Federal-Tribal Consultation: Background and Issues for Congress
Congressional research reportJun 12, 2024
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Federal-Tribal Consultation: Background and
Issues for Congress
June 12, 2024
Congressional Research Service
https://crsreports.congress.gov
R48093
SUMMARY
Federal-Tribal Consultation: Background and
Issues for Congress
In recent decades, congressional interest in federal-tribal consultation on federal actions has
grown, especially as some federally recognized Tribes (“Tribes”) and other Indigenous entities
have sought more input into federal decisionmaking. This interest stems, in part, from Tribes’
historical connection to lands and resources now owned or managed by the federal government.
Congress has not established a general tribal consultation mandate. In a variety of contexts,
Members of Congress, Tribes, other Indigenous entities, the Executive, and federal agencies have
characterized federal-tribal consultation in different ways. Generally, federal-tribal consultation
refers to formal dialogue between official representatives of the federal government and Tribes
(or, in some contexts, other Indigenous entities) that occurs while the federal agency considers or
undertakes a federal action, as shown below.
R48093
June 12, 2024
Mariel J. Murray,
Coordinator
Specialist in Natural
Resources Policy
Nicole T. Carter
Specialist in Natural
Resources Policy
Eva Lipiec
Specialist in Natural
Resource Policy
Federal-Tribal Consultation Spectrum
Mainon A. Schwartz
Legislative Attorney
Source: CRS.
Congress has required federal-tribal consultation in certain situations, such as when federal actions may impact tribal historic,
cultural, and religious sites; however, none of these mandates defines the term consultation. Therefore, executive branch
policy largely determines how consultation is performed. Since the 1970s, the executive branch has issued direction to guide
federal-tribal consultation. Various federal agencies, including many natural resource agencies, have issued internal federal
consultation policies and have updated their guidance during the Biden Administration.
A number of issues arise for Congress related to federal-tribal consultation. These issues include consideration of federaltribal consultation scope, timing, and representation as well as how agencies weigh input from tribal and other Indigenous
entities. In addition, Congress may consider whether to maintain, expand, or curtail current consultation requirements. Some
Tribes and other Indigenous entities have asserted that current agency consultation practices are inconsistent and
unenforceable, and they have asked for a government-wide statutory standard. At the same time, Congress and agencies may
find it challenging to balance these interests against other statutory mandates and priorities. For example, federal-tribal
consultation processes may delay federal actions.
Congress may assess current administrative and financial capacity challenges of entities conducting federal-tribal
consultation. Some federal agencies, Tribes, and other Indigenous entities have identified their limited administrative
capacity as hindering meaningful engagement. Whether and how much to fund consultation activities, including evaluating
the costs and benefits of existing methods for financing federal-tribal consultation, are also options for Congress’s
consideration.
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Federal-Tribal Consultation: Background and Issues for Congress
Contents
Introduction ..................................................................................................................................... 1
Terminology .................................................................................................................................... 2
Federal-Tribal Consultation: Conceptual Framework ..................................................................... 3
Types of Consultation................................................................................................................ 4
Communication ................................................................................................................... 4
Consensus ........................................................................................................................... 5
Consent ............................................................................................................................... 5
Federal-Tribal Consultation Authorities .......................................................................................... 6
Statutory Consultation Requirements........................................................................................ 6
Presidential Directives .............................................................................................................. 8
Federal Agency Policies .......................................................................................................... 10
U.S. Department of the Interior (DOI) .............................................................................. 10
U.S. Department of Agriculture (USDA).......................................................................... 13
U.S. Army Corps of Engineers (USACE) ......................................................................... 14
National Oceanic and Atmospheric Administration (NOAA) .......................................... 16
Issues and Options for Congress ................................................................................................... 17
Federal Actions Subject to Consultation (“What?”)................................................................ 17
Clarity of Federal-Tribal Consultation Requirements ....................................................... 19
Judicial Enforceability of Federal-Tribal Consultation ..................................................... 20
Representation of the Parties (“Who?”) .................................................................................. 24
Participation of Federal Agencies ..................................................................................... 24
Participation of Tribes and Other Indigenous Entities ...................................................... 25
Timing of consultation (“When?”) .......................................................................................... 26
Agency Consideration of Input Provided by Tribes and Other Indigenous Entities
(“How?”) .............................................................................................................................. 27
Confidentiality of Information Obtained Through Consultation ...................................... 29
Administrative Capacity.......................................................................................................... 30
Federal Funding ...................................................................................................................... 32
Figures
Figure 1. Federal-Tribal Consultation Spectrum ............................................................................. 4
Figure 2. Department of the Interior’s (DOI’s) Consensus-Seeking Model .................................. 12
Tables
Table A-1. Select Legislation That Proposed Establishing Federal-Tribal Consultation
Standards .................................................................................................................................... 35
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Federal-Tribal Consultation: Background and Issues for Congress
Appendixes
Appendix. Select Legislation That Proposed Establishing Federal-Tribal Consultation
Standards .................................................................................................................................... 34
Contacts
Author Information........................................................................................................................ 37
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Federal-Tribal Consultation: Background and Issues for Congress
Introduction
The history of the relationship among the United States, federally recognized Tribes (“Tribes”),
and other Indigenous entities is complex.1 In the 18th and 19th centuries, the federal government
removed many of these groups from their ancestral homelands through treaties and other means.2
Various treaties reserved certain rights to Tribes, such as to continue hunting, fishing, or gathering
on lands ceded to the federal government.3 Others included federal-tribal consultation
obligations.4 The federal trust responsibility is a legal obligation under which the United States,
through treaties, acts of Congress, and court decisions, “has charged itself with moral obligations
of the highest responsibility and trust” toward Tribes.5 The federal trust responsibility can include
obligations to protect tribal treaty rights as well as lands, assets, and resources on behalf of
Tribes.
Some Members of Congress, Tribes, and scholars have characterized federal-tribal consultation as
an obligation stemming from the federal trust responsibility.6 This trust responsibility underpins
many congressional and executive branch authorities directing agencies to conduct federal-tribal
consultation on federal actions.7 For example, Congress has mandated federal-tribal consultation
when federal actions may impact tribal and Indigenous historic, cultural, and religious sites.8
Since the 1970s, the executive branch has also issued direction to guide federal-tribal
consultation.9 During the Biden Administration, many federal departments and agencies with
natural-resource-related statutory missions have issued updated guidance to reflect
Administration priorities of generally increasing tribal consultation opportunities, as outlined in
the “Presidential Directives” section below. This report focuses on federal departments and
agencies with natural-resource-related statutory missions.
In recent decades, many Tribes and other Indigenous entities have advocated for a more robust
role in federal decisionmaking. Many Tribes and other Indigenous entities maintain ongoing
1 A federally recognized Tribe (“Tribe”) is an American Indian or Alaska Native entity that is recognized as having a
government-to-government relationship with the United States. See the “Terminology” section for more information
about Tribes and other Indigenous entities.
2 Prior to about 1871, the governments of the 13 original colonies and, subsequently, the United States government
negotiated tribal treaties. See National Archives, “Native American Heritage: American Indian Treaties,” at
https://www.archives.gov/research/native-americans/treaties.
3 For example, the Treaty Between the United States of America and the Nez Percé Indians, U.S.-Nez Percé Tribe, art.
III, June 11, 1855, 12 Stat. 957, 958, gave the Tribe “the right of taking fish at all usual and accustomed places.”
4 For example, the Treaty with the Kaskaskias, etc., U.S.-United Tribes of Kaskaskia & Peoria, Piankeshaw & Wea
Indians, art. 7, May 30, 1854, 10 Stat. 1082, 1084, required the President to consult with the Tribes about annual
payments. This report will not address specific treaty provisions regarding consultation.
5 Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942). For a detailed discussion of the connection between
the federal trust responsibility and consultation, see Colette Routel and Jeffrey Holth, “Toward Genuine Tribal
Consultation in the 21st Century,” University of Michigan Journal of Law Reform, vol. 46, no. 417 (2013), pp. 434,
454-456 (hereinafter Routel & Holth, “Genuine Consultation”).
6 See Statement of Rep. Nick J. Rahall, “Introduction of the Consultation and Coordination with Indian Tribal
Governments Act,” House debate, Congressional Record, daily edition, vol. 154, part 43 (March 13, 2008), pp. E383E384. See also Statement of National Congress of American Indians (NCAI), legislative hearing on H.R. 3490, H.R.
3522, H.R. 5608, H.R. 5680, and S. 2457, 110th Cong., 2nd sess., April 9, 2008, H.Hrg. 41-818 (Washington: GPO,
2008), p. 83 (hereinafter H.R. 5608 hearing).
7 For purposes of this report, federal action includes federal decisions, policies, activities, and funding in addition to
other actions of federal agencies.
8 See, e.g., the National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et seq.).
9 See, e.g., Executive Order 13084, “Consultation and Coordination with Indian Tribal Governments,” May 14, 1998, at
https://www.justice.gov/archive/otj/Presidential_Statements/presdoc3.htm (hereinafter E.O. 13084).
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physical, cultural, spiritual, and economic relationships with their homelands, even if they no
longer live on or near those lands.10 From their perspective, federal-tribal consultation may be
essential to protecting those relationships, perhaps especially when unique natural features or
resources are involved and become the potential subjects of federal action. At the same time,
Congress and agencies may find it challenging to balance tribal and other Indigenous entity
interests with other statutory mandates and congressional priorities.
This report begins by providing a conceptual framework for federal-tribal consultation, including
a description of different types of consultation that entail varying degrees of tribal and other
Indigenous entity input in federal actions. The report includes an overview of selected statutory
and administrative authorities for conducting federal-tribal consultation and selected natural
resource agencies’ policies on federal-tribal consultation. It concludes with potential
considerations for Congress, including an overview of recent legislative activities and options for
addressing federal-tribal consultation. This report covers the topic of consultation broadly, but it
is not a comprehensive discussion. For example, tribal co-management or co-stewardship—when
Tribes and other Indigenous entities play a long-term, formal role in managing federal lands—is
beyond the scope of this report.11
Terminology
Tribal terminology may vary by statute. This report uses terms and phrases as follows:
•
•
•
•
Alaska Native. Per the Alaska Native Claims Settlement Act (ANCSA; 43
U.S.C. §§1601 et seq.), this term generally refers to citizens of the United States
who are “one-fourth degree or more Alaska Indian (including Tsimshian Indians
not enrolled in the Metlaktla Indian Community) Eskimo, or Aleut blood, or
combination thereof.”12
Alaska Native Corporation (ANC). ANCSA divided the state of Alaska into 12
geographic regions and allowed Alaska Native Tribes to form Village and
Regional ANCs, which are for-profit corporations that may own and manage
resources for the benefit of their Alaska Native shareholders.13 ANCs themselves
are not Tribes, although there are 228 Tribes located within ANC boundaries.14
They are included in “other Indigenous entities” for purposes of this report.
Tribe. This term refers to any “Indian or Alaska Native tribe, band, nation,
pueblo, village or community that the Secretary of the Interior acknowledges to
exist as an Indian tribe” under the Federally Recognized Indian Tribe List Act of
1994 (25 U.S.C. §479a).
Native Hawaiian. This term refers to any individual who is a descendant of the
Indigenous people who, prior to 1778, “occupied and exercised sovereignty in
10 Monte Mills and Martin Nie, “Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal
Co-management on Federal Public Lands,” Public Land & Resources Law Review, vol. 44 (2021), p. 1, at
https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1741&context=plrlr (hereinafter Mills & Nie, “Bridges”).
11 For more information on co-management, see CRS Report R47563, Tribal Co-management of Federal Lands:
Overview and Selected Issues for Congress, by Mariel J. Murray.
12 ANCSA defines the term “Native” and uses that terminology throughout (43 U.S.C. §1602).
13 43 U.S.C. §§1601 et seq.
14 Department of the Interior (DOI), Bureau of Indian Affairs (BIA), “Alaska Region,” at https://www.bia.gov/regionaloffice/alaska-region.
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•
•
•
•
the area that now constitutes the State of Hawaii.”15 They are included in “other
Indigenous entities” for purposes of this report.
Native Hawaiian Organization (NHO). This term refers to any organization
that (1) “serves and represents the interests of Native Hawaiians,” (2) has “as a
primary and stated purpose the provision of services to Native Hawaiians,” and
(3) has “demonstrated expertise in aspects of historic preservation that are
significant to Native Hawaiians.”16 They are included in “other Indigenous
entities” for purposes of this report.
Other Indigenous Entities. This term refers to
• entities that are affiliated with Tribes (e.g., tribal organizations) and
• descendants of groups that are not currently federally recognized but that
inhabited the lands now comprising the United States when people of
different cultures or ethnic origins arrived.17 For purposes of this report, this
term includes Native Hawaiians, NHOs, ANCs, and state-recognized Tribes.
State-Recognized Tribe. This term refers to Tribes that are not federally
recognized but have been acknowledged by state law and sometimes reside on
state-recognized reservations.18 They are considered “other Indigenous entities”
for purposes of this report.
Tribal Land. This term generally refers to land or an interest in land that is
owned by a Tribe or tribal member or by the U.S. government on behalf of a
Tribe or tribal member.19
Federal-Tribal Consultation: Conceptual Framework
There is no single, statutory definition of federal-tribal consultation, and Members of Congress,
Tribes, other Indigenous entities, and federal agencies have interpreted and used the term in
different ways. In this report, federal-tribal consultation refers to formal dialogue between
official representatives of the federal government and Tribes (or, in some circumstances, other
Indigenous entities) that can occur at various points while the federal agency is considering or
undertaking a federal action.20 This section presents a conceptual framework for understanding
various approaches to federal-tribal consultation.
15 This report uses the NHPA’s definition of “Native Hawaiian” (54 U.S.C. §300313).
16 This report uses NHPA’s definition of “Native Hawaiian Organization” (54 U.S.C. §300314).
17 The term Indigenous is not consistently defined in the international or domestic legal context. Some entities, such as
the United Nations, have developed general guidelines for identifying Indigenous groups based on a variety of factors
(see United Nations, “Who Are Indigenous Peoples?” fact sheet, at https://www.un.org/esa/socdev/unpfii/documents/
5session_factsheet1.pdf).
18 Cohen’s Handbook of Federal Indian Law (Washington, DC: LexisNexis, 2012), “Chapter 3: Indian Tribes, Indians,
and Indian Country, §3.02.”
