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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5023 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 5023

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

                             April 14, 2010

 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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS; FINDINGS; DECLARATION OF 
              GOALS; DEFINITIONS.

    (a) Short Title.--This Act may be cited as the ``Requirements, 
Expectations, and Standard Procedures for Executive Consultation with 
Tribes Act'' or the ``RESPECT Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents; findings; declaration of goals; 
                            definitions.
                       TITLE I--SENSE OF CONGRESS

Sec. 101. Sense of Congress.
                    TITLE II--CONSULTATION PROCEDURE

Sec. 201. Requirement for consultation.
Sec. 202. Timing.
Sec. 203. Scoping stage consultation.
Sec. 204. Decision stage procedures.
Sec. 205. Documentation and reporting.
Sec. 206. Implementation.
Sec. 207. Sensitive tribal information.
                     TITLE III--TRIBAL SOVEREIGNTY

Sec. 301. Tribal sovereignty.
                    TITLE IV--INDIAN TRIBAL WAIVERS

Sec. 401. Indian tribal waivers.
                        TITLE V--JUDICIAL REVIEW

Sec. 501. Judicial review.
    (c) Findings.--Congress finds that--
            (1) the United States has a unique, legally affirmed 
        government-to-government relationship with Indian tribal 
        governments as set forth in the Constitution of the United 
        States, treaties, statutes, Executive orders, and court 
        decisions;
            (2) the United States recognizes the right of Indian tribes 
        to self-government and supports tribal sovereignty and self-
        determination;
            (3) the United States has enacted numerous statutes and 
        promulgated numerous regulations that establish and define a 
        trust relationship with Indian tribes;
            (4) the United States has a responsibility to consult with 
        Indian tribes on a government-to-government basis when 
        formulating policies and undertaking activities that will have 
        impacts on tribal lands and interests;
            (5) procedures for such consultation should be designed and 
        structured to give Indian tribes opportunities to provide 
        meaningful, informed input throughout the development and 
        decisionmaking processes;
            (6) building institutional knowledge and capacity for 
        effective consultation fosters greater efficiency and benefits 
        for future projects;
            (7) the consultation process should be institutionalized 
        according to best practices that are designed and administered 
        by the agency and that fulfill the legal requirements mandated 
        by this Act;
            (8) consulting with Indian tribes during the formulation of 
        long-term management plans reduces the likelihood of project 
        delays and increases the efficiency of project implementations; 
        and
            (9) effective consultation demands ongoing, respectful 
        communication between agencies and Indian tribes.
    (d) Declaration of Goals.--The goals of this Act are--
            (1) to establish and support a process of regular, 
        meaningful consultation and collaboration with Indian tribes in 
        the development of Federal policies and the initiation of 
        Federal activities that impact tribal lands and interests;
            (2) to strengthen the United States government-to-
        government relationships with Indian tribes;
            (3) to establish minimum standard procedures to ensure the 
        above goals are achieved; and
            (4) to recognize tribal regulatory authority and 
        jurisdiction generally, and specifically through the waiver 
        process.
    (e) Definitions.--For the purposes of this Act:
            (1) Indian tribe.--The term ``Indian tribe'' means an 
        Indian or Alaska Native tribe, band, nation, pueblo, village, 
        or community that the Secretary of the Interior acknowledges to 
        exist as an Indian tribe pursuant to the Federally Recognized 
        Indian Tribe List Act of 1994 (25 U.S.C. 479a), including all 
        tribes that have been added to the list since the Act became 
        law.
            (2) Agency.--The term ``agency'' means any authority of the 
        United States that is an ``agency'' under section 3502(1) of 
        title 44, United States Code.
            (3) Activity.--The term ``activity'' means a project, 
        program, policy or other action including, infrastructure 
        projects, regulations, program comments by Federal entities, 
        and agency-drafted proposed legislation, that is funded in 
        whole or in part under the direct or indirect jurisdiction of 
        an agency, including those carried out by or on behalf of an 
        agency; those carried out with Federal financial assistance; or 
        those requiring a Federal permit, license, or approval.
            (4) Sacred site.--The term ``sacred site'' means any 
        specific, discrete, narrowly delineated location on Federal 
        land that is identified by an Indian tribe--
                    (A) as sacred by virtue of its established 
                religious significance to, or ceremonial use by, an 
                Indian religion; or
                    (B) to be of established cultural significance.
            (5) Memorandum of agreement.--The term ``memorandum of 
        agreement'' means a document that records the terms and 
        conditions agreed upon by an agency and an Indian tribe through 
        the consultation process regarding an activity, including any 
        measures to be taken to resolve or mitigate adverse impacts on 
        the Indian tribe.
            (6) New discovery.--The term ``new discovery'' means any 
        unexpected development that occurs during the course of an 
        activity, such as the discovery of a new archeological site, 
        unanticipated impacts on organisms or ecosystems, or the 
        realization of unintended consequences of a new regulation, 
        that may have impacts on tribal lands and interests.
            (7) Standard process.--The term ``standard process'' means 
        a streamlined process for agency-Indian tribe interaction 
        agreed to by both parties through consultation and certified in 
        a memorandum of agreement that applies to certain specified 
        Activities or limited categories of Activities.

