BUREAU OF RECLAMA nON

BRIEFING FOR: Tribal Funding under the Glen Canyon Dam Adaptive Management

Program (a Federal Advisory Committee) DATE: Oct. 20, 2003

ISSUE AND PURPOSE: Department of the Interior agencies (Bureau of Indian Affairs,

Bureau of Reclamation, National Park Service, u.S. Fish and Wildlife Service, U.S.

Geological Survey) want to continue to assist tribes financially to participate in and

consult on issues discussed at meetings of a federal advisory committee, the Glen Canyon

Dam Adaptive Management Work Group. Legal authorities must be specified to enable

the agencies to enter into an interagency agreemento combine appropriated dollars and

then to have one agency transfer the dollars to the tribes through cooperative agreements.

If government-to-govemment consultation is the legal authority for the transfer of federal

appropriated dollars to the tribes, does this comply with Departmental policies? Most

Interior agencies do not pay consultation fees for paid tribal employees. Most agencies

only pay consultation fees if the services and expertise of an unpaid tribal representative

are required by the agency for a specific federal action or consultation purpose. All tribal

representatives in this federal advisory committee are full-time tribal employees paid by

the cooperative agreements.

Therefore, the two main issues are what authorities might be used to enter into

interagency and tribal agreements to enable paid tribal representatives to participate in

and consult on a federal advisory committee, 3;fid whether such financial assistance

complies with Department policy on consultation with Indian tribal governments.

CURRENT STATUS: The Secretary of the Interior has appointed the agencies listed

above, as well as the Hopi Tribe, Hualapai Tribe, Kaibab Band of Paiute Indians, Navajo

Nation, Pueblo of Zuni, and Paiute Indian Tribe of Utah as members of a federal advisory

committee, the Glen Canyon Darn Adaptive Management Work Group. The tribes

participate in the committee because of their cultural interests in the Colorado River

below Glen Canyon Darn. Previous assistance agreements funding a full-time

representative from each of the five tribes that are members of the federal advisory

committee have expired. Without new funding agreements in fiscal year 2004, the tribes

have informed the agencies that they will not participate in the advisory committee. The

federal agencies believe this would be a significant loss and would be contrary to the

Secretary of the Interior's intent in appointing the tribes as committee members, along

with the federal agencies, states, and other stakeholders in Colorado River issues.

The agencies and the tribes recognize that it is not a full-time job preparing for and

participating in the two annual meetings of the federal advisory committee (and related

work groups); however, the tribes lack the staff to participate fully in the federal advisory

committee without federal assistance. The position of the agencies is that absence of the

tribes would be detrimental to the committee in making reasoned recommendations to the

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Secretary of the Interior. Thereforet in compliance with the Federal Grant and

Cooperative Agreement Actt the agencies want to identify a specific legal authority under

which they may fund the tribes for ongoing participation in and consultation on the Glen

Canyon Dam Adaptive Management Program.

Reclamation's contract officers have questioned whether government-to-government

consultation or participation in a federal advisory committee provides the legal

framework for providing assistance to the tribes. In addition, there is a question whether

funding full-time tribal representatives to a federal advisory committee violates

Departmental policies on not paying consulting fees to paid tribal personnel.

BACKGROUND: In 1996, the Secretary of the Interior signed a Record of Decision on

Glen Canyon Dam operations which created a federal advisory committee, the Glen

Canyon Dam Adaptive Management Work Group. The Secretary of the Interior appoints

tribal representatives to the committee because of their cultural interests; Indian trust

assets are not present within the area of primary concern to the committee. Current tribal

representatives are the Pueblo of Zuni, Kaibab Band of Paiute Indians, Paiute Indian

Tribe of Utah, San Juan Southern Paiute, Hopi Tribe, Navajo Nation, and Hualapai Tribe.