19 Often, statutory or regulatory text specifically define what constitutes tribal land or Indian land for its purposes. For
information on tribal land types, see CRS Report R46647, Tribal Land and Ownership Statuses: Overview and Selected
Issues for Congress, by Mariel J. Murray.
20 BIA, “What Is Tribal Consultation?” at https://www.bia.gov/service/tribal-consultations/what-tribal-consultation.
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Types of Consultation
Federal-tribal consultation may involve different degrees of tribal or other Indigenous entity input
in federal decisionmaking. This section presents a spectrum of potential types of federal-tribal
consultations, as illustrated in Figure 1.
Figure 1. Federal-Tribal Consultation Spectrum
Consultation Related to Federal Actions That May Impact Tribes and Other Indigenous Entities
Source: CRS.
Notes: Federal actions include federal decisions, policies, activities, and funding. Consent in this context means
free, prior, and informed consent, as described in an international human rights principle from the United
Nations Declaration on the Rights of Indigenous Peoples (https://www.un.org/development/desa/indigenous
peoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf). The categories are not defined in statute
and are meant to illustrate different types of consultation activities, ranging from less to more tribal or other
Indigenous entity input in federal actions.
As will be discussed later in the report, existing federal-tribal consultation authorities may fall in
different places along this spectrum, and not all points on the spectrum may be currently
represented in law.
Communication
Communication methods for federal-tribal consultation are not specified in statute. Therefore,
federal agencies have varying methods for communicating with Tribes, as outlined below in
“Federal Agency Policies.” Some agencies have considered their federal-tribal consultation
obligations met through one-way communication with Tribes, for example, by providing a public
notice outlining potential agency actions in the Federal Register.21 Other agencies have required
additional opportunities for tribal and other Indigenous entity input in decisionmaking.22 Agency
federal-tribal consultation processes can also involve a period for written comments on public
21 Routel & Holth, “Genuine Consultation,” pp. 454-456.
22 Ibid.
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notices; in-person or virtual national, regional, or area-specific meetings; or other possible
methods.23
Consensus
Congress has issued some direction to federal agencies on how to consider input from Tribes and
other Indigenous entities in decisionmaking but has not generally required consensus. In this
scenario, parties engage in a dialogue to reach a mutually agreeable course of action. Consensus
requires unanimous consent but does not preclude negotiation and compromise.24 Some Tribes,
other Indigenous entities, and federal agencies have expressed that the goal of federal-tribal
consultation should be reaching consensus.25
Consent
Under current law, certain federal actions on tribal lands—for example, the establishment of
rights of way—require the consent of tribal officials.26 Some Tribes and other Indigenous entities
have asked agencies to obtain their free, prior, and informed consent (FPIC) for federal actions
more broadly as part of the federal-tribal consultation process.27 FPIC is an international human
rights principle from the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP).28 The Biden Administration has described UNDRIP as “not legally binding or a
statement of current international law” but having “both moral and political force.”29 The term’s
components are summarized as follows:
•
•
•
Free. an Indigenous community participates in consultation without intimidation,
coercion, or manipulation.
Prior. federal-tribal consultation occurs as early as possible in the formulation of
the federal proposal.
Informed. the information provided to the Indigenous community is sufficiently
quantitative and qualitative, as well as objective, accurate, and clear.
23 See, e.g., DOI, “Departmental Manual: Procedures for Consultation with Indian Tribes,” November 30, 2022, p. 3, at
https://www.bia.gov/sites/default/files/dup/tcinfo/512-dm-5-final_508.pdf.
24 Judith Stein, “Decisionmaking Models,” Massachusetts Institute for Technology, Human Resources, at
https://hr.mit.edu/learning-topics/teams/articles/models.
25 See, e.g., BIA, “Compilation of Comments Received on Updates to Consultation Policy 512 DM 4 and 5,” p. 5,
November 2022, at http://www.bia.gov/sites/default/files/dup/tcinfo/comment-summary-consultation-policy-512-dm-4and-5-final_508_0.pdf (“Several Tribes agreed with the intent of the consensus-seeking model.”) (hereinafter BIA,
“DM Comments”). See also DOI, “Departmental Manual: Department of the Interior Policy on Consultation with
Indian Tribes,” November 30, 2022, p. 3, at https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf
(hereinafter DOI, “Consultation DM”).
26 25 U.S.C. §324.
27 See, e.g., BIA, “DM Comments,” p. 6 (“Tribes commented that rather than adopt the ‘consensus-seeking model,’ the
Biden Administration should adopt a tribal consultation policy based on the FPIC standard.”).
28 United Nations General Assembly, “United Nations Declaration on the Rights of Indigenous Peoples:
Resolution/Adopted by the General Assembly,” A/RES/61/295, 2 October 2007, Articles 19 and 32, at
https://www.refworld.org/legal/resolution/unga/2007/en/49353 (hereinafter UNDRIP).
29 White House Council on Native American Affairs, “Best Practices for Identifying and Protecting Tribal Treaty
Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal Decision-Making,”
November 30, 2022, p. 9, at https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf
(hereinafter White House, “Best Practices Guide”).
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•
Consent. Indigenous community consent is given through an explicit statement
of agreement when the process has met the other criteria (free, prior, and
informed).30
Under the FPIC framework, Tribes and other Indigenous entities must have full information, time,
and resources to consider federal actions in advance and the opportunity to give or withhold their
consent.31 UNDRIP articulates that government actors “shall consult and cooperate in good faith”
with Tribes and Indigenous peoples to obtain FPIC “before adopting and implementing legislative
or administrative measures that may affect them.”32 UNDRIP states that it is important that
government actors obtain FPIC “prior to the approval of any project affecting [Indigenous] lands
or territories and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.”33 The FPIC standard, if codified into U.S. law,
might provide Tribes and other Indigenous entities with greater influence. If Tribes disagree with
a proposed action, they could potentially withhold their consent. Although the United States in
2011 expressed support for UNDRIP, it has not formally adopted or codified the FPIC principle.34
Federal-Tribal Consultation Authorities
Agencies may be authorized or required to consult with Tribes and other Indigenous entities
pursuant to various authorities. A selection of legislative and administrative authorities are
provided below. Treaties and agreements between an agency and a Tribe may also shape when
and how consultation occurs in specific situations; however, a discussion of those authorities is
beyond the scope of this report.
Statutory Consultation Requirements
In the 1970s, Congress ushered in a new era of federal-tribal relations with a series of laws
providing for tribal self-determination and federal-tribal consultation. First, the Indian SelfDetermination and Education Assistance Act (ISDEAA; 25 U.S.C. §§5301 et seq.) outlined
federal policy on tribal self-determination, including the “effective and meaningful participation
by the Indian people in the planning, conduct, and administration of” federal programs and
services.35 Around that time, Congress also started to provide for Indigenous input in federal
decisionmaking through laws requiring federal agencies to consult with Tribes before undertaking
30 United Nations General Assembly, Human Rights Council, “Free, Prior and Informed Consent: A Human Rights-
Based Approach—Study of the Expert Mechanism on the Rights of Indigenous Peoples,” August 10, 2018, pp. 6-9, at
https://www.ohchr.org/en/documents/thematic-reports/free-prior-and-informed-consent-human-rights-based-approachstudy-expert.
31 Native American Rights Fund, University of Colorado Boulder, and University of California, Los Angeles School of
Law, “Tribal Implementation Toolkit,” pp. 28-32, at https://un-declaration.narf.org/wp-content/uploads/TribalImplementation-Toolkit-Digital-Edition.pdf. Some Tribes have incorporated the free, prior, and informed consent
(FPIC) framework into tribal law, setting forth tribal consultation expectations for federal agencies.
32 UNDRIP, Article 19.
33 UNDRIP, Article 32.
34 See U.S. Department of State, “Announcement of U.S. Support for the United Nations Declaration on the Rights of
Indigenous Peoples,” January 12, 2011, at https://2009-2017.state.gov/s/srgia/154553.htm (The U.S. State Department
has interpreted FPIC to signify “a process of meaningful consultation with tribal leaders, but not necessarily the
agreement of those leaders, before the actions addressed in those consultations are taken.”).
35 25 U.S.C. §5302(b).
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certain federal actions.36 A selection of these statutory authorities is listed below in alphabetical
order:37
•
•
•
•
American Indian Religious Freedom Act of 1978 (AIRFA; 42 U.S.C. §§1996
et seq.). This legislation expresses the policy of the United States to protect the
right of American Indians, Alaska Natives, and Native Hawaiians to “believe,
express, and exercise” traditional religions and religious practices, including
access to sites and use and possession of sacred objects.38 AIRFA instructs the
President to direct federal agencies to evaluate their policies and procedures, in
consultation with native traditional religious leaders, to preserve Native
American religious cultural rights and practices.39
Archaeological Resources Protection Act of 1979 (ARPA; 16 U.S.C. §§470aa470mm). ARPA expresses Congress’s intent to protect archaeological resources
on public lands and tribal lands. ARPA directs the Secretaries of the Interior,
Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley
Authority to consult with Tribes, among other entities, before issuing
implementing regulations.40
National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et
seq.). The NHPA outlines a process for federal agencies to follow when projects
may affect certain historic resources. Among other things, Section 106 of the
NHPA requires federal agencies to take into account the effects of projects they
undertake (carry out, authorize, or financially assist) on historic properties.41 As
part of that consideration, federal agencies must consult with any Tribe or NHO
that “attaches religious and cultural significance” to historic properties
potentially affected by the undertaking.42
Native American Graves Protection and Repatriation Act (NAGPRA;
25 U.S.C. §§3001 et seq.). NAGPRA requires museums and federal agencies to
identify Native American human remains, funerary items, and objects of cultural
significance in their collections and on federal lands and to consult with Tribes
and NHOs to repatriate them.43
36 See, e.g., National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et seq.), National Environmental
Policy Act of 1970 (NEPA; 42 U.S.C. §§4321 et seq.), and Archaeological Resources Protection Act of 1979 (ARPA;
16 U.S.C. §§470aa-470mm).
37 For a more comprehensive list of federal-tribal consultation requirements in federal statutes and regulations, see
Derek C. Haskew, “Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or
Another Badge of Shame?” American Indian Law Review, vol. 24, no. 1 (1999), pp. 21-23.
38 42 U.S.C. §1996.
39 42 U.S.C. §1996 note.
40 16 U.S.C. §470ii.
41 54 U.S.C. §306108. The Advisory Council on Historic Preservation (ACHP) oversees the NHPA §106 review
process. Created by NHPA, the ACHP is an independent agency consisting of federal, state, and tribal government
members, as well as experts in historic preservation and members of the public. For more information about NHPA’s
federal-tribal consultation requirements, see CRS Report R47543, Historic Properties and Federal Responsibilities: An
Introduction to Section 106 Reviews, by Mark K. DeSantis.
42 54 U.S.C. §302706(b). In its NHPA implementing regulations, the ACHP defined consultation as “the process of
seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement” with them
through this process (36 C.F.R. §800.16).
43 See generally 25 U.S.C. §§3001 et seq. Native American is defined as a “Tribe, people, or culture that is indigenous
to the United States” (25 U.S.C. §3001(9)). For more information on NAGPRA requirements, see CRS In Focus
(continued...)
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•
The Safeguard Tribal Objects of Patrimony Act of 2021 (STOP Act;
25 U.S.C. §§3071 et seq.). The STOP Act prohibits the export of cultural items
covered under NAGPRA and ARPA and increases penalties for stealing and
illegally trafficking such items.44 It also creates an export certification system
whereby anyone seeking to export an item that qualifies as a Native American
cultural item (under NAGPRA) or archaeological resource (under ARPA) must
apply for a certification.45 The act directs the Secretary of the Interior to convene
an advisory “Native working group” consisting of at least 12 representatives of
Tribes and NHOs to develop the certification system.46
National Environmental Policy Act Regulations
Agency regulations implementing statutory directives sometimes contemplate or require tribal consultations even
when not expressly mentioned by the governing statute. For example, the National Environmental Policy Act
(NEPA; 42 U.S.C. §§4321 et seq.) generally requires federal agencies to consider the potential impacts of their
actions on the human environment. For proposed actions likely to affect one or more Tribes, the Council on
Environmental Quality regulations direct federal agencies to consult early in the planning process with Tribes
whose involvement is reasonably foreseeable. Agencies must invite likely affected Tribes to participate in the
scoping of issues and request comments. Through an agreement with the lead federal agency for a proposed
action, a Tribe also may become a cooperating agency, which includes opportunities for participation in the lead
agency’s NEPA process.
Sources: 42 U.S.C. §§4321-4327, 40 C.F.R. §1501.2(b)(4)(ii), 40 C.F.R. §1501.8(a), 40 C.F.R. §1501.9(b), and
40 C.F.R. §1503.1. For an overview of NEPA environmental reviews, see CRS In Focus IF12417, Environmental
Reviews and the 118th Congress, by Kristen Hite.
Presidential Directives
Since the 1970s, the executive branch has issued many directives about federal-tribal consultation
to federal agencies; a chronological list of selected presidential actions is below.47
•
•
Executive Order 13084, “Consultation and Coordination with Indian Tribal
Governments” (E.O. 13084). Issued by President Clinton in 1998, this order
mandates that agencies consult with Tribes in developing regulations and
consider increasing the flexibility of waiver of statutory or regulatory
requirements for Tribes.48
Executive Order 13175, “Consultation and Coordination with Indian Tribal
Governments” (E.O. 13175). Issued by President Clinton in 2000, this order
mandates consultation with Tribes when federal agency policies involve
regulations, proposed legislation, or other policy actions that have a “substantial
IF12523, Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions, by
Mark K. DeSantis and Nik Taylor.
44 25 U.S.C. §3071.
45 25 U.S.C. §3073.
46 25 U.S.C. §3076.
47 For example, in a 1970 message to Congress, President Nixon expanded on the idea of the United States’
government-to-government relationship with Tribes, expressing the view that they should participate in policy
development “to the greatest possible degree.” President Nixon’s Special Message on Indian Affairs, delivered to
Congress in 1970, Special Message to the Congress on Indian Affairs, Public Papers of the Presidents of the United
States: Richard M. Nixon, p. 564 (July 8, 1970).
