I 

114TH CONGRESS 

2D SESSION H. R. 5379 

To prescribe procedures for effective consultation and coordination by Federal 

agencies with federally recognized Indian tribes regarding Federal Government activities that impact tribal lands and interests to ensure that 

meaningful tribal input is an integral part of the Federal decisionmaking 

process. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 3, 2016 

Mr. GRIJALVA introduced the following bill; which was referred to the 

Committee on Natural Resources 

A BILL 

To prescribe procedures for effective consultation and coordination by Federal agencies with federally recognized Indian tribes regarding Federal Government activities that 

impact tribal lands and interests to ensure that meaningful tribal input is an integral part of the Federal decisionmaking process. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Requirements, Expectations, and Standard Procedures 


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1 for Executive Consultation with Tribes Act’’ or the ‘‘RE2 SPECT Act’’. 

3 (b) TABLE OF CONTENTS.—The table of contents of 

4 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purposes. 

Sec. 3. Sense of Congress. 

Sec. 4. Definitions. 

TITLE I—CONSULTATION PROCEDURE 

Sec. 101. Requirement for consultation. 

Sec. 102. Timing. 

Sec. 103. Scoping stage consultation. 

Sec. 104. Decision stage procedures. 

Sec. 105. Documentation and reporting. 

Sec. 106. Implementation. 

Sec. 107. Sensitive tribal information. 

TITLE II—TRIBAL SOVEREIGNTY 

Sec. 201. Tribal sovereignty. 

TITLE III—INDIAN TRIBAL WAIVERS 

Sec. 301. Indian tribal waivers. 

TITLE IV—JUDICIAL REVIEW 

Sec. 401. Judicial review. 

5 SEC. 2. FINDINGS AND PURPOSES. 

6 (a) FINDINGS.—The Congress finds that— 

7 (1) the United States has a unique, legally af8 firmed government-to-government relationship with 

9 Indian tribal governments as set forth in the Con10 stitution of the United States, treaties, statutes, Ex11 ecutive orders, and court decisions; 

12 (2) the United States recognizes the right of In13 dian tribes to self-government and supports tribal 

14 sovereignty and self-determination; 


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1 (3) the United States has enacted numerous 

2 statutes and promulgated numerous regulations that 

3 establish and define a trust relationship with Indian 

4 tribes; 

5 (4) the United States has a responsibility to 

6 consult with Indian tribes on a government-to-gov7 ernment basis when formulating policies and under8 taking activities that will have impacts on tribal 

9 lands and interests; 

10 (5) procedures for such consultation should be 

11 designed and structured to give Indian tribes oppor12 tunities to provide meaningful, informed input 

13 throughout the development and decisionmaking 

14 processes; 

15 (6) building institutional knowledge and capac16 ity for effective consultation fosters greater effi17 ciency and benefits for future projects; 

18 (7) the consultation process should be institu19 tionalized according to best practices that are de20 signed and administered by the agency and that ful21 fill the legal requirements mandated by this Act; 

22 (8) consulting with Indian tribes during the for23 mulation of long-term management plans reduces 

24 the likelihood of project delays and increases the ef25 ficiency of project implementations; and 


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1 (9) effective consultation demands ongoing, re2 spectful communication between agencies and Indian 

3 tribes. 

4 (b) PURPOSES.—The purposes of this Act are— 

5 (1) to establish and support a process of reg6 ular, meaningful consultation and collaboration with 

7 Indian tribes in the development of Federal policies 

8 and the initiation of Federal activities that impact 

9 tribal lands and interests; 

10 (2) to strengthen the United States govern11 ment-to-government relationships with Indian tribes; 

12 (3) to establish minimum standard procedures 

13 to ensure the above goals are achieved; and 

14 (4) to recognize tribal regulatory authority and 

15 jurisdiction generally, and specifically through the 

16 waiver process. 