Federal agencies on the advisory committee include Department of the mterior agencies

listed above, along with Western Area Power Administration. From 1996 through 2000,

Reclamation and Western Area Power Administration funded tribal participation using

power revenues. Revenues were transferred to the tribes using cooperative agreements

that cited the National Historic Preservation Act of 1966 and the Grand Canyon

Protection Act of 1992 as legal authorities for the transfer of funds. These laws were

listed as the authorities to enter into the agreements and provide assistance to the tribes

because they mandate consultation between federal agencies and tribal governments.

The tribes used the funds to hire staff who participated in the Glen Canyon Dam

Adaptive Management Program. While the work preparing for and traveling to meetings,

presenting tribal viewpoints at meetings, and infonning tribal councils of the results of

the meetings is not a full time job, tribal representatives infonned the agencies that they

could not participate on an equal basis with the agency representatives unless they

received funding to hire one professional-level, full-time equivalent position ($80,000-

95,000 per tribe per year).

On June 19,2001, Acting Assistant Secretary for Policy, Management and Budget, Mr.

Bob Lamb, issued a memorandum directing the Interior agencies to fund tribal

participation in the Glen Canyon Dam Adaptive Management Program through fiscal

year 2003. His directive was based on the federal trust responsibility to the tribes and the

Grand Canyon Protection Act of 1992. In fiscal year 2004, the authority for financial

assistance provided by Mr. Lamb's memorandum has expired.

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POSITIONS OF INTERESTED PARTIES: The agencies view the dialogs at the

meetings of the Glen Canyon Dam Adaptive Management Program as government-togovernment consultation, so the agencies would like to continue to assist the tribes to

ensure government-to-governrnent consultation mandates are met. The agencies believe

the meetings provide the tribes with a voice and a vote in recommendations made to the

Secretary of the Interior with respect to federal actions proposed for the Colorado River

below Glen Canyon Dam. Thus, the agencies' position is that both the government and

the tribes are beneficiaries of any financial assistance provided to the tribes. The agencies

want to comply with Interior policies on payment of consultation fees to tribal

governments. The agencies also want to ensure they are in compliance with the Federal

Grant and Cooperative Agreement Act which requires a specific legislative authority

under which they may enter into interagency and tribal agreements.

The position of the tribes is that federal advisory committee meetings do not suffice for

government-to-government consultation on any specific federal action, but they would

like to continue participating in the Glen Canyon Dam Adaptive Management Program

on an equal basis with the federal agency representatives. The tribes believe that the

Interior agencies should provide financial assistance to them based on the trust

responsibility, not based on government-to-government consultation. The tribes define

the minimal level of adequate assistance as one full-time equivalent position per tribe;

with a minimum of five participating tribes at $95,000 per tribe, the cost would be

$475,000 per year. If all eight tribes with cultural interests in the geographic area covered

by the program became active participants (i.e., adding San Juan Southern Paiute, Paiute

Indian Tribe of Utah, and Havasupai Tribe), the annual cost would be $760,000.

RECOMMENDATION: The Interior agencies believe it appropriate to continue

obtaining appropriated dollars (at the Departmentalevel or from the Washington office

of each agency) to enable the tribes to participate in the Glen Canyon Dam Adaptive

Management Program, as long as the tribes and the Department agree that participation in

meetings may be defined as govemment-to-government consultation. If the Department

agrees, then action items would be identifying the specific legal authorities under which

the agencies could enter into an interagency agreement to pool appropriated dollars, and

having one agency enter into new cooperative agreements with the five or more tribes

($475,000 to $760,000 annually, depending on how many tribes the Secretary appoints to

the committee).

Another strategy might be having the Department provide funds directly to the tribes to

ensure their continued participation. An issue with either strategy is whether providing

federal appropriated dollars for paid tribal employees to participate in and consult at

advisory committee meetings meets Departmental policy on consultation.

PREPARED BY: Nancy Coulam, Upper Colorado Region of Reclamation, 801-524-

3684 and Nonnan Henderson, National Park Service, 801-539-4251

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