48 E.O. 13084.
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•
•
•
•
direct effect” on Tribes or “tribal implications.”49 E.O. 13175 requires agencies to
develop a process to ensure “meaningful and timely input.”50
Presidential Memorandum on Government-to-Government Relationship
with Tribal Government (2004 P.M.). Issued by President G.W. Bush in 2004,
this memorandum recommits agencies to working on a government-togovernment basis with Tribes.51
Presidential Memorandum of November 5, 2009 (2009 P.M.). Issued by
President Obama, this memorandum requires agencies to “prepare and
periodically update” a “detailed plan of actions” to implement E.O. 13175.52 The
2009 P.M. requires tribal consultation on agency plans prior to White House
Office of Management and Budget (OMB) review.
Presidential Memorandum on Tribal Consultation and Strengthening
Nation-to-Nation Relationships (2021 P.M.). Issued by President Biden in
2021, this memorandum reaffirms the 2009 P.M, also requiring agencies to create
a “detailed plan of actions” to implement E.O. 13175.53 According to the 2021
P.M., the Biden Administration also prioritizes the following principles:
respecting tribal sovereignty and self-governance; fulfilling federal trust and
treaty obligations; and engaging in “regular, meaningful, and robust” consultation
with Tribes.
Presidential Memorandum of November 30, 2022: Uniform Standards for
Tribal Consultation (2022 P.M.). Issued by President Biden, this memorandum
directs agencies to implement federal-tribal consultation “best practices,” such as
designating an agency point of contact for consultation, creating guidance on
consultation notices, keeping records of consultation, and training, among other
things.54
All of these selected presidential actions include limitations and disclaimers.55 For example, each
includes a provision stating that it does not create any substantive or procedural right or benefit
enforceable by a party against the United States.56 Each also states that its directives should be
implemented consistent with, as permitted by, or to the extent permitted by, law or notes that it
should not be construed to impair or affect an agency’s legal authority.57
49 Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 Federal Register
67249 (2000) (hereinafter E.O. 13175). Congress has stated that E.O. 13175’s tribal definition includes ANCs (P.L.
108-199, as amended, provided that “[t]he Director of the Office of Management and Budget and all Federal agencies
shall hereafter consult with Alaska Native corporations on the same basis as Tribes under Executive Order No. 13175.”
50 Ibid.
51 U.S. President (G. W. Bush), “Memorandum on Government-to-Government Relationship With Tribal
Governments,” Public Papers of the Presidents of the United States: Administration of George W. Bush, 2004
(Washington: GPO, 2004), p. 2106, at https://www.govinfo.gov/content/pkg/WCPD-2004-09-27/pdf/WCPD-2004-0927-Pg2106.pdf (hereinafter 2004 P.M.)
52 U.S. President (Obama), “Memorandum of November 5, 2009: Tribal Consultation,” 74 Federal Register 57879,
November 5, 2009 (hereinafter 2009 P.M.).
53 U.S. President (Biden), “Tribal Consultation and Strengthening Nation-to-Nation Relationships,” 86 Federal
Register 7491, January 29, 2021 (hereinafter 2021 P.M.).
54 U.S. President (Biden), “Memorandum of November 30, 2022: Uniform Standards for Tribal Consultation,” 87
Federal Register 74479, December 5, 2022 (hereinafter 2022 P.M.).
55 For more information about executive orders, see CRS Report R46738, Executive Orders: An Introduction,
coordinated by Abigail A. Graber.
56 E.O. 13084 §7, E.O. 13175 §10, 2004 P.M., 2009 P.M., 2021 P.M. §3, and 2022 P.M. §11.
57 E.O. 13084 §4; E.O. 13175 §§3, 5, & 6; 2004 P.M.; 2009 P.M.; 2021 P.M. §3; and 2022 P.M. §§2, 5, 7, & 11.
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In addition to presidential memoranda addressing federal-tribal consultation policy, the Biden
Administration has prioritized agency consideration of Tribes’ and other Indigenous entities’
rights and knowledge through federal-tribal consultation. For example, in 2021, 17 agencies
signed an Interagency Treaty Memorandum of Understanding (MOU) committing to protecting
tribal treaty and reserved rights to natural and cultural resources through consideration of these
rights in agency decisionmaking.58 In 2022, those agencies published a guide that included best
practices for federal-tribal consultation.59 In 2021 and 2022, the White House also issued a series
of policies recognizing the value of Indigenous knowledge and directed federal agencies to
develop guidance to implement these policies.60 These White House policies acknowledged that
federal-tribal consultation may provide opportunities to understand and discuss how Indigenous
knowledge can inform federal decisionmaking.61
Federal Agency Policies
Federal agencies have responded to congressional and presidential direction on federal-tribal
consultation by issuing regulations, guidance, and other administrative actions. Federal agencies
with a history of interaction with Tribes and other Indigenous entities, such as the Bureau of
Indian Affairs (BIA), have issued more robust policies than other agencies. Many natural resource
agencies have issued updated guidance in recent years to reflect Biden Administration policies.
According to the White House, nine federal agencies, including the National Oceanic and
Atmospheric Administration (NOAA), the U.S. Army Corps of Engineers (USACE), the U.S.
Department of Agriculture (USDA), and the U.S. Department of the Interior (DOI), were revising
or updating their federal-tribal consultation policies in 2023.62 The following includes a brief
summary of those four agency or department policies addressing federal-tribal consultation.63
U.S. Department of the Interior (DOI)
Since 1972, DOI and its bureaus have issued various federal-tribal consultation policies.64 BIA,
the principal federal agency charged with administering policy and programs for Tribes and other
Indigenous entities, was the first agency to issue a federal-tribal consultation policy in 1972. This
58 ACHP et al., “Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the
Protection of Tribal Treaty Rights and Reserved Rights,” November 15, 2021, at https://www.doi.gov/sites/doi.gov/
files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf (hereinafter “Interagency Treaty
MOU”).
59 White House, “Best Practices Guide.”
60 White House Council on Environmental Quality (CEQ) and Office of Science and Technology Policy (OSTP),
“Indigenous Traditional Ecological Knowledge and Federal Decision Making,” November 15, 2021, at
https://www.whitehouse.gov/wp-content/uploads/2021/11/111521-OSTP-CEQ-ITEK-Memo.pdf. See also CEQ and
OSTP, “Guidance for Federal Departments and Agencies on Indigenous Knowledge,” November 30, 2022, at
https://www.bia.gov/sites/default/files/dup/inline-files/ik_guidance_implementation_memo.pdf. Although there is no
single definition of Indigenous knowledge, one study defined it as “a cumulative body of knowledge, practice, and
belief ... handed down through generations by cultural transmission, about the relationship of living beings (including
humans) with one another and with their environment” (Fikret Berkes et al., “Rediscovery of Traditional Ecological
Knowledge as Adaptive Management,” Ecological Applications, vol. 10, no. 5 (2000), p. 1252, at
https://www.jstor.org/stable/2641280).
61 CEQ and OSTP, “Guidance for Federal Departments and Agencies on Indigenous Knowledge,” November 30, 2022,
at https://www.bia.gov/sites/default/files/dup/inline-files/ik_guidance_implementation_memo.pdf.
62 White House, “2023 Progress Report for Tribal Nations,” p. 10, at https://www.whitehouse.gov/wpcontent/uploads/2023/12/2023.12.04-TNS-Progress-Report.pdf.
63 These four agencies or departments have natural-resource-related missions.
64 See DOI, “Resources for Tribal Nations,” at https://www.doi.gov/priorities/tribal-consultation/resources-tribalnations.
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policy defined tribal consultation as “providing pertinent information to and obtaining the views
of tribal governing bodies.”65 This policy required consultation on BIA personnel and budgetary
policies and other BIA policies as BIA deemed appropriate.66
Since then, DOI and its individual bureaus have issued many federal-tribal consultation policies,
which collectively formed the foundation for DOI’s most recent policy in 2022.67 The 2022 DOI
policy requires the department to consult with Tribes for any departmental action with “tribal
implications,” which includes any action potentially affecting
•
•
•
•
tribal cultural practices or treaty rights;
the ability of a Tribe to govern or provide services to its members;
a Tribe’s formal relationship with DOI; or
any action planned by a nonfederal entity that involves funding, approval, or
other DOI final agency action that could affect Tribes.68
DOI did not adopt the FPIC standard in the 2022 policy, stating that doing so would “deviate
from the current position of the United States”; DOI did, however, include a consensus-based
requirement in the policy.69 The policy emphasized DOI’s goal “to achieve consensus wherever
possible” in federal-tribal consultation using the consensus-seeking model shown in Figure 2.70
65 The BIA guidelines are discussed and excerpted in Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717-721
(8th Cir. 1979).
66 Ibid., pp. 717-718.
67 For example, DOI’s Bureau of Land Management (BLM) issued a consultation policy in 2016 (BLM, “BLM Manual
1780 Tribal Relations (P),” December 15, 2016, at https://www.blm.gov/sites/blm.gov/files/uploads/MS%201780.pdf.
68
DOI, “Consultation DM,” p. 3.
69 BIA, “DM Comments,” p. 6.
70 DOI, “Consultation DM,” p. 8.
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Figure 2. Department of the Interior’s (DOI’s) Consensus-Seeking Model
DOI Federal-Tribal Consultation Manual
Source: DOI, “Departmental Manual: DOI Policy on Consultation with Indian Tribes,” November 30, 2022, at
https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf.
Notes: In its 2022 Departmental Manual on federal-tribal consultation, DOI directed its staff “to achieve
consensus wherever possible” using this model. The model illustrates low potential or need for consensus about
departmental actions in the outer rings and increasing potential or need for consensus about departmental
actions in the inner rings.
In 2022, DOI also issued policies directing its staff to consult with several other Indigenous
entities. In one such policy, DOI stated that it would treat Tribes and ANCs the same for purposes
of fulfilling federal-tribal consultation requirements under E.O. 13175.71 DOI also stated that if
concerns expressed by Tribes and ANCs “substantively differ,” departmental officials “shall give
due consideration to the rights of sovereignty and self-government” of Tribes and to the unique
legal status and rights of ANCs.72 The draft consultation policy for Native Hawaiians included
DOI’s commitment to consult with them, stating that a special political and trust relationship
between the federal government and Native Hawaiians may continue to exist even without a
formal government-to-government relationship.73
In 2023, DOI issued an official policy encouraging the incorporation of Indigenous knowledge
into departmental decisionmaking.74 Among other things, the document appeared to defer to
Tribes and other Indigenous entities to provide FPIC regarding the use of their knowledge in DOI
71 DOI, “Departmental Manual: Department of the Interior Policy on Consultation with Alaska Native Claims
Settlement Act Corporations,” November 30, 2022, p. 2, at https://www.doi.gov/sites/doi.gov/files/elips/
documents/512-dm-6.pdf (hereinafter DOI, “ANC Policy”).
72 Ibid., p. 1.
73 DOI, “Departmental Manual: Department of the Interior Policy on Consultation with the Native Hawaiian
Community,” November 30, 2022, p. 2, at https://www.doi.gov/sites/doi.gov/files/513-dm-1-oes-clean-508.pdf.
74 DOI, “Departmental Manual: Departmental Responsibilities for Consideration and Inclusion of Indigenous
Knowledge in Departmental Actions and Scientific Research,” December 5, 2023, p. 1, at https://www.doi.gov/
document-library/departmental-manual/301-dm-7-departmental-responsibilities-consideration-and.
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policies.75 However, the policy clarified that FPIC was defined as consent for DOI to use
Indigenous knowledge, not to indicate consent to any underlying project.76
U.S. Department of Agriculture (USDA)
Over the last 25 years, USDA has issued guidance on federal-tribal consultation. After E.O.
13175 was issued in 2000, USDA adopted a series of departmental regulations on tribal
consultation.77 Then, in response to the 2009 P.M., USDA issued a plan of action, which included
the projected establishment of formal tribal consultation policies at all USDA agencies.78 In
addition, USDA noted that it had recently established a new Office of Tribal Relations, which
would oversee the department’s agency and office policies and processes for consultation, among
other duties.79 In 2013, USDA issued Departmental Regulation 1350-002, which directed USDA
agencies to provide Tribes with the opportunity for consultation in policy development and
program activities that have “direct and substantial effects” on one or more Tribes.80 USDA stated
that this policy would ensure that tribal priorities “are heard and fully considered” in federal
decisionmaking.81
In response to the 2021 P.M., USDA submitted a plan of action and a subsequent progress report
related to agency actions to achieve goals of the 2021 P.M. For example, the report discussed
expanding USDA tribal expertise, updating consultation policies based on tribal feedback, and
creating reporting and accountability requirements.82 USDA also announced the creation of a
Tribal Advisory Committee (TAC), as authorized by the 2018 farm bill (P.L. 115-334), which
would advise USDA on tribal consultation.83
USDA has not updated its official departmental tribal consultation policy since 2013, although
individual USDA agencies have issued updated policies to reflect the Biden Administration’s
priorities. For example, in 2022, the Forest Service issued its “Strengthening Tribal Consultations
and Nation-to-Nation Relationships” action plan, which included the goal of “expanding scope
and scale of Tribal involvement in agency work, planning, and decision making.”84 The Forest
Service action plan also referenced the Interagency Treaty MOU.
75 Ibid., p. 7.
76 Ibid., p. 4.
77 See, e.g., U.S. Department of Agriculture (USDA), “Departmental Regulation 1350-001: Tribal Consultation,” at
https://www.usda.gov/sites/default/files/documents/DR1350-001.pdf.
78 In its action plan, USDA acknowledged that historically, USDA had conducted consultations with Tribes on an ad
hoc basis, except for two agencies: the Natural Resources Conservation Service and the Forest Service. See USDA,
“United States Department of Agriculture Action Plan for Tribal Consultation and Collaboration,” at
https://www.usda.gov/sites/default/files/documents/ConsultationPlan.pdf.
79 USDA, “United States Department of Agriculture Action Plan for Tribal Consultation and Collaboration,” p. 7, at
https://www.usda.gov/sites/default/files/documents/ConsultationPlan.pdf.
80 USDA, “Departmental Regulation 1350-002: Tribal Consultation, Coordination, and Collaboration,” January 18,
2013), at https://www.usda.gov/sites/default/files/documents/USDA_DR_Tribal_Consultation_Coordination_and_
Collaboration_OTR_final_1_18.pdf.
81 Ibid.
82 USDA, “United States Department of Agriculture Plan of Action 270 Day Progress Report,” at
https://www.usda.gov/sites/default/files/documents/usda-consultation-plan-action-270-day-report.pdf.