17 SEC. 3. SENSE OF CONGRESS. 

18 It is the sense of the Congress that— 

19 (1) consultation constitutes more than simply 

20 notifying an Indian tribe about a planned under21 taking; 

22 (2) effective, meaningful consultation requires a 

23 two-way exchange of information, a willingness to 

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1 comes, and a seeking of agreement on how to pro2 ceed concerning the issues at hand; and 

3 (3) consultation can be considered effective and 

4 meaningful when each party demonstrates a genuine 

5 commitment to learn, acknowledge, and respect the 

6 positions, perspectives, and concerns of the other 

7 parties. 

8 SEC. 4. DEFINITIONS. 

9 For the purposes of this Act: 

10 (1) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 

11 has the meaning given that term in section 4 of the 

12 Indian Self-Determination and Education Assistance 

13 Act (25 U.S.C. 450b). 

14 (2) AGENCY.—The term ‘‘agency’’ means any 

15 authority of the United States that is an ‘‘agency’’ 

16 under section 3502(1) of title 44, United States 

17 Code. 

18 (3) ACTIVITY.—The term ‘‘activity’’ means any 

19 agency regulation, rulemaking, policy, guidance, leg20 islative proposal, grant funding formula change, or 

21 operational activity that may have a substantial di22 rect effect on an Indian tribe on matters including— 

23 (A) tribal cultural practices, lands, re24 sources, or access to traditional areas of culVerDate Sep 11 2014 21:45 Jun 03, 2016 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5379.IH H5379

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1 tural or religious importance on federally man2 aged land; 

3 (B) the ability of an Indian tribe to govern 

4 or provide services to its members; 

5 (C) an Indian tribe’s formal relationship 

6 with the agency; or 

7 (D) the consideration of the agency’s trust 

8 responsibilities to Indian tribes. 

9 (4) SACRED SITE.—The term ‘‘sacred site’’ 

10 means any specific, discrete, narrowly delineated lo11 cation on Federal land that is identified by an In12 dian tribe— 

13 (A) as sacred by virtue of its established 

14 religious significance to, or ceremonial use by, 

15 an Indian religion; or 

16 (B) to be of established cultural signifi17 cance. 

18 (5) MEMORANDUM OF AGREEMENT.—The term 

19 ‘‘memorandum of agreement’’ means a document 

20 that records the terms and conditions agreed upon 

21 by an agency and an Indian tribe through the con22 sultation process regarding an activity, including any 

23 measures to be taken to resolve or mitigate adverse 

24 impacts on the Indian tribe. 


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1 (6) NEW DISCOVERY.—The term ‘‘new dis2 covery’’ means any unexpected development that oc3 curs during the course of an activity, such as the 

4 discovery of a new archeological site, unanticipated 

5 impacts on organisms or ecosystems, or the realiza6 tion of unintended consequences of a new regulation, 

7 that may have impacts on tribal lands and interests. 

8 (7) STANDARD PROCESS.—The term ‘‘standard 

9 process’’ means a streamlined process for agency-In10 dian tribe interaction agreed to by both parties 

11 through consultation and certified in a memorandum 

12 of agreement that applies to certain specified activi13 ties or limited categories of activities. 

14 TITLE I—CONSULTATION 

15 PROCEDURE 

16 SEC. 101. REQUIREMENT FOR CONSULTATION. 

17 (a) SCOPE.—Agencies shall have an accountable 

18 process to ensure meaningful and timely input by Indian 

19 tribes and tribal officials prior to undertaking any activity 

20 that may have substantial direct impacts on the lands or 

21 interests of one or more Indian tribes, on the relationship 

22 between the Federal Government and Indian tribes, or on 

23 the distribution of power and responsibilities between the 

24 Federal Government and Indian tribes. Consultation with 

25 Indian tribes shall occur for all activities that would affect 


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1 any part of any Federal land that shares a border with 

2 Indian country as defined in section 1151 of title 18, 

3 United States Code, but is not limited to activities on such 

4 lands. 

5 (b) MULTI-AGENCY ACTIVITIES.—In the case of 

6 agency-drafted proposed legislation, the drafting agency, 

7 and any other agency that will be implementing the legis8 lation, shall each be considered involved in the activity. 