                       TITLE I--SENSE OF CONGRESS

SEC. 101. SENSE OF CONGRESS.

    It is the sense of Congress that consultation constitutes more than 
simply notifying an Indian tribe about a planned undertaking. 
Consultation entails a process of open, ongoing communication, 
interaction and coordination that may include written correspondence, 
meetings, telephone conferences, site visits, e-mails, on-line 
information sharing, consensual mechanisms for developing regulations 
including negotiated rulemaking, and more. Consultation means the 
process of seeking, discussing, and considering the views of other 
participants, and, where feasible, seeking agreement with them 
regarding proposed activities and other matters. Mutual understanding 
and respect is the basis of effective, meaningful consultation. 
Effective, meaningful consultation requires a two-way exchange of 
information, a willingness to listen, an attempt to understand and 
genuinely consider each other's opinions, beliefs, and desired 
outcomes, and a seeking of agreement on how to proceed concerning the 
issues at hand. Effective, meaningful consultation does not guarantee 
such agreement, but at a minimum contributes to the building of 
relationships based on mutual respect and understanding. Consultation 
can be considered effective and meaningful when each party demonstrates 
a genuine commitment to learn, acknowledge and respect the positions, 
perspectives, and concerns of the other parties. Ultimately, effective, 
meaningful consultation means collaboration.

                    TITLE II--CONSULTATION PROCEDURE

SEC. 201. REQUIREMENT FOR CONSULTATION.

    (a) Scope.--Agencies shall have an accountable process to ensure 
meaningful and timely input by Indian tribes and tribal officials prior 
to undertaking any activity that may have substantial direct impacts on 
the lands or interests of one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. Consultation with Indian tribes shall 
occur for all Activities that would affect any part of any Federal land 
that shares a border with Indian country as defined in section 1151 of 
title 18, United States Code, but is not limited to activities on such 
lands.
    (b) Multi-agency Activities.--In the case of agency-drafted 
proposed legislation, the drafting agency, and any other agency that 
will be implementing the legislation, shall each be considered involved 
in the activity. If more than one agency is involved in an activity, 
some or all of the agencies may designate a lead agency, which shall 
fulfill their collective consultation responsibilities. Those agencies 
that do not designate a lead agency shall remain individually 
responsible for their consultation responsibilities under this Act.
    (c) Limitation.--Nothing in this Act shall exempt an agency from 
additional consultation required under any other law or from taking any 
other consultative actions as required by any other law or agency 
prerogative in addition to those required by this Act. Nor does it 
preclude an agency from additional consultation that complies with 
agency regulations for consultation, advances agency consultation 
practices, or supports agency efforts to build or strengthen 
government-to-government relationships with Indian tribes. The 
requirements of this Act supplement, but do not replace, other 
consultation requirements such as the Federal Energy Regulatory 
Commission regulations for license applicants.

SEC. 202. TIMING.

    Consultation as described in sections 203 and 204 shall be 
completed prior to the expenditure of any Federal funds on the activity 
or prior to the issuance of any license other than for funding 
nondestructive project planning activities provided that such actions 
do not restrict the subsequent consideration of alternatives to avoid, 
minimize, or mitigate the activity's adverse tribal impacts.

SEC. 203. SCOPING STAGE CONSULTATION.