83 USDA, “USDA Tribal Accomplishments 2022,” p. 1, at https://www.usda.gov/sites/default/files/documents/usdatribal-accomplishments-2022.pdf (hereinafter USDA, “2022 Tribal Accomplishments”).
84 USDA, Forest Service, “Strengthening Tribal Consultations and Nation-to-Nation Relationships,” February 2023, p.
19, at https://www.fs.usda.gov/sites/default/files/fs_media/fs_document/Strengthening-Tribal-Relations.pdf.
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U.S. Army Corps of Engineers (USACE)
As part of its civil works responsibilities, USACE builds and operates water resource projects
across the nation. USACE’s inventory of water projects includes more than 700 dams and
reservoirs and almost 12 million acres of USACE-managed lands. Congress directs USACE to
undertake navigation improvements, riverine and coastal flood risk management projects, and
aquatic ecosystem restoration, as well as other activities. In addition to planning, constructing,
and managing federal water resource projects, USACE also administers a regulatory program for
the permitting of nonfederal actions affecting wetlands and navigable waters. For example,
USACE administers Section 404 of the Clean Water Act and other regulatory authorities; permits
under these authorities may be required for project developers to proceed with activities and
projects in regulated waters.
USACE Tribal Consultation Policies and Tribal Liaisons
The Assistant Secretary of the Army (Civil Works; ASACW) released an updated USACE Tribal
Consultation Policy on December 5, 2023, replacing an earlier policy from 2012.85 Both the 2012
and 2023 policies applied to both the USACE civil works projects and the USACE regulatory
program. The new policy provides the following definition of consultation:
Consultation: Regular, meaningful, and robust communication process involving USACE
and Tribal officials with decision-making authority and which emphasizes trust, respect,
and shared responsibility between USACE and the Tribal Nation or ANC. To the extent
practicable and permitted by law, consultation works toward mutual consensus and begins
at the earliest planning stages before decisions are made and actions are taken. Consultation
is an active, respectful and timely dialogue concerning actions taken by USACE that have
Tribal implications on Tribal resources, Tribal rights (including treaty rights), or tribal
lands. Consultations are also conducted for actions which have a substantial direct effect
on ANCs including actions on or affecting ANCSA lands, or actions for which any Tribes
have expressed interest in consultation.86
The new policy identifies six tribal policy principles that broadly relate to tribal sovereignty; the
trust responsibility; the government-to-government relationship; consultation elements; support of
tribal self-determination, self-reliance, and capacity building; and protection of natural and
cultural resources.87 The ASACW’s memo on the new policy directs USACE to develop
implementing guidance and to plan for the necessary training and “culture changes.”88 The new
85 Memorandum from Assistance Secretary of the Army (Civil Works), Michael L. Connor, “Updated U.S. Army
Corps of Engineers Tribal Consultation Policy,” December 5, 2023 (hereinafter 2023 “USACE Tribal Consultation
Policy”); Memorandum from Lieutenant General Thomas P. Bostick, U.S. Army Commanding, to Commanders,
Directors and Chiefs of Separate Offices, U.S. Army Corps of Engineers (USACE), “Tribal Consultation Policy,”
November 1, 2012. Prior to releasing a draft policy in March 2023, in 2022 USACE had provided for tribal meetings
and written recommendation for updating Army Corps civil works policy priorities, including an update of its tribal
consultation policies (87 Federal Register 33756).
86 “U.S. Army Corps of Engineers – Civil Works Tribal Consultation Policy” enclosure in 2023 “USACE Tribal
Consultation Policy.” The new policy notes that a separate consultation policy with Native Hawaiian Communities is
under development.
87 The 2023 USACE Tribal Consultation Policy states, “As a matter of Federal law, only Congress has the authority to
abrogate or interfere with tribal treaty rights, which has not been delegated to USACE. USACE cannot authorize,
approve, or carry out any activities which would result in a violation of a Tribal treaty right.” Regarding the protection
of natural and cultural resources in addition to referencing NAGPRA and NHPA, the 2023 policy states “USACE
recognizes the importance of strict compliance with Native American Graves Protection and Repatriation Act
(NAGPRA), the National Historic Preservation Act (NHPA), the National Environmental Policy Act, the Endangered
Species Act, and other [statutes] concerning cultural and natural resources.”
88 2023 “USACE Tribal Consultation Policy.”
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policy also reflects that the Department of Defense, of which USACE is part, signed on to the
Interagency Treaty MOU, which includes as an appendix the 2022 White House Council on
Native American Affairs guide “Best Practices for Identifying and Protecting Tribal Treaty
Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal
Decision-Making.” The new policy references the 2022 P.M. as part of the protocols for notice of
consultation and for the contents of the record of consultation.
Adoption of the new policy follows congressional attention to USACE consultation. In Section
112 of the Water Resources Development Act (WRDA) of 2020, Congress directed how USACE
should conduct consultation in carrying out USACE water resource projects.89 In WRDA 2022,
Congress established a requirement that each USACE district containing a “tribal community,”
shall have a tribal liaison.90 According to USACE, as of December 2023, there are 51 USACE
district staff members who are identified as tribal liaisons.91
USACE Historic Preservation and Tribal Consultation
USACE has several policies regarding NHPA Section 106 compliance for undertakings associated
with its water projects.92 Apart from its regulatory program, USACE generally follows the NHPA
Section 106 regulations promulgated by the Advisory Council for Historic Preservation (ACHP;
36 C.F.R. Subpart 800), which establish specific consultation requirements for federal agencies
when projects occur on tribal land or impact tribal historic properties. In contrast, USACE’s
regulatory program follows USACE-developed procedures (33 C.F.R. Subpart 325 Appendix C,
“Procedures for the Protection of Historic Properties”) to comply with NHPA Section 106
requirements, other applicable historic preservation laws, and presidential directives. The USACE
regulatory program’s Appendix C procedures have been the subject of disagreements between
89 Section 112(d) of Division AA of P.L. 116-260 states,
TRIBAL LANDS AND CONSULTATION.—In carrying out water resources development
projects, the Secretary shall, to the extent practicable and in accordance with the Tribal
Consultation Policy affirmed and formalized by the Secretary on November 1, 2012 (or a successor
policy)—(1) promote meaningful involvement with Indian Tribes specifically on any Tribal lands
near or adjacent to any water resources development projects, for purposes of identifying lands of
ancestral, cultural, or religious importance; (2) consult with Indian Tribes specifically on any Tribal
areas near or adjacent to any water resources development projects, for purposes of identifying
lands, waters, and other resources critical to the livelihood of the Indian Tribes; and (3) cooperate
with Indian Tribes to avoid, or otherwise find alternate solutions with respect to, such areas.
According to USACE, the concepts included in Section 112(d) will also be included in the development of best
practices guides to accompany 2023 USACE Tribal Consultation Policy (USACE communication with CRS, December
4, 2023).
90 Section 8112 of Title LXXXI, Water Resources Development Act of 2022 (WRDA 2022), of Division H of the
James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (P.L. 117-263). For this provision, WRDA
2022 defined “tribal community” as “a community of people who are recognized and defined under Federal law as
indigenous people of the United States.” Among the duties specified for the liaisons are “improving, expanding, and
facilitating government-to-government consultation between Tribal peoples and the Corps of Engineers.” Another duty
is being responsible for “training and tools to facilitate the ability of Corps of Engineers staff to effectively engage with
Tribal peoples.” Implementation status on this provision has not been made publicly available.
91 USACE communication with CRS, December 4, 2023. Each of the 38 districts has a designated tribal liaison and 13
districts have at least 1 additional tribal liaison to assist with tribal consultation in the USACE Regulatory Division or
other USACE mission areas. Also, each of the 8 USACE divisions has a designated tribal liaison, and there is a senior
tribal liaison position at USACE Headquarters. According to USACE, a number of district and division tribal liaisons
serve full time.
92 This includes USACE granting easements at its projects.
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USACE and the ACHP, Tribes, and other stakeholders, as noted in a 2017 ACHP report.93 For
example, USACE nationwide permits allow nonfederal permit applicants to identify historic
properties (or their absence) without input from Tribes. On February 9, 2024, USACE published a
proposed rule to remove Appendix C and remove references to Appendix C in its regulations for
the regulatory program.94
National Oceanic and Atmospheric Administration (NOAA)
NOAA is an agency within the Department of Commerce (DOC) with a mission to understand
and predict changes in climate, weather, ocean, and coasts; to share that knowledge and
information with others; and to conserve and manage coastal and marine ecosystems.95 DOC’s
formal federal-tribal consultation policies were last updated in 2012, via a DOC Department
Administrative Order, DAO 218-8.96 DAO 218-8 implements E.O. 13175, the 2009 P.M., and
related OMB guidance and directs readers to a department-level guidance document describing
how the DOC is to work with Tribes on a government-to-government basis.97 The guidance, last
updated in 2013, “provides uniform standards and methodology outlining consultation procedures
for all [DOC] personnel working with Tribal governments regarding policies that have tribal
implications.”98 Under the guidance, consultation may take a variety of forms, including
meetings, letters, webinars, on-site visits, and participation in regional or national events. The
consultation is to “entail an informed discussion of the proposed federal policy and associated
tribal concerns” between the Tribal Consultation Official and tribal officials.99 DAO 218-8 also
established a DOC Tribal Consultation Official responsible for ensuring DOC compliance with
E.O. 13175, DAO 218-8, and the guidance.100 In 2021, DOC also signed onto the Interagency
Treaty MOU.101
At the agency level, NOAA policies build on the same guidance and direction as DAO 218-8, the
2021 P.M., and the Interagency Treaty MOU. NOAA has laid out its federal-tribal consultation
policies in a NOAA Administrative Order, NAO 218-8A, and several guidance documents, all
released in 2023.102 Under NAO 218-8A, the NOAA Administrator must appoint and maintain a
93 ACHP, “Improving Tribal Consultation in Infrastructure Projects,” p. 13, at https://www.achp.gov/sites/default/files/
reports/2018-11/ImprovingTribalConsultationinInfrastructureProjectsFinalApril272017_0.pdf.
94 89 Federal Register 9079. As an earlier step toward the proposed changes, the Department of the Army, through
publication of a Federal Register notice in June 2022 (87 Federal Register 33756), solicited comment on approaches to
modernize Appendix C.
95 National Oceanic and Atmospheric Administration (NOAA), “Our Mission and Vision,” at https://www.noaa.gov/
our-mission-and-vision.
96 Department of Commerce (DOC), Office of Privacy and Open Government, “DAO 218-8: Consultation and
Coordination with Indian Tribal Governments,” effective date April 26, 2012, at
https://www.osec.doc.gov/opog/dmp/daos/dao218_8.html (hereinafter DAO 218-8).
97 DOC, “Tribal Consultation and Coordination Policy of the U.S. Department of Commerce,” 2013, at
https://www.commerce.gov/sites/default/files/media/files/2013/tribal-consultation-final.pdf (hereinafter DOC, “Tribal
Consultation Policy”). Under the policy, DOC aims to consult with Alaska Native Corporations “in a manner as close
as possible” to consultations with Tribes in Alaska (p. 5).
98 DOC, “Tribal Consultation Policy,” p. 1.
99 Ibid., p. 4.
100 DAO 218-8, §5.
101 Interagency Treaty MOU.
102 NOAA, “NAO 218-8A: Policy on Government-to-Government Consultation with Federally Recognized Indian
Tribal Governments,” effective June 27, 2023, at https://www.noaa.gov/organization/administration/nao-218-8Apolicy-on-G2G-consultation-with-federally-Recognized-Tribal-Governments (hereafter NAO 218-8A); NOAA,
“NOAA Procedures for Government-to-Government Consultation with Federally Recognized Indian Tribal
(continued...)
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NOAA Tribal Liaison with a variety of responsibilities, including developing guidance and
maintaining documentation of agency consultations.103 The NOAA tribal consultation procedures
require each line office, staff office, and regional team to establish tribal liaisons as well.104 The
agency’s best practices document on incorporating Indigenous knowledge in decisionmaking
“goes beyond” the consultation procedures “to recognize and be inclusive of all Indigenous
Peoples within the United States and the importance of equitable engagement and involvement of
their knowledge.”105
Issues and Options for Congress
Members of Congress, Tribes, other Indigenous entities, federal agencies, and others have
identified various federal-tribal consultation issues that are the subjects of ongoing policy debate,
including the following:
•
•
•
•
•
•
Federal actions subject to consultation (“what?”)
Representation of the parties (“who?”)
Timing of consultation (“when?”)
Agency consideration of input provided by Tribes and other Indigenous entities
(“how?”)
Administrative capacity
Federal funding
Federal Actions Subject to Consultation (“What?”)
Many Tribes and other Indigenous entities have asked agencies to consult on federal actions
potentially affecting natural resources. In particular, Tribes with reserved treaty rights may desire
to be consulted even when they are not located close to the site of the federal action.106 Through
treaties with the United States, Tribes often ceded lands in exchange for the right to conduct
certain activities, like hunting and fishing, on those lands. Tribes may seek access to federal lands
or input into federal land management decisions because of the large amount of land currently
owned by the federal government that once was tribal land.107 For example, some Tribes and
other Indigenous entities have sought to influence federal policies on mining to protect natural
and cultural resources.108 Some Tribes may seek to influence federal actions in the ocean, such as
Governments,” 2023, at https://www.noaa.gov/sites/default/files/2023-07/NOAA_Tribal_Consultation_Handbook_
2023_FINAL.pdf (hereinafter, “NOAA Procedures”); and NOAA, “NOAA Guidance and Best Practices for Engaging
and Incorporating Indigenous Knowledge in Decision-Making,” 2023, at https://www.noaa.gov/sites/default/files/202307/NOAA_IK_Guidance_FINAL_2023_1.pdf (hereinafter “NOAA Guidance”).
103 NAO 218-8A, §5.
104 “NOAA Procedures,” p. 7.
105 “NOAA Guidance,” p. 1.
106 Letter from Fawn Sharp, President, National Congress of American Indians (NCAI), to Shalanda Young, President,
Office of Management and Budget (OMB), April 9, 2021, p. 23. Available to congressional clients from the authors on
request.
107 White House, “Best Practices Guide,” p. 12. Tribes and other Indigenous entities’ interest in a more robust, longterm, and formal role in managing federal lands to which they have a connection is sometimes referred to as federaltribal co-management or co-stewardship. For more information, see CRS Report R47563, Tribal Co-management of
Federal Lands: Overview and Selected Issues for Congress, by Mariel J. Murray.
