual report on the tribal consultation activities that he or she 

conducted or facilitated during the preceding year. 

6. Procedures. 

a. As required by the Departmental Manual, 512 DM 2, OSM must assess early in 

the planning, development or review of proposed programs, AML reclamation projects, mining 

operations or other activities, including rulemaking actions, the potential impact of the proposed 

activities on Indian lands and tribal trust resources. 

b. Unless otherwise required by law, OSM must avoid actions that may negatively 

impact tribal treaty rights or tribal trust resources. 

c. If OSM's evaluation of a proposed activity reveals any potential impact on Indian 

lands or trust resources, OSM must consult directly with the federally recognized tribal 

government with jurisdiction over the Indian lands or tribal trust resources that may be affected. 

Consultations with tribal governments must be open and candid so that all interested parties may 

evaluate for themselves the potential impact of the proposal on Indian lands and tribal trust 

resources. 

d. If OSM's evaluation of the proposed activity reveals any potential direct or 

indirect impacts on tribal trust lands or tribal trust resources, OSM must also consult with the 

appropriate office of the Bureau oflndian Affairs and, if appropriate, the Office of the Solicitor. 

e. OSM must ensure that any anticipated effects of proposed reclamation projects or 

coal mining operations on Indian lands and tribal trust resources are explicitly addressed in the 

planning and decision documents for those projects or operations, including, but not limited to, 

environmental assessments or environmental impact statements, permits, and other decision 

documents. These documents must clearly state the rationale for OSM's recommended decision 

on the proposal and explain how the decision will be consistent with the Department's and 

OSM's responsibilities to identify, protect, and conserve tribal trust resources and Indian lands. 

f. When considering an action with tribal implications, OSM must notify the 

appropriate Indian tribe(s) of the opportunity to consult pursuant to this directive. OSM will 

strive to ensure that a notice is given at least 30 days prior to scheduling a consultation. If 

exceptional circumstances prevent notice within 30 days of the consultation, the notice must 

explain the abbreviated notification. The tribe may request an extension for timelines associated 

with this Policy. The notice will include: 

(1) A description of the topic(s) to be discussed in sufficient detail of the topic 

to be discussed to allow Tribal leaders an opportunity to fully engage in the consultation, 

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(2) A timeline of the process, 

(3) Possible outcomes, and 

(4) The opportunity to provide feedback prior to the consultation, including 

any request for technical assistance or request for clarification of how the consultation process 

conforms to this directive. 

g. OSM will carry out the consultation stages described below for an Action with 

Tribal Implications, except as described under paragraph h of this section. 

(1) Initial Planning Stage. OSM will consult with Indian tribes as early as 

possible when considering an action with tribal implications. OSM may conduct a meeting or 

other forms of interaction with tribes in order to receive and evaluate comments received as part 

of the initial planning stage. OSM will work with other Federal agencies, where appropriate, to 

avoid duplicative consultations. 

(2) Proposal Development Stage. The proposal development stage begins 

once OSM discloses the scope of an action with tribal implications. Indian tribes should be 

considered appropriate collaborative partners, particularly where negotiated rulemaking or a 

Tribal Leader Task Force is created. 

OSM will maximize the opportunity for timely input by Indian tribes, consistent with 

both Tribal and OSM schedules. OSM will solicit the views of affected Indian tribes on the 

process timeline for consultation on a Action with Tribal Implications. OSM will work with 

Indian tribes to structure a process, to the extent feasible, that considers specific Indian tribes 

structure, traditional needs, and schedules of the Indian tribe. OSM will make all reasonable 

efforts to comply with the expressed views of the affected Indian tribes regarding the process 

time line at this Stage, taking into account the level of impact, the scope, and the complexity of the 

issues involved in the Action with Tribal Implications, along with the other factors driving the 

schedule. The process will be open and transparent. OSM will proceed with the expectation that 

interested Indian tribes will respond within a reasonable time period. 

