open, ongoing communication, interaction and coordina-
tion that may include written correspondence, meetings, 
telephone conferences, site visits, e-mails, on-line informa-
tion sharing, consensual mechanisms for developing regu-
lations including negotiated rulemaking, and more. Con-
sultation 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 ex-
change of information, a willingness to listen, an attempt 
to understand and genuinely consider each other’s opin-
ions, beliefs, and desired outcomes, and a seeking of agree-
ment 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 un-
derstanding. Consultation can be considered effective and 
meaningful when each party demonstrates a genuine com-
mitment to learn, acknowledge and respect the positions, 
perspectives, and concerns of the other parties. Ultimately, 
effective, meaningful consultation means collaboration. 
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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 legis-
lation, 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 
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remain individually responsible for their consultation re-
sponsibilities 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 addi-
tion to those required by this Act. Nor does it preclude 
an agency from additional consultation that complies with 
agency regulations for consultation, advances agency con-
sultation 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 ac-
tivities provided that such actions do not restrict the sub-
sequent consideration of alternatives to avoid, minimize, 
or mitigate the activity’s adverse tribal impacts. 
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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 geo-
graphic 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 Preser-
vation Officers, the Michigan Anishinaabek Cultural Pres-
ervation and Repatriation Alliance, and the Affiliated 
Tribes of Northwest Indians, to determine which Indian 
tribes may be affected by the activity. Under no cir-
cumstance shall the agency treat consultation with inter-
tribal organizations as a substitute for consultation with 
each affected Indian tribe, unless the Indian tribes com-
prising such an organization agree that consultation 
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should proceed through the intertribal organization. The 
agency shall remain responsible for its consultation re-
sponsibilities 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 in-
clude 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 Serv-
ice’s Native American Consultation Database, MAPS: GIS 
Windows on Native Lands, Current Places, and History, 
and the Library of Congress Indian Land Cessions docu-
ment Web site. 
(c) INITIAL CONTACT WITH CONSULTATION PART-
NERS.—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 
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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 re-
questing consultation meetings to nongovernmental 
tribal stakeholders, such as elders councils and reli-
gious leaders; 
(3) shall not request consultation with non-
governmental 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 representa-
tives 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 consulta-
tion. If, after a good faith effort, the agency fails to en-
gage the Indian tribal government, it may terminate its 
scoping stage consultation efforts by providing all con-
sultation partners with a written notification and expla-
nation for its decision, signed by the head of the agency, 
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and proceed to the decision stage procedures described in 
section 204. 
(e) CONSULTATION MEETING FORMAT.—A consulta-
tion 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 stake-
holders 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 CONSULTA-
TION WITH A MEMORANDUM OF AGREEMENT.— 
(1) TERMINATION.—Scoping stage consultation 
shall terminate upon the execution of a memo-
randum of agreement signed by the head of the 
agency and the Indian tribal government. 
(2) SIGNATORIES.—The Indian tribal govern-
ment 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 
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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 agree-
ment, with the option to return to scoping stage con-
sultation. 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 Fed-
eral installations, facilities, or other land man-
agement units; 
(B) may establish standard processes for 
certain categories of activities determined 
through consultation and defined in the memo-
randum of agreement; 
(C) shall include a provision for monitoring 
and reporting on its implementation; 
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(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 activ-
ity and returning to scoping stage consultation. 
(g) TERMINATION OF SCOPING STAGE CONSULTA-
TION WITHOUT A MEMORANDUM OF AGREEMENT.—The 
agency shall make a good faith effort through sustained 
interaction and collaboration to reach a consensus result-
ing 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 pro-
viding 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 de-
scribed 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 govern-
ment 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 nongovern-
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mental consultation partner with the opportunity to sub-
mit 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 com-
pile a document consisting of the plan for the activity, its 
anticipated tribal impacts, any memorandum of agree-
ment, and any written statements made by consulting 
partners during the scoping stage as described in section 
203. The agency shall include sufficient supporting docu-
mentation to the extent permitted by law and within avail-
able 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 suffi-
ciently 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 pub-
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lished 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 re-
quest 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 let-
ter 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 de-
cision letter for response by the consultation partners. 
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Thereafter, the agency shall notify in writing, signed by 
the head of the agency, the consultation partners, includ-
ing 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 accu-
rate tracking of the process so that agencies and con-
sulting parties can correct any errors or omissions, and 
provides an official record of the process that can be re-
ferred to in any litigation that may arise. The agency shall 
document all efforts to initiate consultation as well as doc-
umenting the process once it has begun. Such documenta-
tion, including, but not limited to, correspondence, tele-
phone 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 con-
tent of consultation meetings, site visits, and phone calls 
in addition to information about dates and who partici-
pated. 
(b) 
PAYMENT
FOR
TRIBAL
DOCUMENTATION 
WORK.—If the agency asks an Indian tribe for specific 
information or documentation regarding the location, na-
ture, and condition of individual sites, to conduct a survey, 
or in any way fulfill the duties of the agency in a role 
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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 con-
tractor. 
(c) REPORT TO CONGRESS.—Each agency shall on a 
biennial basis submit to Congress a report on its consulta-
tion activities. 
SEC. 206. IMPLEMENTATION. 
Not later than 30 days after the date of the enact-
ment of this Act, the head of each agency shall designate 
an official with principal responsibility for the agency’s re-
view 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 des-
ignated official shall submit to the Office of Management 
and Budget a description of the agency’s revised consulta-
tion 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 Infor-
mation 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 
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from any public publication made as part of the consulta-
tion 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 re-
spect Indian tribal self-government and sovereignty, honor 
tribal treaty and other rights, and strive to meet the re-
sponsibilities that arise from the unique legal relationship 
between the Federal Government and Indian tribal gov-
ernments. 
(b) MAXIMUM TRIBAL ADMINISTRATIVE DISCRE-
TION.—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; 
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(2) where possible, defer to Indian tribes to es-
tablish 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 other-
wise preserve the prerogatives and authority of In-
dian 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 appro-
priate 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 waiv-
er of statutory or regulatory requirements in connection 
with any program administered by the agency with a gen-
eral view toward increasing opportunities for utilizing 
flexible policy approaches at the Indian tribal level. Max-
imum tribal latitude shall be granted in cases in which 
the proposed waiver is consistent with the applicable Fed-
eral policy objectives and is otherwise appropriate. 
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