108 See, e.g., Chilkat Indian Village et al., “Notice of Petition and Petition for Rulemaking: Bringing Hardrock Mining
(continued...)
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offshore wind development. For example, the Yurok Tribe has reportedly claimed that the ocean
is “unceded territory” and that “they remain stewards of their coastal waters.”109 Yurok tribal
leaders claim that the federal processes for wind farm activity have failed to include their input.110
Some Tribes and other Indigenous entities have asked for input in internal agency processes.111
For example, Tribes have stated that they should be consulted throughout the federal budget
formulation and execution processes “to ensure tribal funding priorities and needs are met.”112 In
2022, the Government Accountability Office (GAO) recommended that certain agencies,
including OMB and USDA, establish processes to incorporate “meaningful and timely input from
tribal officials” when formulating federal budget requests.”113
The National Congress of American Indians (NCAI) has asserted that Tribes should be able to
request consultation on any federal action of relevance to them. Specifically, NCAI requested that
OMB, which oversees federal agency management, establish a mechanism requiring agencies to
consult with Tribes and other Indigenous entities upon their request.114 While some agencies
allow for Tribes and other Indigenous entities to request consultation, this practice is not uniform
across the government.
In addition, Tribes and other Indigenous entities may seek federal-tribal consultation on
infrastructure projects where the federal government plays a role, as discussed in the text box
below.
Federal-Tribal Consultation on Infrastructure Projects
Infrastructure projects represent a wide array of development activities. Some infrastructure projects may be
performed by federal agencies (e.g., USACE plans and constructs congressionally authorized projects). Many
infrastructure projects are undertaken by nonfederal public and private entities, such as highway projects,
municipal water systems, and oil and gas pipelines. Multiple federal agencies may have jurisdiction over portions of
these nonfederal projects under various statutes or through federal funding. For both federal and nonfederal
infrastructure projects, federal-tribal consultation may be required as part of federal review and decisionmaking
(e.g., permitting). The following are some examples of federal-tribal consultation topics related to infrastructure
projects.
•
NEPA compliance. Through an agreement with the lead federal agency, a Tribe can become a cooperating
agency, which includes opportunities for participation in the lead agency’s NEPA process. Some Tribes have
become cooperating agencies as part of NEPA compliance performed in connection with federal permits and
approvals for infrastructure projects. While such participation may allow opportunities for Tribes to provide
expertise on traditional lifeways (e.g., trapping, fishing, gathering foods and times, and traditional uses of a
variety of natural resources) and cultural resources, tribal participation as a cooperating agency requires the
expenditure of tribal resources and may not extend to the consideration of other tribal concerns about a
specific project.
Regulations and Policy into the 21st Century to Protect Indigenous and Public Lands Resources in the West,”
September 16, 2021, p. 2, at https://earthworks.org/assets/uploads/2021/09/APA-DOI-Hardrock-Mining-RulesPetition-Combined-1.pdf.
109 Chez Oxendine, “Native Leaders at Yurok Summit Demand a Seat at the Table for Offshore Wind Projects,” Tribal
Business News, February 3, 2024.
110 Ibid.
111 OMB, “Office of Management and Budget Tribal Consultation Plan of Actions,” April 26, 2021, p. 4, at
https://www.whitehouse.gov/wp-content/uploads/2021/07/OMB-Tribal-Consultation-Plan-of-Actions.pdf.
112 Ibid.
113 GAO, Tribal Funding: Actions Needed to Improve Information on Federal Funds That Benefit Native Americans,
22-104602, 2022, p. 38, at https://www.gao.gov/assets/gao-22-104602.pdf (GAO, “Federal Funds”).
114 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 7. Available to
congressional clients from the authors on request.
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•
FAST-41 projects. Title 41 of the FAST Act (FAST-41; 42 U.S.C. §§4370m et seq.) created a set of
procedures and funding authorities to improve the federal environmental review and authorization process
for certain “covered” infrastructure projects (e.g., projects over $200 million). Under the act, covered
projects are required to develop multiagency project plans with timetables for environmental reviews and
authorizations, and schedules for public and tribal outreach and coordination. The act also requires the
Federal Permitting Improvement Steering Council to meet at least annually with Tribes and other
stakeholders. This federal-tribal consultation requirement is separate from consultations that may be
required under other laws, such as NHPA. Some Tribes have suggested establishing a framework for regular
engagement under the law.
•
Delegation of federal programs to states. Some Tribes have raised concerns that federal agency
delegation of some programs for state administration (e.g., certain Clean Water Act programs) may reduce
opportunities for tribal input regarding potential impacts to off-reservation rights, particularly where state law
does not require tribal consultation.
Sources: See generally 40 C.F.R. §1501. See also Department of the Interior, “Improving Tribal Consultation and
Tribal Involvement in Federal Infrastructure Decisions,” January 2017, at https://www.doi.gov/sites/doi.gov/files/
report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See also GAO, Tribal Consultation:
Additional Federal Actions Needed for Infrastructure Projects, GAO-19-22, March 2019, at https://www.gao.gov/
assets/gao-19-22.pdf. See also ACHP, “Improving Tribal Consultation in Infrastructure Projects,” May 14, 2017, p.
4, at https://www.achp.gov/sites/default/files/reports/2018-11/ImprovingTribalConsultationinInfrastructureProjects
FinalApril272017_0.pdf.
Clarity of Federal-Tribal Consultation Requirements
Various industry stakeholders, tribal associations, and scholars have advocated for clearer federal
consultation standards. Some industry stakeholders have stated that “transparent, inclusive, and
predictable” federal agency guidance would be helpful regarding which projects and activities are
subject to consultation and how consultation should be conducted.115 Some tribal associations and
scholars, as well as some Members of Congress, also have asserted that agency consultation
practices not expressly directed by statute have been unenforceable and inconsistent.116 Therefore,
some tribal associations and scholars have asked for a statutory federal consultation standard to
ensure that agencies are held accountable for “uniform, effective, and meaningful” federal-tribal
consultation.117
On the other hand, certain agencies have resisted formalizing or expanding federal-tribal
consultation procedures for various reasons. They may assert that they are already complying
with legal requirements and are not required to consult. For example, independent regulatory
agencies such as the Federal Communications Commission (FCC), Federal Energy Regulatory
Commission, and Nuclear Regulatory Commission are not subject to E.O. 13175’s consultation
115 See Enbridge, “Enbridge Submission Docket ID No. COE-2022-0006_02.08.2022” p. 2, at
https://www.regulations.gov/comment/COE-2022-0006-0097; see also Interstate Natural Gas Association of America
and American Gas Association, “INGAA AGA Comments on Corps Notice,” p. 4, at https://www.regulations.gov/
comment/COE-2022-0006-0088.
116 See Statement of NCAI, H.R. 5608 hearing, p. 86; Statement of Joe Shirley, President, Navajo Nation, H.R. 5608
hearing, pp. 23-25. See also Hearing Memo, Legislative Hearing on H.R. 2930, H.R. 438, and RESPECT Act, 117th
Cong., 1st sess., May 20, 2021, p. 6, at https://naturalresources.house.gov/uploadedfiles/hearing_memo_2021-0520_ip_legislative_hearing.pdf (“It is difficult to assess the adequacy of federal agency consultation with a Tribe.”).
117 NCAI, “Resolution #MOH-17-001: A Call on Congress to Enact Legislation That Will Ensure Uniform, Effective
and Meaningful Consultation with Indian Nations and Tribes Whenever Federal Activities Have Tribal Impacts,” p. 2,
at https://ncai.assetbank-server.com/assetbank-ncai/action/viewAsset?id=619. See Mills & Nie, “Bridges,” pp. 57, 89,
and 94. See also White House, “Best Practices Guide,” p. 11; Routel & Holth, “Genuine Consultation,” p. 466; and
Letter from United South and Eastern Tribes Sovereignty Protection Fund to Raul Grijalva, Chairman of the House
Natural Resources Committee, March 11, 2022, pp. 2, at https://www.usetinc.org/wp-content/uploads/2022/04/USETSPF-Comments-RESPECT-Act-FINAL-3_11_22_-002.pdf (hereinafter USET, “Letter”).
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requirements.118 Similarly the Department of Transportation has stated that, unlike the Indian
Health Service and BIA, it is not mandated to consult under ISDEAA (25 U.S.C. §5325(i)).119 In
addition, some agencies have stated that consultation on certain issues is unnecessary or
impractical.120
Judicial Enforceability of Federal-Tribal Consultation
Congress has not imposed a comprehensive responsibility for tribal consultations applicable to all
federal actions, complicating the question of whether existing consultation directives are
judicially enforceable. In this context, judicial enforceability refers to the question of whether
courts will issue decisions holding agencies accountable to consult with Tribes, such as by
prohibiting agencies from taking certain actions until consultation has occurred. The current
landscape of federal-tribal consultation is marked by impressive variability, making it challenging
to arrive at universal, practical conclusions. The variability is manifold: enforcement actions may
be brought by an array of interested parties, including Tribes and tribal members, against a
number of agencies operating under an even greater number of statutes, policies, and regulations,
in innumerable factual and highly specific scenarios.121 Perhaps at least in part due to this
variability, the evaluation of federal-tribal consultation has seemingly resisted the development of
seminal definitions and tests or the widespread adoption of substantive criteria for successful
consultation. Some legal scholars argue that although agency policies often “refer to ‘meaningful’
communication and dialogue” with Tribes, they are “unclear about what consultation processes
specifically require,” so “consultation remains vague and [practically] unenforceable.”122 Despite
the aforementioned variability affecting an assessment of judicial enforceability, the discussion
below offers a few principles that may usefully frame current judicial treatment of Tribes’
attempts to enforce consultation requirements.
First, tribal consultation policies imposed solely by executive orders and presidential memoranda
may not provide an independent basis for judicial enforcement. Executive orders intended
“primarily as a managerial tool for implementing” the president’s personal policies and that
disclaim the creation of any new rights or obligations do not carry the force of law and are
generally not enforceable in court.123 By contrast, executive orders that are grounded in powers
granted directly to the president by the Constitution or by statute do carry the force of law and can
be enforced by the courts.124 Presidential documents related to federal-tribal consultation (such as
the executive orders and memoranda discussed above) generally fall into the first category of
executive orders that announce the Administration’s policies.125 These presidential documents
typically cite the federal trust responsibility and the holistic body of federal Indian law—rather
118 E.O. 13175 §1(c).
119 GAO, “Federal Funds,” p. 49.
120 See, e.g., Statement of James Cason, Associate Deputy Secretary, DOI, in H.R. 5608 hearing, pp. 5-6, and Statement
of Philip N. Hogen, Chairman, National Indian Gaming Commission (NIGC), in H.R. 5608 hearing, p. 11.
121 As two scholars recently wrote, “[w]hile federal directives have recognized the importance of tribal consultation,
agency implementation has not been consistent, with noted problems related to specificity, enforceability, and
uniformity.” Kristin Green and Teresa Cavazos Cohn, “Meaningful Tribal Consultation as Part of National Forest
Planning,” Idaho Law Review, vol. 59 (2023), pp. 105, 107 (citing Routel & Holth, “Genuine Consultation,” pp. 417,
448) (hereinafter Green & Cohn, “Meaningful Tribal Consultation”).
122 Green & Cohn, “Meaningful Tribal Consultation,” p. 108.
123 In re Surface Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C. Cir. 1980).
124 Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995); HHS v. FLRA, 844 F.2d 1087, 1095-96 (4th Cir.
1987) (en banc). For more information on the legal enforceability of executive orders, see CRS Report R46738,
Executive Orders: An Introduction, coordinated by Abigail A. Graber.
125 See Northern Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1281 (D. Wyo. 2015).
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than specific statutory authority—as underlying the directives for federal-tribal consultation.126
This reliance on the federal trust responsibility is then reflected in many of the consultation
regulations enacted by executive agencies through regulation or internal policy documents.127
As described in more detail above, the presidential documents also explicitly disclaim the
creation of any new, legally enforceable rights.128 Some courts have thus declined to rule that
Tribes can seek judicial enforcement of the tribal rights to consultation contained in these
executive orders and presidential memoranda.129 As one court put it, “the plain language of
Executive Order 13175 does not provide any right enforceable in this judicial action alleged by
the Tribe.”130
Second, when courts do assess the sufficiency of tribal consultation, their approach generally
reflects an understanding of consultation as communication-based, not consensus- or consentbased. In practice, this often means that courts may (1) focus on procedural aspects of
consultation rather than substantive ones and (2) defer to agencies’ interpretations of their
consultative responsibilities. For example, in one case, a court determined that the FCC had met
its consulting obligations despite a Tribe’s complaints that the agency simply conducted listening
sessions, briefings, and conference calls and delivered remarks.131 The court criticized the Tribe
for offering “no standard by which to judge ... whether a ‘listening session’ or a conference call
qualifies as a consultation” and concluded that the agency’s actions satisfied both the agency’s
and the dictionary’s definition of consultation.132
An agency’s compliance (or lack thereof) with its own regulations or guidance, therefore, may
provide a basis for judicial enforcement.133 Examples of Tribes successfully raising challenges to
agency consultation often involve failures that courts may perceive as fundamental, such as
finalizing decisions beforehand, concealing important information, or failing to consult with
particular Tribes altogether. In one case, a court found that an agency had insufficiently consulted
with a Tribe after an agency leader acknowledged at trial that the agency had already made its
decision before consulting.134 In another, the court found that although the BIA had held “three
rounds of consultation meetings” about a proposed restructuring, it failed to give Tribes notice
126 See, e.g., E.O. 13175 (describing the United States’ “unique legal relationship with Indian tribal governments as set
forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions” and noting that
“[s]ince the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under
its protection”—i.e., the United States has recognized a trust responsibility).
127 See, e.g., Federal Transit Administration, Tribal Consultation, at https://www.transit.dot.gov/regulations-andguidance/environmental-programs/tribal-consultation (explaining that “[t]he need and responsibility for Federal Transit
Administration to consult with Indian Tribes is based on the Federal trust relationship”).
128 See, e.g., E.O. 13084 (explaining that the order “does not … create any right, benefit, or trust responsibility,
substantive or procedural, enforceable at law or equity by a party against the United States”).
129 See., e.g., Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995) (“Executive orders without
specific foundation in congressional action are not judicially enforceable in private civil suits. … As argued by both the
tribe and the BIA, this executive memorandum was intended primarily as a political tool for implementing the
President’s personal Indian affairs policy and not as a legal framework enforceable by private civil action.”).