When the matter under consultation involves confidential or culturally sensitive information, 

OSM will work with the Indian tribe to develop a consultation process that addresses the sensitivity 

of the information to the extent permitted by Federal law. If litigation or legal requirements impact 

OSM's schedule for conducting consultation, OSM will explain these constraints to the Indian tribe. 

Examples of appropriate processes for the Proposal Development Stage include, but are not 

limited to, the following: 

(a) Negotiated Rulemaking. Where appropriate, OSM shall consider 

using negotiated rulemaking for developing significant regulations or other formal policies in 

accordance with the Federal Advisory Committee Act (F ACA) and the Negotiated Rulemaking Act. 

(b) Tribal Leader Task Force. A Tribal Leader Task Force may be used, 

in appropriate circumstances, on regional or issue-specific matters (e.g., regional guidance). In each 

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instance, the composition of the Task Force shall be collaboratively determined by the Indian tribes, 

provided that the Task Force shall be a process open to all Indian tribes and, to the extent possible, 

represent a cross-section of Tribal interests with respect to the matter at issue. The location and 

number of meetings to be held will conform to the expressed views of the Indian tribes, to the extent 

practicable and permitted by law and in accordance with F ACA. 

( c) Series of Open Tribal Meetings. OSM may provide open invitations 

for Tribal leaders to attend a series of open meetings. Open meetings can be used for national, 

regional or subject-matter specific issues. 

(d) Single Meetings. OSM may host Tribal Officials in a single meeting 

to discuss a Departmental Action with Tribal Implications under consideration. Single meetings are 

particularly appropriate for local or regional issues, or a tribe-specific issue. 

If OSM determines that the Administrative Procedure Act or other Federal law or regulation 

expressly prohibits continued discussion at a specified point in the decision-making process, OSM 

will inform the Indian tribes at the earliest opportunity in this stage in the process. 

(3) Implementation of Final Federal Action Stage. 

(a) OSM may consider implementing a post-consultation review process 

where it is consistent with law, regulations, and EO 13175. The review process must not limit the 

Department's deliberative process privilege regarding internal considerations or any other applicable 

privilege. 

(b) OSM may invite feedback from the Indian tribe of the consultation 

process at this Stage. 

( c) OSM must also consider the need for training or technical assistance 

concerning the final Federal action. 

(d) If the action with tribal implication involves rulemaking, the 

preamble to the regulation must include a description of the extent of OSM' s consultation with 

tribal officials, a summary of the nature of their concerns and OSM'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. OSM will also make available to the Director of the Office of Management and 

Budget any written communications submitted to the agency by tribal officials. 

h. Consultation and Coordination Procedures for Regulatory Programs: 

(1) OSM responsibilities and consultation requirements for surface coal 

mining and reclamation operations on Indian lands are set forth generally in 30 CFR Part 750. 

(2) Consultation requirements for proposed permitting actions may vary 

somewhat depending upon the ownership status of the lands involved in a particular permitting 

proposal. For proposed permitting actions involving lands within Federal reservation boundaries 

and off-reservation tribal trust lands, the FPE must consult with the affected Indian tribe. For 

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proposed permitting actions involving tribal fee lands, the FPE must consult with the tribal 

owner of the mineral and/or surface estate. OSM must: 

(a) Provide the appropriate tribal government offices with copies of 

proposed permitting actions, submitted by applicants, for their review and comment prior to 

OSM taking a final action on the proposal. 

(b) Give the Tribal governments a minimum of thirty days to provide 

comments. 

( c) Consider the tribe's comments in reaching its decision on the 

proposed permitting action. If OSM disagrees with the tribe's comments on a permitting 

proposal, OSM must provide the tribe with a timely written response clearly explaining the 

rationale for OSM's position. 

( d) Provide the affected tribe with copies of all relevant 

correspondence relating to the permitting action, as well as copies of the Federal permit, 

including all revisions, for approved mining operations. Tribal governments are invited to all 

meetings with OSM and other interested parties on proposed OSM actions with Tribal 

implications. 