9 If more than one agency is involved in an activity, some 

10 or all of the agencies may designate a lead agency, which 

11 shall fulfill their collective consultation responsibilities. 

12 Those agencies that do not designate a lead agency shall 

13 remain individually responsible for their consultation re14 sponsibilities under this Act. 

15 (c) LIMITATION.—Nothing in this Act shall exempt 

16 an agency from additional consultation required under any 

17 other law or from taking any other consultative actions 

18 as required by any other law or agency prerogative in addi19 tion to those required by this Act. Nor does it preclude 

20 an agency from additional consultation that complies with 

21 agency regulations for consultation, advances agency con22 sultation practices, or supports agency efforts to build or 

23 strengthen government-to-government relationships with 

24 Indian tribes. 

25 (d) TEMPORARY WAIVER.— 


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1 (1) IN GENERAL.—The agency may temporarily 

2 waive the requirements of this title in all or any por3 tion of any emergency area during all or any portion 

4 of an emergency period. 

5 (2) DURATION OF WAIVER.—A temporary waiv6 er under this subsection shall end upon the termi7 nation of the applicable emergency period. 

8 (3) DEFINITIONS.—For the purposes of this 

9 subsection— 

10 (A) the term ‘‘emergency area’’ means a 

11 geographical area in which there exists an 

12 emergency or disaster declared by the President 

13 pursuant to the National Emergencies Act 

14 (Public Law 94–412) or the Robert T. Stafford 

15 Disaster Relief and Emergency Assistance Act 

16 (Public Law 93–288); and 

17 (B) the term ‘‘emergency period’’ means 

18 the period during which there exists an emer19 gency or disaster declared by the President pur20 suant to the National Emergencies Act (Public 

21 Law 94–412) or the Robert T. Stafford Dis22 aster Relief and Emergency Assistance Act 

23 (Public Law 93–288). 


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1 SEC. 102. TIMING. 

2 Consultation under sections 103 and 104 shall be 

3 completed before any Federal funds are expended for the 

4 activity and before the issuance of any license other than 

5 for funding nondestructive project planning activities. 

6 SEC. 103. SCOPING STAGE CONSULTATION. 

7 (a) PLANNING DOCUMENT.—As early as possible in 

8 the planning stage of an activity, the agency shall compile 

9 a draft of the scope of the project, including any geo10 graphic areas important to Indian tribes that might be 

11 affected and any other anticipated tribal impacts. The 

12 agency shall make a good faith effort to include areas that 

13 contain sites important to Indian tribes whether or not 

14 such sites are explicitly known to the agency. 

15 (b) INITIAL CONSULTATION CONTACT.—The agen16 cy— 

17 (1) shall send, via United States mail and, if 

18 possible, email, a copy of the planning document and 

19 a letter requesting consultation meetings to the rel20 evant tribal government officials, including the tribal 

21 leader and all members of any elected tribal gov22 erning body, relevant tribal governmental agencies 

23 (including the Tribal Historic Preservation Officer 

24 or cultural resource manager), and relevant non25 tribal stakeholders (including the State Historic 

26 Preservation Officer and local governments that 


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1 have jurisdiction on any affected land via agreement 

2 with the agency); 

3 (2) at the request of an affected Indian tribe, 

4 shall send, via United States mail and, if possible, 

5 email, a copy of the planning document and a letter 

6 requesting consultation meetings to nongovern7 mental tribal stakeholders, such as elders councils 

8 and religious leaders; 

9 (3) shall not request consultation with non10 governmental tribal stakeholders without the written 

11 consent of the affected Indian tribe; and 

12 (4) shall follow up with phone calls to confirm 

13 receipt of the documents by all intended recipients. 

14 (c) CONSULTATION MEETING ARRANGEMENTS.—The 

15 agency shall negotiate with the affected Indian tribes to 

16 determine the time, place, agenda, travel funds, facilitator, 

17 format, and goals of a consultation meeting. The agency 

18 shall keep thorough documentation of all steps taken to 

19 contact and engage the affected Indian tribes in consulta20 tion. If, after a good faith effort, the agency fails to en21 gage the affected Indian tribes, it may terminate its 

22 scoping stage consultation efforts by providing all con23 sultation partners with a written notification and expla24 nation for its decision, signed by the head of the agency, 


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1 and proceed to the decision stage procedures described in 

2 section 104. 

