Government-to-Government Consultation Policy

Government-to-Government Consultation Policy

of the Colorado River Indian Tribes

The federally recognized Colorado River Indian Tribes (CRIT or the Tribes) have over

4,000 active members from four distinct tribes the Mohave, Chemehuevi. Hopi, and Navajo.

The Tribes’ reservation, which encompasses nearly 300,000 acres, straddles the Colorado River

in both Arizona and California. The Tribes’ ancestral homelands, however, extend far beyond the

current reservation boundaries, into what is now public and private land in Arizona, California,

and Nevada. As a result, the Tribes’ cultural resources, including sacred sites, trails, and artifacts,

are found beyond the reservation boundaries as well. The Tribes are deeply committed to the

ongoing protection of such resources located both on- and off-reservation.

—

Federal law recognizes that CRIT is a sovereign government distinct from the United

States. As a result of this status, the United States must engage in government-to-government

consultation with the Tribes when actions or decisions of the United States have the potential to

impact the Tribes, its government, tribal land, or cultural resources. This consultation must occur

before the momentum toward any particular outcome becomes too great. The purpose of this

government-to-government consultation must be to obtain CRIT’s free, prior, and informed

consent for such actions) Desired outcomes include an ongoing, mutually beneficial relationship

between federal agencies and the CRIT Tribal Council, deference to tribal sovereignty, and

informed decision-making by both the United States and the Tribes. Federal agency staff and

decision-makers must view consultation as more than listening and learning sessions with Tribal

Council. instead, there must be an ongoing, dynamic relationship between federal agencies and

the Tribes that is built upon the agencies’ concerted effort to understand the Tribes’ history,

culture, and government.

The Tribes have developed this policy paper to guide future government-to-government

consultation with the United States and its administrative agencies.2 This paper outlines CIUT’s

consultation rights and the specific characteristics that comprise minimally adequate consultation

under federal law. This paper also offers additional suggestions to ensure that consultation is

effective and mutually respectful.3 If federal agencies do not follow this policy, CRIT does not

consider the communications from the agencies to meet the consultation requirements of tribal or

federal law. Acknowledgement of this policy is required before an agency schedules a

government-to-government meeting with Tribal Council. CRIT is committed to seeking recourse

United Nations Declaration of the Rights of Indigenous Peoples, Articles 19 and 32; see also 36 C.F.R.

§ 800.1 (I) (defining “consultation” as “the process of seeking, discussing, and considering the views of

other participants, and where feasible, seeking agreement with them.”); BLM Manual Handbook H-8120I at 1-2 (consultation includes “[tjreating tribal information as a necessary factor in defining the range of

acceptable public-land management options.”).

2

36 C.F.R. § 800.4(c)(2)(ii)(C); 43 C.F.R. § iO.5(d)(3); Improving Tribal Consultation and Tribal

Involvement in Federal Infrastructure Decisions (January 2017) (“Improving Tribal Consultation”),

Key

Principle 8.

Required actions are distinguished from recommended actions by use of the words “must” and “shall”

versus “should.”

through all available political, legal, and media channels if this reques

t is denied or ifthe agency

fails to comply with this policy.

Why A Formal Process is Needed

Federal agencies (including the Department of the Interior, Bureau of

Land Management,

and Bureau of Indian Affairs) have consistently failed to engage in adequa

te government-togovernment consultation with CRIT and other tribes. The United States

recently recognized this

troubled history in suggesting needed modifications to the consultation

process.4 In CRIT’s

experience, agencies have asiced for substantive tribal comments

on project and policy

documents after those projects and policies have already been approved

or implemented. Agency

staff and decision-makers have attended meetings with Tribal Council

without adequate

information or authority to meaningfully respond to the Tribes’ concer

ns. Agencies have

repeatedly refused to provide responses to CRIT’s comments, including

any explanation for why

CRIT’s requests cannot be accommodated. These failures have resulted

in direct harm to CRIT,

its members, and cultural resources of great importance to the Tribes.