130 Northern Arapaho Tribe, 118 F. Supp. 3d at 1281.
131 United Keetoowah Band of Cherokee Indians in Oklahoma v. Fed. Commc’ns Comm’n, 933 F.3d 728, 750 (D.C.
Cir. 2019).
132 Ibid.
133
For more information about guidance documents, see CRS Legal Sidebar LSB10591, Agency Use of Guidance
Documents, by Kate R. Bowers.
134 Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 710 (8th Cir. 1979).
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that the restructuring “could result in the loss of funding to Indian schools.”135 That omission, said
the court, was “not the meaningful consultation required by BIA policy” because “[f]air notice of
agency intentions requires telling the truth and keeping promises.”136 In a third case, the Bureau
of Land Management (BLM) provided aggregated evidence of its consultation with Tribes,
agencies, and the public but was unable to detail its consultative efforts with the Tribe seeking
judicial enforcement.137 As the court explained, the fact “that BLM did a lot of consulting in
general doesn’t show that its consultation with the Tribe was adequate under the regulations.”138
Perhaps because these examples of successful challenges to insufficient agency consultation
represent somewhat glaring agency failures, a perception may persist that consultation is rarely
judicially enforceable. In the context of protecting cultural resources and sacred spaces, two legal
scholars wrote that “with few exceptions, tribes were unsuccessful in using the law and its
consultation procedures as a stand-alone way to protect sacred sites and traditional cultural
properties.”139
Some Tribes may be most interested in judicial enforcement to guarantee tribal input before
agency actions (rather than suing the agency for corrective steps afterward); this may lead them to
seek preliminary injunctions to halt the relevant federal action from going forward while the court
determines whether the agency engaged in meaningful consultation. Courts have explained that
preliminary injunctions are “an extraordinary remedy” appropriate only in narrow circumstances
that are often difficult to meet.140 One such court denied an attempt to stop construction based on
claims that the government had inadequately consulted Tribes about potential damage to Native
American graves.141 In a related case, an appeals court noted, “In casting [the Department of
Homeland Security’s] consultation as too narrow,” plaintiffs failed to show “that its scope
violated a specific prohibition in the statute that is clear and mandatory,” “was obviously beyond
the terms of the statute,” or was “far outside the scope of the task that Congress gave it”—at least
one of which was necessary for the court to invalidate what the agency had done.142 The high
procedural hurdles of preliminary injunctions may contribute to observations that consultation
requirements are challenging to enforce, even when courts may be sympathetic to a Tribe’s
claims.143
On the whole, courts generally seem to have avoided grappling with more substantive questions
like how best to quantify or qualify consultation, the comparative values of different kinds of
135 Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 784 (D.S.D. 2006) (emphasizing that “[b]oth Congress
and the BIA have articulated a policy that mandates consultation between the BIA and the tribes in all matters affecting
education” and issuing a preliminary injunction to block the planned agency action).
136 Ibid., p. 785 (citing Lower Brule Sioux Tribe, 911 F. Supp. at 399).
137 Quechan Tribe of the Fort Yuma Indian Reserv. v. Dep’t of Interior, 755 F. Supp. 2d 1104, 1112 (S.D. Cal. 2010).
138 Ibid. (“Indeed, Defendants’ grouping tribes together (referring to consultation with ‘tribes’) is unhelpful: Indian
tribes aren’t interchangeable, and consultation with one tribe doesn’t relieve the BLM of its obligation to consult with
any other tribe that may be a consulting party under NHPA.”).
139
Mills & Nie, “Bridges.”
140 Manzanita Band of the Kumeyaay Nation v. Wolf, 496 F. Supp. 3d 257, 260 (D.D.C. 2020).
141 Ibid., pp. 268-269.
142 N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1262 (D.C. Cir. 2020) (discussing a nontribal nonprofit’s challenge
to allegedly insufficient consultation with stakeholders regarding the construction of barriers and related infrastructure
along the U.S.-Mexico border).
143 See, e.g., Bartell Ranch LLC v. McCullough, 558 F. Supp. 3d 974, 991 (D. Nev. 2021) (“[W]hile the Court finds the
Tribes’ arguments regarding the spiritual distress that the [federal action] will cause persuasive, the Court must
nonetheless reluctantly conclude that they have not shown sufficiently specific irreparable harm that aligns with the
relief they could ultimately obtain in this case.”).
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consultation, or whether there are circumstances in which consultation must result in a change
from the proposed agency action. This perhaps reflects a sense that these determinations, if they
are made at all, should be legislative rather than judicial. Questions of how consultation can best
be measured, and by whom, may invite further consideration by lawmakers and interested parties;
in particular, weighing the pros and cons of a single, unified statutory standard for federal-tribal
consultation may be ripe for consideration by Congress.
Similarly, which federal actions could or should be subject to tribal consultation is a perennial
topic for congressional consideration. Congress does not currently require across-the-board
consultation for all federal actions that may affect tribal interests, which may reflect a balancing
of competing interests. For example, some members of Congress have opposed bills that would
broaden consultation requirements, stating that new requirements would make the federal-tribal
consultation process “lengthy and unrealistic.”144 Furthermore, some Members of Congress have
stated that expanded federal-tribal consultation requirements could hinder “needed economic
development and critical infrastructure development for Tribes.”145
With these types of concerns in mind, Congress may choose to maintain the current statutory
framework, which requires consultation only for specific federal actions. As described in
“Statutory Consultation Requirements,” some statutes or their implementing regulations may
mandate tribal consultation when federal actions may affect tribal historic, cultural, or religious
sites.146 Beyond that, Congress has, at times, required federal-tribal consultation for actions by
federal land management agencies. For example, some laws have required federal-tribal
consultation in the establishment of national monuments, and proposed legislation would impose
tribal consultation requirements for the development of federal land management plans.147
Congress could also choose to remove or limit consultation requirements on particular topics or to
refrain from imposing additional consultative burdens in future legislation.
Another option would be to expand consultation requirements to additional categories or types of
federal actions, such as internal agency processes. For instance, bills were introduced in the 117th
and 118th Congresses that would have required agencies such as OMB and USDA to consult with
144
See Statement of Rep. Paul Gosar, U.S. Congress, House Natural Resources Committee, “Legislative Hearing on
H.R. 312, ‘Mashpee Wampanoag Tribe Reservation Reaffirmation Act’; H.R. 375, to Amend the Act of June 18, 1934,
to Reaffirm the Authority of the Secretary of the Interior to Take Land into Trust for Indian Tribes, and for Other
Purposes; and Discussion Draft of H.R. _, ‘RESPECT Act,’” 116th Cong., 1st sess., April 3, 2019, H.Hrg. 35-971
(Washington: GPO, 2019), p. 49 (hereinafter “2019 RESPECT Act hearing”).
145 See Statement of Rep. Bruce Westerman, Ranking Member, “Respect Act hearing,” p. 7, at
https://docs.house.gov/meetings/II/II24/20210520/112660/HHRG-117-II24-MState-W000821-20210520.pdf (“While I
strongly believe that federal agencies should conduct proper Tribal consultation, and projects should include tribal
voices, this bill would be extremely harmful by significantly slowing down agency actions, which could hinder needed
economic development and critical infrastructure development for Tribes.”).
146 See, e.g., Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) (under the American Indian Religious Freedom Act
of 1978, the federal government should “ordinarily” consult with tribal leaders before approving a project “likely to
affect religious practices”); Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep’t of the Interior, 755 F.
Supp. 2d 1104, 1109 (S.D. Cal. 2010) (Under NFPA regulations at 36 C.F.R. §800.2, “consulting parties that are Indian
Tribes are entitled to special consideration in the course of an agency’s fulfillment of its consultation obligations”)
(emphasis in original).
147
For example, Congress mandated that the Secretary of the Interior consult with the Minnesota Chippewa Tribe and
the Grand Portage Band of Chippewa Indians, Minnesota, in the planning of facilities or developments upon the lands
adjacent to the Grand Portage National Monument (P.L. 85-910). See also H.R. 5243, Northern Nevada Economic
Development, Conservation, and Military Modernization Act of 2021 (117th Cong.); H.R. 7665, REC Act of 2022
(117th Cong.); and H.R. 6148/S. 3186, Advancing Tribal Parity on Public Lands Act (118th Cong.).
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Tribes on budget formulation.148 Similarly, Congress has, at times, proposed and required
agencies to engage in tribal consultations and negotiated rulemaking to ensure tribal input on
specific initiatives.149 In addition, Congress could consider whether, or to what extent or in what
contexts, its policy goals would align with broadening, maintaining, or restricting a Tribe or other
Indigenous entity’s ability to prevent or delay agency actions. Other options might include
considering the comparative values of different types of federal-tribal consultation, including less
ad hoc forms such as working groups and advisory committees comprising tribal members.
Finally, Congress could consider broadly expanding consultation requirements to most or all
federal actions affecting Tribes. Members of Congress have introduced bills setting consultation
standards that would potentially expand the number and types of activities requiring
consultation.150 Some of these bills would have expanded the list of activities to include agency
guidance, clarification, standards, or sets of principles. For example, the RESPECT Act, H.R.
3587 from the 117th Congress, would have required federal-tribal consultation before an agency
conducted “any proposed Federal activity or finaliz[ed] any Federal regulatory action that may
have Tribal impacts.”151 For a summary of selected consultation legislation, see the Appendix.
Representation of the Parties (“Who?”)
Federal agencies, Tribes, and other Indigenous entities have debated about who should participate
in federal-tribal consultations.152 One issue is the authority of the federal representative. In
addition, concerns have been raised about whether only Tribes may engage in federal-tribal
consultation or whether other Indigenous entities may also engage.
Participation of Federal Agencies
Who should represent the federal government during consultations is a source of debate.153 Tribes
generally advocate for high-level officials with decisionmaking authority to participate in federaltribal consultations to ensure that the federal representative is authorized or able to answer
questions.154 When the federal representative cannot make decisions or answer questions, Tribes
and other Indigenous entities may have a one-sided dialogue, which they may not consider
“meaningful” consultation.155
148 See S. 5186 from the 117th Cong., which directed OMB to develop a tribal consultation policy. See also H.R. 5113
and S. 3270 from the 118th Cong., which both proposed requiring federal-tribal consultation during the budget
formulation process at the USDA.
149 For example, the PROGRESS for Indian Tribes Act (P.L. 116-180) required the DOI to implement the act by setting
up a negotiated rulemaking committee with tribal members. In addition, H.R. 4386 and S. 981 in the 117th Cong.
proposed establishing requirements for tribal consultation prior to the sale or transfer of certain federal civilian real
property.
150 See, e.g., H.R. 5608 from the 110th Cong.; H.R. 5023 from the 111th Cong.; H.R. 1600 from the 113th Cong.; H.R.
5379 from the 114th Cong.; and the RESPECT Act, H.R. 3587 from the 117th Cong. H.R. 5608 from the 110th Cong.
would have required DOI, the Indian Health Service, and NIGC to conduct federal-tribal consultation for “any measure
by the agency that has or is likely to have a direct effect on one or more Tribes.”
151 H.R. 3587.
152 See, e.g., ACHP, “Improving Tribal Consultation in Infrastructure Projects,” May 14, 2017, p. 4, at https://www.
achp.gov/sites/default/files/reports/2018-11/ImprovingTribalConsultationinInfrastructureProjectsFinalApril
272017_0.pdf.
153 Ibid.
154 See Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP,
hereinafter “2019 RESPECT Act hearing,” p. 53.
155 Ibid.
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On the other hand, agencies may find it impractical to consistently have a decisionmaker
participate in federal-tribal consultations. First, agency leaders may have competing demands on
their time, which may result in the agency staggering consultations to accommodate their
schedules. In addition, depending on the federal action, agency staff may be more knowledgeable
than the federal leader or decisionmaker.
Congress may consider whether to designate parties to federal-tribal consultations. For example,
it could limit federal-tribal consultation to officials with decisionmaking authority. During the
Biden Administration, some agencies have committed to this practice, although Congress could
consider whether to mandate this practice government-wide.156 If so, Congress may need to
define “decisionmaking authority”; for example, whether decisionmakers would include federal
employees at or above a certain grade level.
Participation of Tribes and Other Indigenous Entities
Which Tribes or other Indigenous entities should be eligible to participate in federal-tribal
consultations is another issue. Some Tribes and tribal groups have argued that their status as
sovereign nations gives them exclusive access to federal-tribal consultation.157 In other words,
they assert that the United States has only a government-to-government relationship with Tribes,
including a duty to uphold the federal trust responsibility.158 Furthermore, they claim that the
participation of other Indigenous entities such as ANCs “undermines the government-togovernment relationship between Tribal Nations and the United States.”159 Therefore, certain
Tribes have argued against the participation of other Indigenous entities in federal consultation.160
On the other hand, some other Indigenous entities assert that they should have opportunities to
consult alongside Tribes.161 Still other Indigenous entities assert that they should be treated like
Tribes because they are Native Americans. For example, some Native Hawaiians have asked for
“funding and programming equity for all Native Americans, including American Indians, Alaska
Natives, and Native Hawaiians.”162 In addition, other Indigenous entities have argued that they
have a right to consult based on statute rather than a historic government-to-government
relationship. For example, ANCs have argued that Congress has recognized them, thereby
providing them with a statutory right to consultation.163
Members of Congress may continue to consider whether to be more inclusive in consultation
requirements (all Tribes and other Indigenous entities) or less inclusive (only Tribes). Congress
156 For example, DOI’s 2022 policy defined federal-tribal consultation as having both department and tribal officials
with decisionmaking authorities present at the session (DOI, “Consultation DM,” p. 2). In addition, the 2023 USACE
Tribal Consultation Policy’s definition of consultation states that it involves “USACE and Tribal officials with
decision-making authority.”
157 See, e.g., USET, “Letter,” pp. 2-3.
158 Yellen v. Chehalis, 594 U.S. ___ (2021), Brief for Respondents Confederated Tribes of the Chehalis Reservation, et
al., March 24, 2021, p. 45, at https://sct.narf.org/documents/alaska_native_corp_v_chehalis/brief_respondent.pdf.
159 USET, “Letter,” p. 2-3.
160 Ibid.
161 Letter from Kim Reitimeier, President, Alaska Regional Association, to Executive Office of the President, February
22, 2022, p. 2 (hereinafter Reitimeier, “Letter”). Available to congressional clients from the authors on request.