    (a) Planning Document.--As early as possible in the planning stage 
of an activity, the agency shall compile a draft of the scope of the 
project, including any geographic areas important to Indian tribes that 
might be affected and any other anticipated tribal impacts. The agency 
shall make a good faith effort to include areas that might reasonably 
be expected to contain sites important to Indian tribes whether or not 
such sites are explicitly known to the agency.
    (b) Tribal Consultation Partners.--The agency shall consult with 
all Indian tribes that may be impacted by an activity. When 
appropriate, the agency shall consult with regional and national tribal 
organizations such as the National Congress of American Indians, the 
National Tribal Environmental Council, the Native American Fish and 
Wildlife Society, the United South and Eastern Tribes, the National 
Association of Tribal Historic Preservation Officers, the Michigan 
Anishinaabek Cultural Preservation and Repatriation Alliance, and the 
Affiliated Tribes of Northwest Indians, to determine which Indian 
tribes may be affected by the activity. Under no circumstance shall the 
agency treat consultation with intertribal organizations as a 
substitute for consultation with each affected Indian tribe, unless the 
Indian tribes comprising such an organization agree that consultation 
should proceed through the intertribal organization. The agency shall 
remain responsible for its consultation responsibilities under this Act 
to any affected Indian tribes not participating in such an agreement. 
Other resources for identifying Indian tribes that need to be consulted 
include officials, such as cultural resource specialists, from other 
agencies who have consulted with Indian tribes in the region in the 
past, ethnographies, local histories, local university experts, oral 
accounts, the National Park Service's Native American Consultation 
Database, MAPS: GIS Windows on Native Lands, Current Places, and 
History, and the Library of Congress Indian Land Cessions document 
website.
    (c) Initial Contact With Consultation Partners.--The agency--
            (1) shall send, via United States mail and e-mail, if 
        possible, a copy of the planning document and a letter 
        requesting consultation meetings to the relevant tribal 
        government officials including the tribal leader and all 
        members of any elected tribal governing body, such as a tribal 
        council, relevant tribal governmental agencies, including the 
        Tribal Historic Preservation Officer or cultural resource 
        manager, and relevant non-tribal stakeholders, such as the 
        State Historic Preservation Officer and local governments that 
        have jurisdiction on any affected land via agreement with the 
        agency;
            (2) at the request of the Indian tribe, shall send, via 
        United States mail and e-mail, if possible, a copy of the 
        planning document and a letter requesting consultation meetings 
        to nongovernmental tribal stakeholders, such as elders councils 
        and religious leaders;
            (3) shall not request consultation with nongovernmental 
        tribal stakeholders without the written consent of the Indian 
        tribe; and
            (4) shall follow-up with phone calls to confirm receipt of 
        the documents by all recipients.
    (d) Consultation Meeting Arrangements.--The agency shall negotiate 
with stakeholder representatives to determine the time, place, agenda, 
travel funds, facilitator, format, and goals of a consultation meeting. 
The agency shall make a good faith effort to engage in consultation, 
keeping thorough documentation of all steps taken to contact and engage 
the Indian tribe in consultation. If, after a good faith effort, the 
agency fails to engage the Indian tribal government, it may terminate 
its scoping stage consultation efforts by providing all consultation 
partners with a written notification and explanation for its decision, 
signed by the head of the agency, and proceed to the decision stage 
procedures described in section 204.
    (e) Consultation Meeting Format.--A consultation meeting shall 
begin with confirmation of the format, facilitator, and agenda, with 
adequate time scheduled for introductions and for interaction 
throughout the meeting among participants. Whenever possible, tribal 
stakeholders shall be brought into the ongoing planning process 
directly by forming ad hoc workgroups including tribal leaders or their 
designees and, if appropriate, initiating a process for consensual 
development of regulations, such as negotiated rulemaking. The meeting 
shall conclude with planning for the next meeting, if necessary.
    (f) Termination of Scoping Stage Consultation With a Memorandum of 
Agreement.--
            (1) Termination.--Scoping stage consultation shall 
        terminate upon the execution of a memorandum of agreement 
        signed by the head of the agency and the Indian tribal 
        government.
            (2) Signatories.--The Indian tribal government and the 
        agency may jointly invite additional parties to be signatories 
        of the memorandum of agreement. The signatories have sole 
        authority to execute, amend, or terminate the memorandum of 
        agreement. If any signatory determines that the terms of the 
        memorandum of agreement cannot be or are not being carried out, 
        the signatories shall consult to seek amendment of the 
        memorandum of agreement. If the memorandum of agreement is not 
        amended, any signatory may terminate the agreement, with the 
        option to return to scoping stage consultation. The agency 
        shall provide all non-signatory consulting partners with the 
        opportunity to submit a written statement, explanation, or 
        comment on the consultation proceedings that shall become part 
        of the agency's official consultation record.
            (3) MOA.--The memorandum of agreement--
                    (A) may address multiple activities if the 
                activities are similar and repetitive or are multi-
                State or regional in scope, or where routine management 
                activities are undertaken at Federal installations, 
                facilities, or other land management units;
                    (B) may establish standard processes for certain 
                categories of activities determined through 
                consultation and defined in the memorandum of 
                agreement;
                    (C) shall include a provision for monitoring and 
                reporting on its implementation;
                    (D) shall include provisions for termination or 
                reconsideration if the Activity has not been completed 
                within a specified time; and
                    (E) shall include provisions to address new 
                discoveries, which may include halting the activity and 
                returning to scoping stage consultation.
    (g) Termination of Scoping Stage Consultation Without a Memorandum 
of Agreement.--The agency shall make a good faith effort through 
sustained interaction and collaboration to reach a consensus resulting 
in a memorandum of agreement. If, after a good faith effort, the agency 
determines that further consultation will not be productive, it may 
terminate consultation by providing all consultation partners with a 
written notification and explanation for its decision, signed by the 
head of the agency, and proceed to the decision stage procedures 
described in section 204. The Indian tribal government may at any point 
decide to terminate consultation. In such case, the agency shall 
provide the Indian tribal government with the opportunity to submit a 
written statement, explanation, or comment on the consultation 
proceedings that will become part of the agency's official consultation 
record. Any nongovernmental consultation partners may decide to 
withdraw from consultation at any time. In such case, the agency shall 
provide the withdrawing nongovernmental consultation partner with the 
opportunity to submit a written statement, explanation, or comment on 
the consultation proceedings that will become part of the agency's 
official consultation record.