As one example, BLM authorized construction of the nearly 2,000-acre

Genesis Solar

Energy Project on land once occupied by the ancestors of CRIT’s

Mohave members. The project

involved significant grading along the shoreline of Ford Dry Lake,

resulting in the removal of

over 3,000 cultural resources over the vehement objections of the Tribes

. These artifacts are now

stored at the San Bernardino County Museum with no access for CRIT

members. In accordance

with cultural, spiritual, and religious practices, CRIT has repeatedly

asked BLM to permit

reburial of the Genesis artifacts, as well as any other artifacts that

are inadvertently disturbed

within the ancestral homeland. Yet, BLM has refused to engage in

government-to-government

consultation on this critical topic. Letters have been left unanswered,

harmful agency policies

have been issued without advance notice or consultation, and BLM

officials have been

unprepared to discuss thcir position when in-person meetings have

occurred. These consultation

failures have resulted in severe and ongoing harm to CRIT and its

members.

Basis of Consultation Right

The fundamental principle underlying CRIT’s right to meaningful consul

tation with the

United States is the Indian trust doctrine. Pursuant to this doctrine,

the United States has a

fiduciary duty over tribal lands and resources as Indian trust assets?

As part of this duty, the

United States has an obligation to consult with CRIT about federal

actions that have the potential

to impact these assets or other attributes of tribal sovereignty.

For CRIT, tribal sovereignty

includes an obligation to protect tribal and cultural resources that are

located in the ancestral

homelands of CRIT members.

Improving Tribal Consultation, at 1-5.

Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942); PH River

Tribe v. US. Forest Service,

469 F.3d 768, 788 (9th Cir. 2006); Navajo Tribe of Indians i United Stares.

364 F.2d 320, 322 (Ct. Cl.

1966).

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This fundamental consultation right is engendered in federal statutes,6 executive orders,7

and agency policies8 These laws help implement and explain the consultation right that sterns

from the Indian trust doctrine, but do not diminish it.9 Where appropriate, CRIT relies on these

laws to support its definition of adequate consultation.

Characteristics of Adequate Consultation

Tribal Sovereignly. Government-to-government consultation must respect tribal

sovereignty.’6 The federal government shall not treat consultation as a “box to be checked,” but

as a meaningful dialogue intended to result in consensus between the United States and the

Tribes.

Addressing Tribal Concerns. The federal government shall timely seek and review

CRIT’s written and oral comments and provide comprehensive responses to Tribal concerns and

requests.’’ Responses to written comments should generally be provided before any in-person

government-to-government consultation. Prior to reaching its final decision, a federal agency

must explain how that decision addresses CRIT’s concerns)2 Where an agency is unable to fully

address CRIT’s concerns, the agency shall clearly explain its reasoning based on the legal,

practical, or policy constraints on its decision-making.’3 IfCRIT has articulated its concerns in

writing, this explanation should be in writing as well.

Involved Parties. Government-to-government consultation requires an in-person meeting

between CRIT Tribal Council and the agency decision-maker with ultimate authority for a

proposed project or action.14 This decision-maker must be prepared with sufficient details about

the proposed project or action, the Tribes’ history, culture and government, and the Tribes’

6

See, e.g.. National Historic Presen’ation Act (NHPA). 54 U.S.C. § 302701(e). 302706(b); 36 C.F.R.

§

800.5(a); Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.

3002(b)§

(c), 3003(b), 3004(b), 3005(a)(3); 43 C.F.R. § 10.5; Archaeological Resources Protection Act (ARPA), 43

C.F.R. § 7.7(b)(4), 7.16(b)(2)-(3).

Executive Orders 12875, 13007, 13175; September23, 2004 “Memorandum on Government-toGovernment Relationship with Tribal Governments”; November 9, 2009 “Memorandum for the Heads of

Executive Departments and Agencies.”