162 Prepared Statement of Hon. Carmen “Hulu” Lindsey, Chair, Board of Trustees, Office of Hawaiian Affairs, U.S.
Congress, Senate Indian Affairs, Upholding the Federal Trust Responsibility: Funding and Program Access for
Innovation for Native Hawaiians—Part 1 and 2, 117th Cong., 2nd sess., June 2022, S.Hrg. 117-318 (Washington: GPO,
2022), p. 4.
163 Reitimeier, “Letter,” p. 2.
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has, at times, encouraged or required federal-tribal consultation with other Indigenous entities
such as ANCs.164 For example, the Consolidated Appropriations Act, 2004, as amended, required
federal agencies to consult with ANCs on the same basis as Tribes under E.O. 13175.165 In
addition, NHPA authorizes consultation with NHOs.166 In other instances, bills introduced would
have limited consultation to Tribes, although none have been enacted into law.167 Several agency
policies explicitly provide for consultation with Tribes, ANCs, and NHOs, and Congress may
consider whether consistency across the federal government would be appropriate (see discussion
of agency policies in “Federal Agency Policies”).
Timing of consultation (“When?”)
Some Tribes, other Indigenous entities, and scholars have raised concerns about the timeliness of
federal-tribal consultation and the adequacy of opportunities to provide input.168 Many Tribes and
other Indigenous entities have asserted that early and consistent agency engagement is essential
for meaningful federal-tribal consultation.169 For example, they have asked federal agencies to
provide them with sufficient information about a proposed federal action early in the process to
determine whether, and to what degree, their interests may be affected.170 Furthermore, some have
argued that federal consultation policies should provide multiple communication opportunities
during the course of a project or policy development process.171
Some stakeholders, including Members of Congress, have expressed concern that timing
requirements related to federal-tribal consultation could delay federal actions.172 For example,
delays could result if an agency must consult with Tribes at several points in its decisionmaking
process or wait for responses. For this reason, some industry stakeholders have asked agencies to
include “reasonable time limits” for tribal consultation.173 In addition, a Tribe’s need for time to
evaluate proposed federal actions may conflict with pressure for the federal agency to move
expediently through review and permitting processes.174 Some Members of Congress have
expressed concerns that broad consultation requirements would cause “catastrophic” harm to
164 For example, the ANCSA (43 U.S.C. §§1601 et seq.) highlighted the need to provide for “the real economic and
social needs of Natives … with maximum participation by Natives in decisions affecting their rights and property.”
165 P.L. 108-199, Div. H, §161, (2004), as amended.
166 54 U.S.C. §302706(b).
167
See, e.g., H.R. 5608 from the 110th Cong.
168 For a detailed discussion of tribal comments about the timing of federal-tribal consultation, see DOI, “Improving
Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions,” January 2017, p. 17, at
https://www.doi.gov/sites/doi.gov/files/report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See
also Statement of Brian D. Vallo, Governor, Pueblo of Acoma, Legislative Hearing on H.R. 2930, H.R. 438, and
RESPECT Act, 117th Cong., 1st sess., May 20, 2021.
169 See, e.g., DOI, “Infrastructure Report,” p. 17.
170 Ibid.
171 NCAI, “Call to Congress.”
172 See Statement of Kevin Washburn, Professor of Law, University of Iowa College of Law,
Iowa City, Iowa, “2019 RESPECT Act hearing,” p. 22.
173 Interstate Natural Gas Association of America and American Gas Association, “INGAA AGA Comments on Corps
Notice,” p. 2, at https://www.regulations.gov/comment/COE-2022-0006-0088.
174 Interagency Working Group on Mining Laws, Regulations, and Permitting, Recommendations to Improve Mining on
Public Lands, September 2023, p. 74, at https://www.doi.gov/sites/doi.gov/files/mriwg-report-final-508.pdf (hereinafter
Interagency Working Group, “Mining Recommendations”).
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local communities by increasing permitting times, which would negatively impact activities such
as grazing and energy production.175
Federal regulations sometimes include timing guidance for federal-tribal consultation, and bills
have been introduced that would set timing standards. For example, NHPA regulations require
that federal-tribal consultations “commence early in the planning process.”176 Since the 116th
Congress, some introduced bills would require agencies to consult with Tribes before issuing
permits or within a certain period after issuing permits.177 Some bills also have included multiple
mandatory time frames during the proposed consultation process to allow Tribes and other
Indigenous entities time to respond to agency outreach.178
Agency Consideration of Input Provided by Tribes and Other
Indigenous Entities (“How?”)
How agencies consider input provided by Tribes and other Indigenous entities in decisionmaking
is another issue. Federal agencies have varying methods for communicating with Tribes and other
Indigenous entities during federal-tribal consultations. Historically, some agencies considered
their federal-tribal consultation obligations met through one-way communication, as outlined in
“Communication.” Some tribal advocates have criticized this approach, because it does not allow
for their input, and a central consultation objective for Tribes is to provide federal decisionmakers
with information to support decisions that protect tribal interests.179 Tribal advocates have stated
that one-way communication treats Tribes as members of the public and therefore as “entitled to
only limited information and the ability to submit comments.”180 Instead, they argue, Tribes are
sovereign nations whose concerns should be considered separately from the public’s.181 Finally,
some Tribes and other Indigenous entities have asked agencies to communicate with them after
consultations regarding how their input was incorporated into agency decisions.182
In addition, Tribes and other Indigenous entities often advocate that agencies should not only
communicate but also strive to reach consensus or secure FPIC.183 If proposed federal action may
impact areas of cultural or economic importance, especially treaty-protected rights to those areas,
many Tribes and other Indigenous entities have asserted that FPIC should be required.184 For
example, some Tribes with treaty rights have asked federal agencies to stop actions until “a
175 Statement of Rep. Paul Gosar, “2019 RESPECT Act hearing,” p. 49.
176 36 C.F.R. §800.2(c)(2)(ii)(A).
177 See, e.g., H.R. 2532 from the 116th Cong. and H.R. 3307 from the 118th Cong.
178 See, e.g., H.R. 3587, RESPECT Act, Title II, from the 117th Cong.
179 Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, “2019
RESPECT Act hearing,” p. 53.
180 Ibid.
181 Ibid., p. 54.
182 DOI, “Framing Paper: Improving Interior’s Consultation with Tribes: Development of the U.S. Department of the
Interior’s Plan for Improving Implementation of EO 13175, Consultation and Coordination with Indian Tribal
Governments,” p. 2, at https://www.doi.gov/sites/doi.gov/files/framing-paper-consultation-with-Tribes.pdf (hereinafter
DOI, “Framing Paper”). See also DOI, “Infrastructure Report,” p. 18. GAO has reported that federal agencies
inconsistently communicate about final agency decisions; see GAO, Tribal Consultation: Additional Federal Actions
Needed for Infrastructure Projects, GAO-19-22, March 2019, pp. 21, 40-41, at https://www.gao.gov/products/gao-1922 (hereinafter GAO, “Tribal Consultation: Infrastructure”).
183 See, e.g., BIA, “DM Comments,” p. 5 (“Several Tribes agreed with the intent of the consensus-seeking model.”).
184 White House, “Best Practices Guide,” p. 12.
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consent-based process” that “respects and prioritizes treaty rights impacts” is developed.185
Others have asked agencies to use the principle of “mutual concurrence” to identify “traditional
and customary use areas” and design conservation measures.186 Some agencies have required
FPIC through regulations. For example, the NAGPRA regulations, which were updated in
December 2023, require museums and federal agencies to “obtain [FPIC] from lineal
descendants, Indian Tribes, or [NHOs] prior to allowing any exhibition of, access to, or research
on human remains or cultural items” (43 C.F.R. §10.1(d)).
At times, federal agencies have claimed that requiring tribal consensus or consent for agency
actions may conflict with their statutory missions or be impractical.187 Agencies have asserted that
an FPIC or a consensus requirement would potentially require agencies to violate their statutory
missions. For example, agencies have asserted that while they are often sympathetic to tribal
points of view, statutory or regulatory constraints sometimes require agencies to act against tribal
interests.188 Finally, agencies may oppose using an FPIC standard because if a proposed federal
action involves many Tribes and other Indigenous entities, it may take time to reach consensus,
which could delay federal action.189
In addition, non-tribal stakeholders may oppose granting Tribes a right of consensus or FPIC in
federal decisions. For example, states such as North Dakota have asserted that they should also
have their voices heard in federal-tribal discussions.190 In the context of water-related decisions,
North Dakota has expressed particular concern regarding federal decisions based on tribal treaty
rights, arguing that federal agencies are “not appropriate arbitrators” of those claims.191 In
addition, some stakeholders have argued that the preferences of nonfederal interests in USACE
water resource projects should “not unduly broaden the project scope or hinder consensusbuilding among key stakeholders,” especially when their preferences conflict with those of the
project’s nonfederal sponsor.192
Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal
input in federal decisionmaking. Congress has issued some direction to federal agencies on how
to consider input from Tribes and other Indigenous entities. For example, the report
accompanying the Department of the Interior, Environment, and Related Agencies Appropriations
Bill, 2023, H.R. 8262, stated that, “On decisions made in consultation with Tribes, the Committee
185 DOI, “Secretary’s Tribal Advisory Committee, Policy Recommendations,” August 2023, p. 56, at https://kawerak.
org/policy-recommendations-from-secretarys-tribal-advisory-committee-for-the-department-of-the-interior/.
186 Organized Village of Kasaan et al., “Petition for USDA Rulemaking to Create a Traditional Homelands
Conservation Rule for the Long-Term Management and Protection of Tradition and Customary Use Areas in the
Tongass National Forest,” July 17, 2020, p. 1, at https://www.alaskawild.org/wp-content/uploads/2020/07/FINALSoutheast-Tribes-APA-Petition-7-17-2020-Nine-Tribe-Signatures.pdf.
187 See, e.g., Statement of Philip N. Hogen, Chairman, NIGC, in H.R. 5608 hearing, p 12. See also Statement of James
Cason, Associate Deputy Secretary, DOI, H.R. 5608 hearing, p. 18-19.
188 See, e.g., USDA Office of Tribal Relations and USDA Forest Service, “Report to the Secretary of Agriculture:
USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites,” December 2012, pp. 9-10, at
https://www.fs.usda.gov/spf/tribalrelations/documents/sacredsites/SacredSitesFinalReportDec2012.pdf.
189 GAO, “Tribal Consultation-Infrastructure,” p. 30.
190 North Dakota Department or Water Resources, “Comment on FR Doc #2024-02448,” pp. 5-6, at
https://www.regulations.gov/comment/COE-2023-0005-0043.
191 Ibid.
192 National Waterways Conference, “Comment on FR Doc # 2024-02448,” pp. 27-28, at https://www.regulations.gov/
comment/COE-2023-0005-0048. USACE projects’ nonfederal sponsors are typically state, local, or tribal entities, or
nonprofits with the consent of the local government, that are responsible for sharing study and construction costs,
providing real estate interests, and performing operations and maintenance for many types of USACE water resource
projects.
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expects agencies funded in this bill to publish decision rationale in the context of and in
reasonable detail to the Tribal input received during consultation.”193 In addition, some
regulations encourage (though do not require) consensus with Tribes, Alaska Natives, and
NHOs.194
Another option would be to expand current law to require tribal FPIC for some or all federal
actions. While the federal government has so far declined to adopt a government-wide FPIC
standard, proposed legislation has referenced FPIC. During the 115th through the 117th
Congresses, proposed legislation addressing potential impacts to tribal land and resources of
Tribes would have required FPIC.195 For example, in the 117th Congress, S. 5186 supported the
FPIC principle, requiring agencies to obtain tribal consent in certain situations, such as to allow
unused electromagnetic spectrum over tribal lands to be made available to other parties.196 For a
summary of selected legislation with consent and consensus requirements, see the Appendix.
Confidentiality of Information Obtained Through Consultation
How to treat information shared during federal-tribal consultations also has been raised as an
issue. Some Tribes and other Indigenous entities are reluctant to share information during
consultations, especially about sacred sites.197 While Indigenous knowledge may be helpful in
identifying potential impacts of federal actions, Tribes and other Indigenous entities may want to
limit information sharing for various reasons. For example, they may want to prevent nonIndigenous people from accessing Indigenous sacred sites, or Indigenous religious, cultural, and
societal norms may restrict them from sharing.198 Some Tribes and other Indigenous entities have
raised concerns about the potential public release of agency maps depicting culturally sensitive or
religious sites.199
Some Tribes and other Indigenous entities have asked for statutory guidance to maintain the
confidentiality of information provided to agencies. For example, some Tribes and other
Indigenous entities have suggested amending the Freedom of Information Act (FOIA) to exempt
culturally sensitive information shared with agencies during consultation.200 Without an
exemption, FOIA (5 U.S.C. §552) provides the public a right to access federal agency
information.201
193 U.S. Congress, House Committee on Appropriations, Department of the Interior, Environment, and Related
Agencies Appropriations Bill, 2023, report to accompany H.R. 8262, 117th Cong., 2nd sess., July 1, 2022, H.Rept. 117400 (Washington: GPO, 2022), p. 10.
194 NHPA’s regulations define consultation as “the process of seeking, discussing, and considering the views of other
participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process”
(36 C.F.R. §800.16(f)).
195 See, e.g., H.R. 2689 in the 115th Cong., H.R. 2532 and S. 4331 in the 116th Cong., and H.R. 9439 and H.R. 3587 in
the 117th Cong.
196 S. 5186 in the 117th Cong.
197 See, e.g., DOI, “Infrastructure Report,” pp. 44, 58. See also Statement of Suzan Shown Harjo, President, Morning
Star Institute, U.S. Congress, Senate Committee on Indian Affairs, Native American Sacred Places, 108th Cong., 1st
sess., 2003, S.Hrg. 108-197 (Washington: GPO, 2003), pp. 8, 20, 54-55.
198 UCLA School of Law, Native Nations Law & Policy Center, “The Need for Confidentiality Within Tribal Cultural
Resource Protection,” December 2020, p. 6, at https://law.ucla.edu/sites/default/files/PDFs/Native_Nations/
239747_UCLA_Law_publications_Confidentiality_R2_042021.pdf (hereinafter UCLA, “Confidentiality”).
