This workshop grew out of conversations with individuals across the Federal government who expressed a great deal of interest in how consultation is being conducted, and a desire to get together and discuss consultation with representatives of other federal agencies. The issues on which the Federal government needs to consult with tribes are many and varied. In addition, consultation is a way of decreasing or preventing conflict between the Federal government and Tribes over Federal plans and actions that affect Tribes.
There are many resources to which the Federal government can look for assistance in consultation. A prime resource is Tribes themselves. Another resource is Federal employees who work in consultation, regardless of the agency for which they work. A third resource is Native people who are Federal employees. This workshop provides the opportunity for all of these resources to come together over two days, to share experiences, challenges, and successes in government-to-government consultation.
On the morning of the first day, speakers James Van Ness, with the Department of Defense, and Karen Atkinson, with Tribal Strategies, Inc., provided an overview of the legal background of government-to-government consultation and the reasons why Tribes are "treated differently."
Why do we consult?
Consultation requirements, such as those embodied in executive orders, derive from the United States Constitution and the federal trust doctrine. Mr. Van Ness reflected that part of the challenge before agencies in operationalizing consultation requirements is the absence of hard and fast guidelines in the federal trust doctrine. To provide some insights, Mr. Van Ness presented the emergence of the federal trust doctrine through a historical lens. Starting with Cherokee v Georgia in 1831 and Worcester v Georgia in 1832, the United States Supreme Court recognized tribes as domestic dependent nations (Cherokee v Georgia) with separate and distinct political communities retaining everything not expressly relinquished in treaties (Worcester v Georgia). The Court also recognized the federal responsibility to protect tribes, their lands, and their rights. Today, the interpretation of the federal trust responsibility falls along a continuum. A narrow interpretation is that it is the duty of agencies in the context of implementing and being compliant with federal laws and relevant executive orders. In contrast, a broader interpretation of the federal trust doctrine includes a moral and ethical responsibility to consult and work with tribes. Mr. Van Ness noted that, although he advocated for a broader perspective, it was not always accepted, even by his own agency.
With the federal trust doctrine as the basis for consultation, Mr. Van Ness explored when government-to-government consultation occurs in land-based federal actions. For example, consultation must always take place with federal actions on reservation lands, so too with matters off-reservation that may impact reserved rights of tribes. It may be more difficult to assess when consultation is needed with actions impacting ceded lands, and Mr. Van Ness encouraged workshop attendees to look to the relevant tribal treaties in these situations. As a general rule, treaties are construed as the tribes would have understood them at the time they were written. Treaties are living documents, highly relevant to the individual tribe and thus it is important for federal agencies to be familiar with the treaties of the tribes with which they are working. Ambiguities should be resolved in favor of the tribes because of the disproportionate bargaining power between the tribes and the United States at the time the treaties were written. As an example, Mr. Van Ness asked if a treaty was silent regarding hunting and fishing rights on ceded lands, do we conclude that the tribes gave up those rights or that the tribes reserved these rights? If we construe the treaties in favor of the tribes, the tribes retained any rights that were not expressly ceded. If the tribes have retained those rights, then the government should consult with the tribes before taking action. Finally it is important to keep in mind that the traditional use areas and the historical land affiliations of tribes are larger than the areas they actually ceded or that they now occupy. Does the government have a duty to consult in regard to traditional use areas?
Ms. Atkinson provided an overview of what consultation can look like. She described it as an active and affirmative process. The goal of consultation is to give tribes an opportunity to participate productively in agency planning and decision making by involving the tribes in the identification of issues and consideration of management options acceptable to them. Consultation requires ongoing communication and the formation of reciprocal relationships. It takes more personal contact than just sending a notification letter. Consultation is a formal process mutually agreed upon with the tribe and consistent with both substantive and procedural laws and policies including, for example, the National Historic Preservation Act and the Freedom of Information Act.
Ms. Atkinson provided a number of concrete steps to initiate and develop a meaningful consultation process including who to contact, the timing of the initial contact, being clear about what is requested of the tribe, the level of effort required by the tribe and the potential level of impact of the federal action. Often the most useful part of consultation is a policy or a Memorandum of Agreement (MOA) between an agency and a tribe for how that consultation will occur. An MOA can represent a shared commitment to follow agreed upon procedures. The document can establish a formal government-to-government relationship by articulating communication protocols, notification, the decision makers and points of contact, a shared timeline, information on how data will be shared, how sensitive and/or confidential information will be handled, and dispute resolution mechanisms. MOA's also acknowledge respect for tribal sovereignty and demonstrate that the agency understands who it is dealing with.