Secretarial Order 3317 § (b); Department of the Interior Policy on Consultation with Indian Tribes;

BLM Manual 8210: Tribal Consultation under Cultural Resource Authorities; Bureau of Indian Affairs

Government-to-Government Consultation Policy (BIA Consultation Policy) at V.1-3.

36 C.F.R. § 800.4(c)(2)(ii)(B); Executive Order 13175, § 2.

1036 C.F.R. 800.4(c)(2)O

i)(B); ELM Manual 8120 at .08(A) (“The special legal status of tribal

§

governments requires that official relations with BLM

shall be conducted on a government-togovernment basis.”).

Executive Order 13175, § 5(b)(2)(B), 5(c)(2); Improving Tribal Consultation. Key Principle 6.

2

ELM Manual 8120, Glossary of Terms (“consultation” defined to include “documenting the manner in

which the [tribal) input affected the specific management decision(s) at issue.”); ELM Manual Handbook

H-8I20-1 at 1-1; Improving Tribal Consultation, Key Principle 6.

BLM Manual 8120 at .06(E) (“Field Office Managers and staff.., shall document all consultation

efforts.”); Improving Tribal Consultation, Key Principle 6.

‘

See, e.g., 36 C.F.R. § 800.2(a); EtA Consultation Policy at VI.A(4); ELM Manual 8210 at .06(A).

.

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.

.

anticipated or specific concerns with respect to the proposed project or action. This decisionmaker should also have formal training regarding tribal sovereignty, the Indian trust doctrine.

and other aspects of federal Indian law. The agency should use its staff to communicate project

information to CRIT and its staff and to prepare the agency decision-maker for the governmentto-government consultation. For example, prior to meeting with CRIT Tribal Council. it is the

Tribes expectation that agency staff will have provided baseline information about the project

and its potential impacts to Tribal staff, such as survey results and ethnographic reports.

However. CRIT does not recognize staff-to-staff discussions or communications as fulfilling the

federal government’s consultation responsibility. 16

In addition, communications between CRIT and project applicants or proponents (where

such applicants or proponents are not federal entities) are not government-to-government

consultation. Such communications, however, can help to convey information and reduce

conflict. Unless requested by CRIT. federal agencies shall not interfere with such

communications. Finally, meetings held with representatives from multiple tribes do not

constitute consultation with CRIT unless CRIT expressly agrees that consultation format.’7

Tinting. Government-to-government consultation must occur as early as practicable, so

that tribal concerns can be taken into account before the momentum toward a particular project

or action is too great.’8 Federal agencies should provide basic information about a project or

action and its potential impacts to CRIT as soon as the agency begins initial planning for a

project or action or a private entity approaches the agency to submit an application)9 Federal

agencies should keep CRIT apprised of the decision-making timeline so that the Tribes can

participate at appropriate junctures. Federal agencies shall continue to consult with Tribes until

they make a decision on the proposed project or action, and if requested by the Tribes or required

by law, until construction or implementation of the project or action is complete.

“See also Pueblo of Sandia v. United States, 50 F.3d 856, 860, 862(10th Cir. 1995) (Section 106

“mandates an informed consultationI); BLM Manual 8120 at .06W) (“Field Office Managers shall

recognize that traditional tribal practices and beliefs are an important, living pan of our Nation’s heritage,

and shall develop the capability to address their potential disruption

); BLM Manual Handbook H8120-1 at 1-2 (“BLM’s representative must be authorized to speak for the BLM and must be adequately

knowledgeable about the matter at hand.”); Improving Tribal Consultation. Key Principle 5.

6

Queclza,; Tribe ofthe Foil )lm,ahidian Resen’ation i’. U.S. Dept o/hiterior. 755 F. Supp. 2d 1104,

1118-19 (S.D. Cal. 2010).

‘

Id.

2

16 U.S.C. § 470a(d)(6), 470f (requiring consideration of historic resource impacts “prior to the

approval of... the undertaking”) (emphasis added); 36 C.F.R.