199 White House, “Best Practices Guide,” p. 12.
200 Ibid.
201 For more information about the Freedom of Information Act, see CRS In Focus IF11450, The Freedom of
Information Act (FOIA): An Introduction, by Benjamin M. Barczewski.
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At times, federal officials have expressed concern about their ability to consider tribal and other
Indigenous entity interests while maintaining confidentiality. For example, it may be difficult to
protect a site on federal lands that may be impacted by a federal action while maintaining the
confidentiality of information shared about the site.202 Sacred sites can be hard to define and
protect because they often lack clearly defined boundaries or a physical marker. Information
shared by Tribes and other Indigenous entities is, therefore, often essential for the agency to
identify areas for protection.203 Agencies may also be statutorily required to publicly share
information proactively or in response to FOIA requests.204
Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal
input in federal decisionmaking. Congress has considered and enacted legislation to address tribal
and other Indigenous entity interests in maintaining confidentiality in some cases. ARPA, NHPA,
and NAGPRA all have statutory or regulatory confidentiality provisions and give agencies
discretion in implementing these provisions.205 In addition, the STOP Act creates a FOIA
exemption for any information designated by a Tribe or an NHO as “sensitive or private
according to Native American custom, law, culture, or religion.”206 Similarly, the 2008 farm bill
(P.L. 110-234, 25 U.S.C. §3053) authorizes the Forest Service to withhold information from the
public relating to reburials, sites, human remains, or resources of traditional or cultural
importance, including information provided in the course of research. In addition, Members have
introduced legislation that would exempt information shared by Tribes or other Indigenous
entities from FOIA.207 Other bills have included provisions requiring agencies to protect
Indigenous knowledge if requested.208
Beyond the statutory status quo, Congress may also evaluate whether it would be appropriate to
codify existing agency practices or expand current statutory authorities to other agencies. For
example, the Forest Service authority, including best practices, could be expanded to other land
management agencies. In addition, the FCC maintains a system for confidentially managing
sensitive site information and for considering that information in facility-siting proposals.209
Administrative Capacity
Limited agency, tribal, and other Indigenous entity capacity are ongoing issues affecting federaltribal consultation. Consultation may be inaccessible to some Tribes and other Indigenous entities
202
Statement of William Bettenberg, Director, Office of Policy Analysis, DOI, U.S. Congress, Senate Committee on
Indian Affairs, Native American Sacred Places, 108th Cong., 1st sess., 2003, S.Hrg. 108-197 (Washington: GPO, 2003),
pp. 3-4.
203 Ibid.
204 5 U.S.C. §552(a) (proactive disclosure requirement), 5 U.S.C. §552(b) (requirements to disclosure records subject to
a request).
205 See ARPA (16 U.S.C. §§470hh) and NHPA (54 U.S.C. §307103). NAGPRA has confidentiality provisions in its
implementing regulations (43 C.F.R. Part 10.9). For a discussion of these laws and regulations, see UCLA,
“Confidentiality,” p. 9. Some agencies have committed to treating information received during federal-tribal
consultation as confidential if disclosure would negatively impact cultural or other sensitive resources. See., e.g., DOI,
“ANC Policy,” p. 2.
206 25 U.S.C. §3077.
207 See, e.g., RESPECT Act (H.R. 3587), §502, and the Safeguard Objects of Tribal Patrimony Act ( S. 1471), §9, from
the 117th Cong.
208 See H.R. 8108 and S. 4421 in the 117th Cong. and H.R. 6148 in the 118th Cong.
209 Interagency Working Group, “Mining Recommendations,” p. 8.
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due to limited personnel and expertise.210 Some Tribes, especially small or remote Tribes, may
have limited staff resources, which might hinder their ability to assess potential tribal impacts and
travel to consultation sessions.211 In addition, Tribes and other Indigenous entities may lack the
technical expertise to effectively consult on some federal actions. For example, they may not be
able to fully evaluate technical plans and environmental studies without additional assistance.212
The increasing volume of consultations also affects tribal capacity, leading some Tribes to declare
“consultation fatigue.”213 According to NCAI, a Tribe or other Indigenous entity’s ability to
consult diminishes when large numbers of consultation sessions are scheduled in a short time
span or when consultation sessions on different topics overlap.214 Some Tribes have asked for a
centralized federal-tribal consultation calendar to improve scheduling efficiencies.215 In addition,
NCAI asked OMB to centralize federal policies on federal-tribal consultation to increase tribal
understanding of different federal requirements.216
At the same time, agencies may also have limited personnel, time, and expertise to conduct
federal-tribal consultation. Agencies have reported demanding workloads for consultations
because of large numbers of Tribes, high volumes of consultations, or lengthy consultations.217 In
addition, some Tribes and other Indigenous entities have claimed that many agency officials lack
the necessary expertise in tribal and other Indigenous entities’ culture, history, and legal principles
to conduct meaningful consultation.218 These advocates stress that meaningful consultation is
possible only if federal agencies understand the “sources, scope, and significance” of tribal rights
and knowledge.219 Therefore, these groups have called for more federal trainings.220
Congress may consider options to expand tribal, other Indigenous entity, and agency capacity for
federal-tribal consultations and the advantages and disadvantages associated with these options.
For example, Congress could require agencies to hold in-person consultation sessions on tribal
lands and geographical regions accessible to Tribes and other Indigenous entities, or in
conjunction with other events they might attend, so as to increase opportunities for participation
in consultation.221 However, scheduling many in-person consultations in different locations may
increase the burden on federal agencies, Tribes, and other Indigenous entities. Congress may also
210 See GAO, “Tribal Consultation: Infrastructure,” p. 24. See also Letter from Fawn Sharp, President, NCAI, to
Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to congressional clients from the authors on request.
211 GAO, “Tribal Consultation: Infrastructure,” pp. 24-25.
212 Interagency Working Group, “Mining Recommendations,” p. 74.
213 Statement of NCAI, H.R. 5608 hearing, p. 85.
214 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to
congressional clients from the authors on request.
215 White House, “Best Practices Guide,” p. 11. DOI has committed to establishing this centralized database, but it has
not been established to date (DOI, “A Detailed Plan for Improving Interior’s Implementation of E.O. 13175,” at
https://www.doi.gov/sites/doi.gov/files/detailed-plan-for-improving-interiors-implementation-of-e.o.-13175-ombsubmission.pdf).
216 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to
congressional clients from the authors on request.
217 GAO, “Tribal Consultation: Infrastructure,” p. 30.
218 Ibid., pp. 26-27.
219 See Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, “2019
RESPECT Act hearing,” p. 55.
220 Ibid.
221 DOI, “Framing Paper,” p. 2.
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continue to consider whether agency training regarding expertise in tribal culture, history, and
legal principles would improve agency capacity.222
In addition, Congress may continue to consider tribal suggestions to centralize consultationrelated information.223 For example, a centralized calendar may reduce the federal administrative
burden of conducting tribal consultations, as agencies may be able to better coordinate and
leverage each other’s federal-tribal consultation sessions. Centralizing agency policies on tribal
and other Indigenous entity consultation may also help the parties better understand consultation
requirements and potentially increase transparency. On the other hand, establishing and
maintaining centralized databases of information would likely incur costs. Congress may also be
interested in what metric or metrics would be needed to analyze whether a centralized calendar
reduces the federal and tribal burdens on consultation.
Federal Funding
Congress has, at times, provided annual appropriations for agencies to help Tribes participate in
consultations. For example, Congress typically appropriates annual funding to the National Park
Service (NPS) for tribal historic preservation officers (THPOs).224 The funding may be used to
help pay expenses relating to federal-tribal consultation on projects on or affecting resources on
tribal lands. The amount granted to each THPO is determined by formula developed in
consultation with THPOs. Tribes have largely viewed appropriations as insufficient because they
have not kept up with the increase in approved THPOs. For example, in 1996, 12 Tribes were
approved by the Secretary of the Interior and NPS to assume the responsibilities of a THPO on
tribal lands, compared to over 200 in 2022.225
Congress has also appropriated supplemental funding that has been used to support federal-tribal
consultation. For example, the Inflation Reduction Act of 2022 (P.L. 117-169) appropriated $350
million to the Permitting Council’s Environmental Review Improvement Fund (ERIF). In 2023,
the Permitting Council set aside $5 million from the fund to support tribal engagement in the
environmental review and authorization process for FAST-41 covered projects.226
Congress may also evaluate whether and to what degree Tribes and other Indigenous entities
should be compensated for participating in consultations. A 2019 GAO report found that 10 of 21
agencies’ federal-tribal consultation policies specify the extent to which the agencies may
compensate Tribes and other Indigenous entities for participating in federal-tribal consultation.227
Based on the report, it is unclear whether the agencies lack authority or choose not to use their
authority. In addition, Congress may wish to review GAO’s recommendations about whether
222 See, e.g., RESPECT Act (H.R. 3587).
223 See H.R. 9439, §12 (“the current lack of centralization in Federal agencies’ Tribal consultations- (A) results in a
number of challenges, including scheduling conflicts and unsustainable drains on resources of Indian Tribes and the
time of Tribal leaders”).
224 A tribal historic preservation officer is appointed by the Tribe for purposes of NHPA §106 compliance on tribal
lands (36 C.F.R. §800.16).
225 See, e.g., Statement of Valerie J. Grussing, PhD, Executive Director, the National Association of Tribal Historic
Preservation Officers, U.S. Congress, House Committee on Appropriations, Subcommittee on Interior, Environment,
and Related Agencies, PART 7 Testimony of Interested Individuals and Organizations, 116th Cong., 2nd sess., February
6, 2020 (Washington: GPO, 2021). See also National Park Service, “Tribal Historic Preservation Office (THPO)
Grants,” at https://www.nps.gov/subjects/historicpreservationfund/thpo-grants.htm.
226 Permitting Dashboard, “ERIF Tribal Assistance Program,” at https://www.permits.performance.gov/fpisccontent/erif-tribal-assistance-program.
227 GAO, “Tribal Consultation: Infrastructure,” p. 48.
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some agencies’ methods for financing federal-tribal consultation activities may be applicable at
other agencies, such as
•
•
•
collecting fees from nonfederal infrastructure project applicants to cover agency
costs of conducting federal-tribal consultation,
distributing debit cards to tribal officials to cover travel expenses related to
federal consultation, and
contracting with third parties that reimburse Tribes and other Indigenous entities
for their expertise.228
228 Ibid., pp. 49-50.
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Appendix. Select Legislation That Proposed
Establishing Federal-Tribal Consultation Standards
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Table A-1. Select Legislation That Proposed Establishing Federal-Tribal Consultation Standards
Bills Introduced in the 117th and 118th Congress
Legislation
Rural Economicdevelopment
Assistance and
Consultation to
Help Our Tribes
Act (REACH Our
Tribes Act),
H.R. 5113/S. 3270
Congress
118th
Brief Description
Proposed setting federaltribal consultation
requirements for the
budget formulation process
at the U.S. Department of
Agriculture.
Tribal
Consent or
Consensus
Requirement
No
Legislative Consideration Milestones
Referred to the House Committees on Agriculture,
Transportation and Infrastructure, and Financial Services on
August 1, 2023
Most Recent
Hearing (If
Applicable)
N/A
Referred to the House Transportation and Infrastructure
Committee’s Subcommittee on Economic Development,
Public Buildings, and Emergency Management on August 2,
2023
Referred to the Senate Committee on Agriculture, Nutrition,
and Forestry on November 9, 2023
Advancing Tribal
Parity on Public
Land Act,
H.R. 6148/S. 3186
118th
Proposed requiring the
Secretaries of the Interior
and Agriculture to consider
“the rights and interests of
any interested Indian
Tribe” prior to disposing of
federal lands.
No
Referred to the House Committees on Natural Resources
and Agriculture on November 1, 2023
Referred to the Senate Committee on Indian Affairs on
November 1, 2023
House Natural
Resources
Subcommittee on
National Parks,
Forests, and Public
Lands
September 14,
2022
Honoring Promises
to Native Nations
Act,
H.R. 9439/S. 5186
117th
Proposed directing the
White House Office of
Management and Budget to
develop a tribal
consultation policy.
Yes
Referred to the Senate Committee on Indian Affairs on
December 5, 2022
N/A
CRS-35
Referred to the House Committees on Natural Resources,
the Budget, the Judiciary, Energy and Commerce, Education
and Labor, Financial Services, Veterans’ Affairs,
Transportation and Infrastructure, and Agriculture on
December 6, 2022
Legislation
Congress
Requirements,
Expectations, and
Standard
Procedures for
Effective
Consultation with
Tribes Act
(RESPECT) Act,
H.R. 3587
117th
Assuring Regular
Consultation to
Have Indigenous
Voices Effectively
Solicited Act,
H.R. 4386/S. 981
117th
Brief Description
Tribal
Consent or
Consensus
Requirement
Proposed requiring federaltribal consultation before
an agency conducts “any
proposed Federal activity
or finaliz[es] any Federal
regulatory action that may
have Tribal impacts.”
Yes
Proposed establishing
requirements for tribal
consultation prior to the
sale or transfer of certain
federal civilian real
property.
No
Legislative Consideration Milestones
Referred to the House Committees on the Judiciary and
Natural Resources on May 28, 2021
Referred to the House Natural Resources Subcommittee for
Indigenous Peoples of the United States on June 28, 2021
Most Recent
Hearing (If
Applicable)
House Natural
Resources
Committee
May 19, 2021
Referred to the House Judiciary’s Subcommittee on Antitrust,
Commercial, and Administrative Law on November 1, 2022
Referred to the House Transportation and Infrastructure’s
Subcommittee on Economic Development, Public Buildings,
and Emergency on July 12, 2021
N/A
Referred to the Senate Committee on Environment and
Public Works on March 25, 2021
Source: CRS. Legislation from the 117th and 118th Congress was selected using terms such as “tribe,” “tribal,” and “consultation.”
Note: N/A = not applicable. “Tribal consent or consensus requirement” indicates that the bill required the federal agency or agencies to obtain tribal consent or
consensus as part of tribal consultation.
CRS-36
Federal-Tribal Consultation: Background and Issues for Congress
Author Information
Mariel J. Murray, Coordinator
Specialist in Natural Resources Policy
Eva Lipiec
Specialist in Natural Resource Policy
Nicole T. Carter
Specialist in Natural Resources Policy
Mainon A. Schwartz
Legislative Attorney
Disclaimer
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Congressional Research Service
R48093 · VERSION 1 · NEW
37
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