SEC. 204. DECISION STAGE PROCEDURES.

    (a) Proposal Document.--The agency shall compile a document 
consisting of the plan for the activity, its anticipated tribal 
impacts, any memorandum of agreement, and any written statements made 
by consulting partners during the scoping stage as described in section 
203. The agency shall include sufficient supporting documentation to 
the extent permitted by law and within available funds to enable any 
reviewing parties to understand its basis. The agency may use 
documentation prepared to comply with other laws to fulfill the 
requirements of this provision to the extent that such documentation is 
sufficiently pertinent to and focused on the relevant issues as to 
allow reasonable ease of review. The agency shall mail and e-mail, if 
possible, a copy of the Proposal Document to all consultation partners, 
including any who withdrew from the process. At a minimum, the document 
shall go to the tribal leader and all members of any elected tribal 
governing body. The agency shall follow up with phone calls to confirm 
receipt of the document. After these steps have been completed, the 
Proposal Document shall be published in the Federal Register, subject 
to the provisions of section 207.
    (b) Public Comment Period.--The agency shall provide a period of 
not less than 90 days after publication in the Federal Register for 
comments on the Proposal Document. A 30-day extension shall be granted 
upon request by any member of the Indian tribe.
    (c) Preliminary Decision.--After expiration of the comment period, 
the agency shall prepare a preliminary decision letter, signed by the 
head of the agency. The letter shall state the decision to proceed or 
not proceed with the activity, the decision's rationale, any changes in 
the proposal made in response to comments, and any points where the 
decision conflicts with the expressed requests of any of the 
consultation partners. It shall particularly address why the decision 
was made to disregard any such requests. The agency shall mail and e-
mail, if possible, a copy of the letter to all consultation partners, 
including any who withdrew from the process. At a minimum, the letter 
shall go to the tribal leader and all members of the tribal governing 
body. The agency shall follow up with phone calls to confirm receipt of 
the letter.
    (d) Final Decision.--The agency shall provide a 60-day period 
following the issuance of the preliminary decision letter for response 
by the consultation partners. Thereafter, the agency shall notify in 
writing, signed by the head of the agency, the consultation partners, 
including any who withdrew from the process, of the agency's final 
decision.

SEC. 205. DOCUMENTATION AND REPORTING.