§ 800.1(c), 800.4(c)(2)(iD(A); Executive

Order 13175, § 5(b)(2)(A). 5(c)(1); Secretarial Order 3317, U.S. Dept. of the Interior, 4(a); Dep’t

of

§

the interior Tribal Consultation Policy at 7-8; BIA Consultation Policy at VI.A; BLM Manual

8120 at

.02(8) (consultation must “[e]nsure that tribal issues and concerns are given legally adequate

consideration during decision-making) (emphasis added); BLM Handbook Manual H-8120-1 at V-S

the BLM manager shotild initiate appropriate consultation with potentially affected Native Americans, as

soon as possible after the general outlines of the land use plan or the proposed land use decision can be

described.”).

‘

Improving Tribal Consultation, Key Principle 3.

1

Scope of Consultation. Federal agencies must be willing to engage in consultation on any

potential impacts of a proposed project or action to CRIT, its members, its land, or its cultural

resources.20 Consultation shall not be limited to potential impacts to properties eligible for listing

on the National Register of Historic Places2’ or equivalent state registers, or protected by the

Native American Graves Protection and Repatriation Act. If federal approval is needed for only a

portion of a proposed project or action, the agency shall nevertheless consult on potential

impacts from the whole of the project or action. Federal agencies should not expect CRIT to

provide information about impacts to cultural resources in scientific terms and should weigh the

Tribe’s cultural, spiritual, historical, and anthropological input with the respect and deference

that it is due.22

Confidentiality. Information obtained via government-to-government consultation shall

be kept confidential, except to the extent that CRIT provides information in a public forum (such

as via a letter submitted during a comment period or comments made at a hearing) and to the

extent such information must be revealed pursuant to federal or other applicable law.23 Ifa

federal agency determines that confidential information obtained from CRlF must be revealed,

the agency shall inform CRIT prior to the release and make all reasonable attempts to limit its

scope. Federal agencies shall acknowledge that confidential information is not limited to the

location of sites eligible for listing on the National Register of Historic Places24 or protected by

the Native American Graves Protection and Repatriation Act, but includes any information about

sensitive resources, culture, or religious beliefs, obtained through consultation.

Resources. Federal agencies must recognize that government-to-government consultation

consumes scarce tribal resources. Agencies should minimize costs to cR11 by conducting

government-to-government consultation meetings in Parker, Arizona2; providing clear and

succinct information about proposed projects or actions and their potential impacts; and ensuring

that agency staff document CRIT’s interests and concerns, CR11 should not be required to

repeatedly provide the same information to an agency because of agency staff turnover. Agencies

should explore funding sources to remunerate the Tribes for participating in consultation.

Key Requirements

To aid in implementation of this policy, agency officials shall ensure their governmentto-government consultation efforts comport with this summary of key requirements:

•

Initiate consultation as early as practicable.

•

Timely seek and review CRIT’s written and oral comments.

20

Executive Order 13175, § 1(a).

36 C.F.R. § 800.4(c)(2)(ii).

22

See, e.g., BLM Manual Handbook 8-8120-1 at 11-5.

23

See 36 C.F.R. § 800.4(a)(4), 800.11(c); see also BLM Manual 8120 at .06(G).

2436 C.F.R. § 800.4(c)(2)(ii)(A); see also BLM Manual Handbook

1-1-8120-1 at V-I.

25

Improving Tribal Consultation, Key Principle 4.

21

5

•

Provide comprehensive responses to Tribal concerns and requests in the samc

format as such concerns and requests were provided to the agencY.

•

Explain agency decisions based on legal, practical, and policy constraints on

decision-making.

•

Involvc agency decision-makers with ultimate authority in in-person consultation

meetings.

•

Sufficiently prepare for in-person consultation meetings with Tribal Council to be

able to respond to and address the Tribes’ concerns.

•

Do not claim that communication with CRIT staff, between CRIT and project

applicants, or in the presence of multiple tribes is government-to-government

consultation.

•

Consult on any potential impacts of a proposed project or action on CRIT, its

members, its land, or its cultural resources.

•

Keep information obtained via government-to-government consultation

confidential.

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