( e) Make reasonable and periodic efforts to repeat the invitation if 

OSM initiates consultation with a tribe but does not receive a response, and, whenever feasible, 

should allow an Indian tribe to join an ongoing consultation. These efforts must be appropriately 

documented. 

(f) As appropriate, conduct quarterly meetings with the tribes and 

representative of the Bureau of Indian Affairs and the Bureau of Land Management to discuss 

ongoing mining and reclamation activities on tribal trust lands. 

(3) Exceptions to the consultation procedures in paragraph (2) may occur with 

respect to certain minor revisions when expedited review of such revisions is necessary due to 

unforeseen circumstances and the environmental impacts of approving such revisions would be 

negligible. Such situations might include relocation of topsoil stockpiles, minor realignments of 

existing roads, or minor modifications to existing office facilities or other structures. In these 

circumstances, OSM may issue a permitting decision on the proposed revision without prior 

consultation with the affected Indian tribe or other Federal agencies or may conduct such 

consultation by telephone in lieu of the normal consultation process, if all parties agree. 

( 4) For allotted lands located outside the boundaries of Federal Indian 

reservations that are not supervised by an Indian tribe and are thus subject to state regulation in 

primacy states, OSM is responsible for ensuring that the state regulatory authority consults with 

the appropriate BIA office concerning mining and reclamation proposals involving those lands. 

7. Reporting Requirements. Each year, the Director will submit a report to the 

Department's Tribal Governance Officer that summarizes the bureau's efforts during the 

preceding year to conduct and promote consultation with Indian tribes. To prepare this report, 

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the Western Regional Director will combine and consolidate individual reports from the Tribal 

Liaison Officers. These reports will be submitted no later than 60 days after the end of the fiscal 

year. 

The report must include: 

a. The scope of consultation activities, including a narrative within the report 

describing significant consultation efforts. 

b. A description of budget expenditures in the execution of consultation activities. 

c. The effectiveness of consultation activities. 

d. A list of the topics upon which OSM conducted consultation. 

e. Any Departmental training on consultation that was provided to either OSM 

employees or Indian tribes. 

f. Any innovations in consultation. 

g. The engagement of senior leadership in consultation activities. 

h. When possible, comments from Indian tribes with whom OSM has conducted 

consultation. 

1. A discussion of any post-consultation reviews conducted. 

J. Forthcoming consultation opportunities. 

8. Effect on Other Documents. This directive supersedes OSM Directive REG-18, 

"Protection of Indian Lands and Indian Trust Resources," issued on March 28, 1996. 

9. References. 

a. Department of the Interior Manual, Part 512, Chapter 2, "Departmental 

Responsibilities for Indian Trust Resources." 

b. Presidential Memorandum of April 29, 1994: "Government-to-Government 

Relations with Native American Tribal Governments" (59 FR 22951; May 4, 1994). 

c. Executive Order 12866, "Regulatory Planning and Review," September 30, 1993. 

d. Advisory Memorandum dated February 24, 1995, from Assistant Secretary for 

Indian Affairs, "Guidance on the Federal/Tribal Government-to-Government Policy." 

e. Executive Order 13175, "Consultation and Coordination with Indian Tribal 

Governments," November 6, 2000, 65 FR 67249-67252. 

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f. Presidential memorandum for the heads of executive departments and agencies on 

Tribal Consultation, November 5, 2009, complete and consistent implementation of Executive 

Order 13175. 

g. Secretarial Order 3 317, Department of the Interior Policy on Consultation with 

Indian tribes, December 1, 2011. 

h. Department of the Interior Policy on Consultation with Indian tribes, as 

referenced in Secretarial Order 3317, dated December 1, 2011. 

10. Effective Date. Upon issuance 

11. Distribution. By electronic means 

12. Keywords. Tribal consultation, Indian lands, trust resources, trust responsibilities, 

allotted lands. 

13. Appendices. 

Department of the Interior Policy on Consultation with Indian tribes, as referenced in Secretarial 

Order 3317, dated December 1, 2011 . 

Contact: Regional Director, OSM Western Region, Denver, Colorado; phone number: 303-293-

5000 

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