3 (d) SCOPING STAGE CONSULTATION MEETING.—A 

4 scoping stage consultation meeting shall begin with con5 firmation of the format, facilitator, and agenda, with ade6 quate time scheduled for introductions and for interaction 

7 throughout the meeting among participants. Whenever 

8 possible, tribal stakeholders shall be brought into the on9 going planning process directly by forming ad hoc 

10 workgroups (including tribal leaders or their designees) 

11 and, if appropriate, initiating a process for consensual de12 velopment of regulations, such as negotiated rulemaking. 

13 Scoping stage consultation meeting shall conclude with 

14 planning for the next meeting, if necessary. 

15 (e) TERMINATION OF SCOPING STAGE CONSULTA16 TION WITH A MEMORANDUM OF AGREEMENT.— 

17 (1) TERMINATION.—Except as provided by sub18 section (c), scoping stage consultation shall termi19 nate upon the execution of a memorandum of agree20 ment signed by the head of the agency and the af21 fected Indian tribal governments. 

22 (2) SIGNATORIES.—The affected Indian tribal 

23 governments and the agency may jointly invite addi24 tional parties to be signatories of the memorandum 

25 of agreement. The signatories have sole authority to 


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1 execute, amend, or terminate the memorandum of 

2 agreement. If any signatory determines that the 

3 terms of the memorandum of agreement cannot be 

4 or are not being carried out, the signatories shall 

5 consult to seek amendment of the memorandum of 

6 agreement. If the memorandum of agreement is not 

7 amended, any signatory may terminate the agree8 ment, with the option to return to scoping stage con9 sultation. The agency shall provide all nonsignatory 

10 consulting partners with the opportunity to submit 

11 a written statement, explanation, or comment on the 

12 consultation proceedings that shall become part of 

13 the agency’s official consultation record. 

14 (3) MOA.—The memorandum of agreement— 

15 (A) may address multiple activities if the 

16 activities are similar and repetitive or are multi17 State or regional in scope, or where routine 

18 management activities are undertaken at Fed19 eral installations, facilities, or other land man20 agement units; 

21 (B) may establish standard processes for 

22 certain categories of activities determined 

23 through consultation and defined in the memo24 randum of agreement; 


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1 (C) shall include a provision for monitoring 

2 and reporting on its implementation; 

3 (D) shall include provisions for termination 

4 or reconsideration if the activity has not been 

5 completed within a specified time; and 

6 (E) shall include provisions to address new 

7 discoveries, which may include halting the activ8 ity and returning to scoping stage consultation. 

9 (f) TERMINATION OF SCOPING STAGE CONSULTA10 TION WITHOUT A MEMORANDUM OF AGREEMENT.—The 

11 agency shall make a good faith effort through sustained 

12 interaction and collaboration to reach a consensus result13 ing in a memorandum of agreement. If, after a good faith 

14 effort, the agency determines that further consultation will 

15 not be productive, it may terminate consultation by pro16 viding all consultation partners with a written notification 

17 and explanation for its decision, signed by the head of the 

18 agency, and proceed to the decision stage procedures de19 scribed in section 104. The affected Indian tribal govern20 ments may at any point decide to terminate consultation. 

21 In such case, the agency shall provide the affected Indian 

22 tribal governments with the opportunity to submit a writ23 ten statement, explanation, or comment on the consulta24 tion proceedings that will become part of the agency’s offi25 cial consultation record. 


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1 SEC. 104. DECISION STAGE PROCEDURES. 