Consultation can be challenging to both the federal agency and the tribe. Representatives of three tribes, Mr. Oren Lyons of the Onondaga Nation, Mr. Ken Carleton, the tribal historic preservation officer of the Mississippi Choctaw, and Mr. David Nelson, the director of the environmental and natural resources department at Cheyenne River Sioux, shared their insights on consultation based on their experiences.
Mr. Lyons underscored the importance of history, the interconnectedness of tribes and their uniqueness, the risks of building relationships, and the need for education. He also reminded the audience that the decisions and actions of any one tribe may have far reaching impacts on all tribes. Thus he cautioned that each tribe must be careful in their decision of interacting, cooperating, or challenging the federal government.
Mr. Carleton emphasized that agencies need to demonstrate greater respect for tribal leaders, a deeper cultural awareness, and more mindfulness of tribes' limited staffs and resources. Bear in mind that one tribe may be asked to respond to concurrent requests from multiple agencies. Mr. Carleton and others reflected that as governments change, so do the people, so do the employees and this holds true in any government (federal or tribal). The important point is to take time to establish relationships in order to learn who your counterparts are in the tribal programs and how to get information.
Mr. Nelson observed that tribes do not have a governmental structure like states that have constant funding. Tribal environmental programs, for instance, operate largely from federal grants and tribes are forced to compete against each other for one or two year grants. This uncertain funding makes it difficult for a tribe to expand their internal capacity and become self-sufficient. Mr. Nelson also suggested that agencies be clear about how information a tribe provides in a consultation will be used so that the tribe can assess the benefit of their time and involvement in the process.
Presenters on the second day of the workshop provided a number of examples of their agencies efforts in improving consultation.
Mr. Paul Lumley, of the Department of Defense, succinctly captured the character of the themes that emerge in consultation:
- Denial or ignorance: I don't have to do this / I don't know what to do. The second comment is legitimate.
- Blame the tribes: There are too many / I couldn't get a consensus / I couldn't get a response.
- I'm going through the motions: I can document consultation, but I will not take tribal opinions into consideration.
- Full and effective experience: A decision has not yet been made, but we are going to at least ask your opinion, even if we agree to disagree, we will know why.
Mr. Lumley noted that the Department of Defense (DoD) takes its policies regarding government-to-government consultation seriously. Although DoD has a Native program, this program does not have a lot of exposure in Indian country. One of the activities of the program is a training on government to government consultation, usually there are two events, one in Alaska and one in California, that are open to all federal employees. With respect to consultation, some agencies actually ask tribes, "How are we doing?" This is a good exercise for all agencies -- it is oriented toward successes and bridging gaps.
Mr. Horst Greczmiel shared that the Council on Environmental Quality (CEQ) is working to harness the wide diversity of knowledge and expertise in Indian country and across the government and to facilitate cross agency learning. CEQ formed a work group on improving NEPA processes through enhanced tribal capacity. Providing information and training is one thing this group is focusing on.
Ms. Valerie Houser told the group that the Advisory Council for Historic Preservation (ACHP) has developed a set of initiatives, some of which have already been put in place, such as establishing a Native American advisory group. The group includes tribal leaders and demonstrates tribal interest in historic preservation. In addition ACHP works with a representative from each Bureau of Indian Affairs region. One of ACHP's missions is to improve consultation under the section 106 process. To that end ACHP is working to identify best practices on consultation under the section 106 process. This report should be finished in October or November, 2004.
The ACHP website has additional information including good examples of consultation provided by tribes. ACHP is also offering training with the Department of Transportation on consultation with tribes. This training is in partnership with tribes because ACHP does not do training on tribal issues without tribal input and participation. So far about 100 tribes have received training in the section 106 process. Ms. Houser stated that ACHP recently issued a trust statement (http://www.achp.gov/policystatement-tribes.html) to address the question of how it sees its trust responsibility. The statement is the legal analysis of ACHP's trust responsibility. .