    (a) Official Consultation Record.--The agency shall keep an 
official consultation record that allows accurate tracking of the 
process so that agencies and consulting parties can correct any errors 
or omissions, and provides an official record of the process that can 
be referred to in any litigation that may arise. The agency shall 
document all efforts to initiate consultation as well as documenting 
the process once it has begun. Such documentation, including, but not 
limited to, correspondence, telephone logs, and e-mails, shall be 
included in the agency's official consultation record. The agency shall 
also keep notes so that the consultation record documents the content 
of consultation meetings, site visits, and phone calls in addition to 
information about dates and who participated.
    (b) Payment for Tribal Documentation Work.--If the agency asks an 
Indian tribe for specific information or documentation regarding the 
location, nature, and condition of individual sites, to conduct a 
survey, or in any way fulfill the duties of the agency in a role 
similar to that of a consultant or contractor, then the agency must pay 
for such services, if so requested by the Indian tribe, as it would for 
any private consultant or contractor.
    (c) Report to Congress.--Each agency shall on a biennial basis 
submit to Congress a report on its consultation activities.

SEC. 206. IMPLEMENTATION.

    Not later than 30 days after the date of the enactment of this Act, 
the head of each agency shall designate an official with principal 
responsibility for the agency's review of existing consultation and 
coordination policies and procedures, and implementation of this Act. 
Not later than 60 days after the effective date of this order, the 
designated official shall submit to the Office of Management and Budget 
a description of the agency's revised consultation process in 
conformity with this Act.

SEC. 207. SENSITIVE TRIBAL INFORMATION.

    Notwithstanding any provision of the Administrative Procedures Act, 
consultation meetings shall be closed to the public at the request of 
the Indian tribal government. Notwithstanding any provision of the 
Freedom of Information Act, all information designated by the Indian 
tribe as sensitive, such as the location of Sacred Sites or other 
details of cultural or religious practices, shall be deleted from any 
public publication made as part of the consultation process or in the 
process of carrying out the activity. Once information has been 
designated as sensitive, the agency will determine in consultation with 
the Indian tribe who may have access to the information for the 
purposes of carrying out the activity.

                     TITLE III--TRIBAL SOVEREIGNTY

SEC. 301. TRIBAL SOVEREIGNTY.

    (a) In General.--Agencies shall recognize and 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.
    (b) Maximum Tribal Administrative Discretion.--With respect to 
Federal statutes and regulations administered by Indian tribal 
governments, the Federal Government shall grant Indian tribal 
governments the maximum administrative discretion possible.
    (c) Alternatives to Federal Regulation.--When undertaking to 
formulate and implement policies that have tribal implications, 
agencies shall--
            (1) encourage Indian tribes to develop their own policies 
        to achieve program objectives;
            (2) where possible, defer to Indian tribes to establish 
        standards; and
            (3) 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 of Indian tribes.

                    TITLE IV--INDIAN TRIBAL WAIVERS

SEC. 401. INDIAN TRIBAL WAIVERS.

    (a) Application Processes.--Agencies shall review the processes 
under which Indian tribes apply for waivers of statutory and regulatory 
requirements and take appropriate steps to streamline those processes.
    (b) Granting Maximum Tribal Latitude.--Each agency shall, to the 
extent practicable and permitted by law, consider any application by an 
Indian tribe for a waiver of statutory or regulatory requirements in 
connection with any program administered by the agency with a general 
view toward increasing opportunities for utilizing flexible policy 
approaches at the Indian tribal level. Maximum tribal latitude shall be 
granted in cases in which the proposed waiver is consistent with the 
applicable Federal policy objectives and is otherwise appropriate.
    (c) Decision Time Line.--Each agency shall, to the extent 
practicable and permitted by law, render a decision upon a complete 
application for a waiver within 120 days of receipt of such application 
by the agency, or as otherwise provided by law or regulation. If the 
application for waiver is not granted, the agency shall provide the 
applicant with timely written notice of the decision and the reasons 
therefor.
    (d) Limitation.--This section applies only to statutory or 
regulatory requirements that are discretionary and subject to waiver by 
the agency.

                        TITLE V--JUDICIAL REVIEW

SEC. 501. JUDICIAL REVIEW.

    An Indian tribe alleging that the requirements of this Act have not 
been met may bring a civil action in a United States district court. 
Immediately upon, or anytime after, the filing of such a suit, the 
court may restrain the agency from any further action in furtherance of 
the activity until such time as the court determines that the 
requirements of this Act have been met. The agency shall be liable for 
any damages that the court may award to compensate the Indian tribe for 
adverse impacts resulting from an activity conducted without 
consultation fulfilling the provisions of this Act.
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