2 (a) PROPOSAL DOCUMENT.—The agency shall com3 pile a document consisting of the plan for the activity, its 

4 anticipated tribal impacts, any memorandum of agree5 ment, and any written statements made by consulting 

6 partners during the scoping stage as described in section 

7 103. The agency shall include sufficient supporting docu8 mentation to the extent permitted by law and within avail9 able funds to enable any reviewing parties to understand 

10 its basis. The agency may use documentation prepared to 

11 comply with other laws to fulfill the requirements of this 

12 provision to the extent that such documentation is suffi13 ciently pertinent to and focused on the relevant issues as 

14 to allow reasonable ease of review. The agency shall mail 

15 and, if possible, email a copy of the Proposal Document 

16 to all affected Indian tribal governments, including those 

17 that withdrew from the process. At a minimum, the docu18 ment shall go to the tribal leader and all members of any 

19 elected tribal governing body. The agency shall follow up 

20 to confirm receipt of the document. After these steps have 

21 been completed, the Proposal Document shall be published 

22 in the Federal Register, subject to the provisions of section 

23 107. 

24 (b) PUBLIC COMMENT PERIOD.—The agency shall 

25 provide a period of not less than 90 days after publication 

26 in the Federal Register for comments on the Proposal 


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1 Document. A 30-day extension shall be granted upon re2 quest by any member of any of the affected Indian tribal 

3 governing bodies. 

4 (c) PRELIMINARY DECISION.—After expiration of the 

5 comment period, the agency shall prepare a preliminary 

6 decision letter, signed by the head of the agency. The let7 ter shall state the decision to proceed or not proceed with 

8 the activity, the decision’s rationale, any changes in the 

9 proposal made in response to comments, and any points 

10 where the decision conflicts with the expressed requests 

11 of any of the affected Indian tribes. It shall particularly 

12 address why the decision was made to disregard any such 

13 requests. The agency shall mail and, if possible, email a 

14 copy of the letter to all affected Indian tribal governments, 

15 including those that withdrew from the process. At a min16 imum, the letter shall go to the tribal leader and all mem17 bers of the tribal governing body. The agency shall follow 

18 up to confirm receipt of the letter. 

19 (d) FINAL DECISION.—The agency shall provide a 

20 60-day period following the issuance of the preliminary de21 cision letter for response by the affected Indian tribes. 

22 Thereafter, the agency shall notify in writing, signed by 

23 the head of the agency, the affected Indian tribal govern24 ments, including those that withdrew from the process, of 

25 the agency’s final decision. 


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1 SEC. 105. DOCUMENTATION AND REPORTING. 

2 (a) OFFICIAL CONSULTATION RECORD.—The agency 

3 shall keep an official consultation record that allows accu4 rate tracking of the process so that agencies and con5 sulting parties can correct any errors or omissions, and 

6 provides an official record of the process that can be re7 ferred to in any litigation that may arise. The agency shall 

8 document all efforts to initiate consultation as well as doc9 umenting the process once it has begun. Such documenta10 tion, including, but not limited to, correspondence, tele11 phone logs, and emails, shall be included in the agency’s 

12 official consultation record. The agency shall also keep 

13 notes so that the consultation record documents the con14 tent of consultation meetings, site visits, and phone calls 

15 in addition to information about dates and who partici16 pated. 

17 (b) PAYMENT FOR TRIBAL DOCUMENTATION

18 WORK.—If the agency asks an Indian tribe for specific 

19 information or documentation regarding the location, na20 ture, and condition of individual sites, to conduct a survey, 

21 or in any way fulfill the duties of the agency in a role 

22 similar to that of a consultant or contractor, then the 

23 agency must pay for such services, if so requested by the 

24 Indian tribe, as it would for any private consultant or con25 tractor. 


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1 (c) REPORT TO CONGRESS.—Each agency shall on a 

2 biennial basis submit to Congress a report on its consulta3 tion activities. 

4 SEC. 106. IMPLEMENTATION. 

5 Not later than 30 days after the date of the enact6 ment of this Act, the head of each agency shall designate 

7 an official with principal responsibility for the agency’s re8 view of existing consultation and coordination policies and 

9 procedures, and implementation of this Act. Not later than 

10 60 days after the effective date of this order, the des11 ignated official shall submit to the Office of Management 

12 and Budget a description of the agency’s revised consulta13 tion process in conformity with this Act. 

