Consultation and Communication with Indian Tr ibal Governments – Tips for Establishing a Productive Relationship

Background

Before we address the details and procedures for co nsulting with Indian Tribes, it is important to understand the federal government’s re lationship with Tribes and some of the basic principles underlying the importance of Tribal consultation. The fede ral government has a unique government-to-government relationship with federally-recognized Indian Tribes th at arises from Indian treaties, statutes, executive orders, and the historical relations between the Un ited States and Indian Nations. Among other things, the federal government has a trust responsibility to fede rally-recognized Tribes, and EPA, like other federal agencies, must act in accordance with that trust respons ibility when taking actions that affect Tribes. Part of this responsibility includes a need to consult w ith 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 prot ect 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 Governme nts in making decisions and managing environmental programs affecting reservation lands” (EPA Policy fo r 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-Governme nt 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 th e relationship between the Federal Government and Indian Tribes, or on the distribution of power a nd 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 r esponsible for the well-being of an entire tribal community and he/she focuses on the overall governme nt 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 a nd to prepare more effectively for consultation.

· Consultation generally consists of meaningful and timely communication between EPA officials and tribal government officials in developing Ag ency actions that affect tribes. Consultation means open sharing of information, the full expressi on of tribal and EPA views, a commitment to hear and understand tribal views in decision-making, and respect for tribal self-government and sovereignty.· Consultation vs. Participation/Collaboration: It is important to distinguish between governmentto-government consultation and pa rticipation/collaboration of trib al 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: Govern ment-to-government consultation recognizes and ensures the federal government’s trust res ponsibility to protect tribal sovereignty.

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

environmental office structure also varies from tribe to tribe.

· Where appropriate, a participation/collaboration pl an 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 th e tribal community’s practices.

· Getting the Ball Rolling:

o Communication between the regional tribal coordinator, permit program staff, and regional counsel or Office of Ge neral 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

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 (tri bal coordinator, permit program, legal counsel, etc.) for advice.

o Tribal members favor their privacy when it co mes to customs, practices, use of tribal lands, natural resources, language, to name a few.

· Be Aware of Your Perceptions and Be Open-Mi nded: It is natural for us to apply our own experiences, based on our own way of life, to new s ituations. However, we need to be aware that certain aspects and/or lifestyle of a tribe can diffe r greatly from mainstream U.S. culture. When working with a tribe, be aware of these differen ces. Communication with tribal members can be productive if you better understand the unique issu es 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 communica tion 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 sp ecific information regarding these resources. Be prepared to discuss with each trib e whether there are issues of unique sensitivity to the tribe. If atribe is not willing to provide specific data regarding cultural factors, try to find other ways to document the tribe’s general concerns.