Mr. Geoffrey Blackwell shared that the background of interactions between tribes and the Federal Communications Commission (FCC). The FCC is an economic regulator, not a grant-making agency. It has regulatory power over inter-state, but not intra-state, communications. He noted that the FCC charter does not mention tribes once. FCC-tribal interaction expanded in 1996 when the FCC worked to try to set up processes to talk to tribes. However, the information was not dispersed throughout the agency. Mr. Blackwell observed that, in 1990, 96% of US households had phones, but only 48% of Indian households had them. So although the FCC did not believe it had a direct trust responsibility, it nevertheless decided to act. The tribes said they needed assistance and outreach, which began in 2000. The FCC has had to implement some short, steep learning curves in order to consult. The placement of cellular towers involves tribes. The FCC had to fight to get funding to get out to Indian country. Mr. Blackwell noted that it is as important for federal agencies to get to the reservations as it is for tribes to come to Washington DC.
The workshop concluded on the second day with a panel session of tribal federal employees asked to share their experiences and observations working in both worlds. The focus of remarks was wide-ranging and provocative.
Mr. Joseph Hesbrook, with the Federal Emergency Management Agency (FEMA), reflected that Native people working for the federal government are considered to be the experts within their departments. They are supposed to know everything about the past, how tribes feel, and their culture. In reality, Mr. Hesbrook pointed out, that these individuals don't know everything about all tribes. He encouraged the audience to ask Native people about a tribe but also ask for understanding that being Native does not mean being a pan-native expert.
Mr. Hesbrook reminded the group that we work with a reputation. Because the tribal community is small, Native people who are federal employees tend to go to the same meetings, interact with the same people, and know the reputations of other Native federal employees, regardless of what agency a person works for. If there is a person that works in the government, he might have a good reputation with a certain tribe that you can take advantage of in beginning to work with that tribe. But Mr. Hesbrook also cautioned the audience to remember that just because a person is non-Indian does not mean that person cannot work with tribes. He noted that many non-Indians work with and understand tribes.
Mr. Hesbrook offered four important guidelines for working with tribes:
- Show up,
- Pay attention,
- Tell the truth. If you can help, help. If you can't, let them know. If you say, let me look into it, it means you aren't going to do anything. If you say, "There is no hope, there is nothing I can do," people will take that because it is true, and
- Don't get attached to the outcome. Work hard to present what you believe is right, but if it goes the other way, let it go.
Mr. Jerry Gidner, with the Bureau of Indian Affairs, offered his vision for what the future could look like for tribes. In Mr. Gidner's vision, Indian country comes together and decides for itself what its own vision is and where it is going. His personal vision for the future is one in which Native American tribes are united and working together as a community of nations. If one tribe has an economic venture, others should support it because a rising tide lifts all boats. Mr. Gidner's vision included a country where tribes are more entrepreneurial, and are playing significant roles in corporate American, Congress, the judiciary, and executive branches of government.
Mr. Jerry Cordova, who works for the Bureau of Land Management, elaborated that Native people who are federal employees function in both worlds. Mr. Cordova drew on his own experience of growing up in a tribal community to emphasize that that experience teaches a respect for all life. He noted that this is something that Native federal employees bring to the table. Mr. Cordova emphasized that Indians should not be the least of the American citizens. The federal government has a duty to consult and there should be no question in any one's mind as to why consultation occurs. Mr. Cordova encouraged the audience to ask questions, to seek out Tribal Liaisons in their agencies or departments. These individuals may not have the answer but may know someone who does or who can help find it.
The workshop presenters and audience both noted that government-to-government consultation is a dynamic process and no single template or uniform model exists. However through continuing dialogue and cross-education we can provide a means for institutional learning and improvement in consultation for the benefit of all governments and people involved. Some suggestions for improving consultation included:
- Visit the tribe.
- Educate and be educated.
- Ask questions.
- Be clear about how the tribe's input will be used. If there is no intent to use the tribe's input, be honest about it before the tribe invests time and resources into a project.
Workshop participants recommended continuing the discussion about government-to-government consultation in several types of sessions. The workshop participants also provided a list of topics for consideration at those future sessions. The workshop sponsors encourage/invite you to consider hosting a discussion about any of these topics posted on the website below. A complete set of the workshop notes and presentations can be downloaded from www.doi.gov/cadr.
Thank you to workshop presenters and attendees who engaged in thoughtful conversation about the state of consultation and the opportunities before us all in improving the process. Last, a special thanks to the Mr. Rick Miles Director of the Office of Dispute Resolution at the Federal Energy Regulatory Commission and his staff who generously provided meeting space and assistance with the logistics of the workshop.