14 SEC. 107. SENSITIVE TRIBAL INFORMATION. 

15 Notwithstanding any provision of the Administrative 

16 Procedures Act, consultation meetings shall be closed to 

17 the public at the request of the Indian tribal government. 

18 Notwithstanding any provision of the Freedom of Infor19 mation Act, all information designated by the Indian tribe 

20 as sensitive, such as the location of Sacred Sites or other 

21 details of cultural or religious practices, shall be deleted 

22 from any public publication made as part of the consulta23 tion process or in the process of carrying out the activity. 

24 Once information has been designated as sensitive, the 

25 agency will determine in consultation with the Indian tribe 


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1 who may have access to the information for the purposes 

2 of carrying out the activity. 

3 TITLE II—TRIBAL SOVEREIGNTY 

4 SEC. 201. TRIBAL SOVEREIGNTY. 

5 (a) IN GENERAL.—Agencies shall recognize and re6 spect Indian tribal self-government and sovereignty, honor 

7 tribal treaty and other rights, and strive to meet the re8 sponsibilities that arise from the unique legal relationship 

9 between the Federal Government and Indian tribal gov10 ernments. 

11 (b) MAXIMUM TRIBAL ADMINISTRATIVE DISCRE12 TION.—With respect to Federal statutes and regulations 

13 administered by Indian tribal governments, the Federal 

14 Government shall grant Indian tribal governments the 

15 maximum administrative discretion possible. 

16 (c) ALTERNATIVES TO FEDERAL REGULATION.— 

17 When undertaking to formulate and implement policies 

18 that have tribal implications, agencies shall— 

19 (1) encourage Indian tribes to develop their own 

20 policies to achieve program objectives; 

21 (2) where possible, defer to Indian tribes to es22 tablish standards; and 

23 (3) in determining whether to establish Federal 

24 standards, consult with tribal officials as to the need 

25 for Federal standards and any alternatives that 


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1 would limit the scope of Federal standards or other2 wise preserve the prerogatives and authority of In3 dian tribes. 

4 TITLE III—INDIAN TRIBAL 

5 WAIVERS 

6 SEC. 301. INDIAN TRIBAL WAIVERS. 

7 (a) APPLICATION PROCESSES.—Agencies shall review 

8 the processes under which Indian tribes apply for waivers 

9 of statutory and regulatory requirements and take appro10 priate steps to streamline those processes. 

11 (b) GRANTING MAXIMUM TRIBAL LATITUDE.—Each 

12 agency shall, to the extent practicable and permitted by 

13 law, consider any application by an Indian tribe for a waiv14 er of statutory or regulatory requirements in connection 

15 with any program administered by the agency with a gen16 eral view toward increasing opportunities for utilizing 

17 flexible policy approaches at the Indian tribal level. Max18 imum tribal latitude shall be granted in cases in which 

19 the proposed waiver is consistent with the applicable Fed20 eral policy objectives and is otherwise appropriate. 

21 (c) DECISION TIMELINE.—Each agency shall, to the 

22 extent practicable and permitted by law, render a decision 

23 upon a complete application for a waiver within 120 days 

24 of receipt of such application by the agency, or as other25 wise provided by law or regulation. If the application for 


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1 waiver is not granted, the agency shall provide the appli2 cant with timely written notice of the decision and the rea3 sons therefor. 

4 (d) LIMITATION.—This section applies only to statu5 tory or regulatory requirements that are discretionary and 

6 subject to waiver by the agency. 

7 TITLE IV—JUDICIAL REVIEW 

8 SEC. 401. JUDICIAL REVIEW. 

9 An Indian tribe may seek judicial review of a deter10 mination of an agency under this Act in accordance with 

11 subchapter II of chapter 5 of title 5, United States Code, 

12 and chapter 7 of title 5, United States Code (commonly 

13 known as the ‘‘Administrative Procedure Act’’), if the In14 dian tribe has exhausted all other administrative remedies 

15 available to the Indian tribe. 

Æ 


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