HOOPA VALLEY TRIBAL COUNCIL

HOOPA VALLEY TRIBAL COUNCIL

Hoopa Valley Tribe

Post Office Box 1348 Hoopa, California 95546

PH (530) 625-4211 • FX (530) 625-4594

www.hoopa-nsn.gov

Chairman Joe Davis

HOOPA VALLEY TRIBAL CONSULTATION POLICY

FOR USE BY

FEDERAL, STATE AND LOCAL AGENCIES

1. AUTHORITY AND PURPOSE

The intent of this policy is to create clear and precise expectations with respect to formal

government-to-government consultations with the Hoopa Valley Tribe. This consultation policy

clarifies Hoopa Tribal expectations for “meaningful consultation” in a “free, informed, and prior

consent forum” while ensuring effective and efficient communication with the Tribal Council.

This will also reduce confusion and conflicts when engaging with tribal staff versus the leadership

of the Tribe. Receipt of this document is notice to any local, state, or federal government agency

or similar governmental entity (“Agency)” of proper government-to-government consultation with

the Hoopa Valley Tribe.

This policy does not apply to or constrain communications between departments or entities within

the Hoopa Valley Tribe. Nor is this policy meant to inhibit informal discussions between tribal

officials and Agency employees on matters that have not yet risen to the level of formal

government-to-government consultations concerning official Agency actions.

2. DEFINITIONS

The Hoopa Valley Tribe believes, Consultation is a process that supports tribal sovereignty and

self-determination and recognizes the inherent rights of Indian Tribes to self-governance. If in

consent with the tribe, Consultations help ensure that the United States and California are meeting

their legal responsibilities to Indian Tribal Governments.

The US Constitution references tribes several times and exempts them from taxes and empowers

Congress to regulate commerce with tribes. In 1831, the Supreme Court issued what is described

as the “federal trust doctrine” and upheld tribes as “Domestic Dependent Nations,” declaring them

separate from states and recognizing them as nations.

The Hoopa Valley Tribe is in the unique position of holding several congressional actions such as

the 1988 Yurok-Settlement Act, 1990 Tribal Authority Rule of Clean Air Act, 1992 Central Valley

Project Improvement Act, 2016, Section 518 of the Clean Water Act, the Bugenig v. Hoopa Valley

Tribe appellate decision, and 2002 Hoopa Water Quality Control Plan approved and promulgated

by the US EPA, all confirming the Hoopa Tribes right to exerting its authority over the Hoopa

Valley Indian Reservation.

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

In 2000, President Clinton issued Presidential Executive Order 13175, which requires that the

federal government and its agencies develop policies to strengthen government-to-government

relationships with Indian Tribes. This included the development of regulations, legislation and

any other policy documents. The order further stated that consultation with Indian Tribes be

“meaningful.” It further upheld a Tribe’s inherent sovereign powers over their members and

territory.

In 2011, California Governor Brown issued Executive Order B-10-11 recognizing and affirming

the inherent rights of tribes within the State and requiring agencies to engage in “meaningful

consultation” with Tribes. In 2019, California Governor Newsome issued Executive Order N-1519 reaffirming B-10-11 to provide meaningful consultation government-to-government with tribes

and creating a Truth and Healing Council.

There are many relevant and instructive definitions of consultation. For example, Public

Resources Code §21080.3.1 (a) and Government Code §65352.4 define consultation as, “The

meaningful and timely process of seeking, discussing, and considering carefully the views of

others, in a manner that is cognizant of all parties' cultural values and, where feasible, seeking

agreement. Consultation between government agencies and Native American tribes shall be

conducted in a way that is mutually respectful of each party's sovereignty. Consultation shall also

recognize the tribes' potential needs for confidentiality with respect to places that have traditional

tribal cultural significance.”

The Tribe has set forth below its formal definition of “Consultation” and related terms:

a. “Consultation” is the ongoing process of seeking, discussing, and seriously

considering the views of the Tribe, and reaching an agreement with the Tribe on

the development, implementation or mitigation of regulations, policies, programs,

projects, property decisions, and other activities that may affect Tribal sovereignty,

resources, properties, cultural practices, and those persons under Tribal jurisdiction.

b. “Multi-lateral Government-To-Government Consultation” means meetings

among multiple Tribal governments and the Agency when policies or programs

with broad application throughout Indian Country are being developed and/or

modified by the Agency.

● For broad decisions, such as development or modification of federal

policies that affect all Indian Nations similarly, the Tribe may accept

invitations to participate in Multi-lateral Tribal Consultations.

c. “Bi-lateral Government-to-Government Consultation” means authorized

individuals of the Tribe meet directly with the Agency in an effort to reach an

agreement on a proposed regulation, policy, program, project, property decision, or

other activity that would affect the resources, properties, cultural practices, and

those persons under the jurisdiction of the Tribe.

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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● The Tribe may demand Bi-lateral Government-to-Government

Consultation whenever a proposed regulation, policy, program, project,

property decision, or activity will clearly have a significant and direct effect

on Tribal sovereignty, resources, properties, cultural practices, and/or those

persons under Tribal jurisdiction.

d. “Coordination Meetings” are regular meetings occurring at an agreed upon

interval that serve to clarify how the Tribe and the Agency will continue to consult

in order to reach an agreement or end result of the proposed regulation, policy,

program, project, property decision, or any other activity that may have an effect

on tribal resources, properties cultural practices, and/or those persons under Tribal

jurisdiction.

● Coordination meetings will serve as a forum for sharing data or making

agreements to share responsibilities about data collection. Coordination

meetings will be used as an opportunity for the Tribe to provide input on

processes; such as development of agency, government, department, or

corporation plans. Coordination meetings will usually involve Tribal staff

but may involve Tribal Council or other Tribal decision makers.

3. GUIDING PRINCIPLES

1) Agency Responsibilities

Federal or State agencies are obligated to seek out Tribal input and providing opportunities

for meaningful consultation. This requires more than public participation efforts such as

sending letters, notices, and copies of documents to Tribe and requesting comments.

Whereas many public participation opportunities exist for a set period of time, consultation

with the Tribe is ongoing and continuous. Federal agencies must make concerted efforts to

provide Tribal involvement in decision-making and follow the consultation procedure in

order to fulfill any consultation requirements. It is important to understand that the Tribe

may elect not to participate in consultation or may decide to limit its consultation as

necessary.

2) Participant Roles

Meaningful consultation requires that the Tribe and the Agency understand their respective

roles in the decision-making process. The Tribe and an Agency must understand the legal

underpinnings of the government-to-government relationship and the obligations of the

federal trust relationship. Tribal governments must understand the policy decision-making

authority of the Agency and national politics of the federal or state decision that drive the

consultation. An Agency will benefit from an understanding of the Tribes’ unique culture,

perspective, governmental infrastructure, and resources.

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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3) Communication

Communication between the Agency and Tribe will facilitate a joint decision-making

process. Regular consistent communication is essential to meaningful and informed

consultation.

4. OBJECTIVES OF CONSULTATION

1) The objectives to be met by persons participating in a government-to-government

consultation process, include, but are not limited to, the following:

a) Ensure that the authorized individuals of the Tribe receive proper and advance

notice of, and understand, the technical and legal issues necessary to make informed

policy decisions;

b) Ensure Agency compliance with trust obligations as well as other applicable federal

or state laws and policies affecting Tribal rights, resources, culture, religion,

subsistence, and commerce;

c) Improve policy level decision-making of the Tribal Council and the Agency;

d) Achieve bi-lateral decision-making of the Tribal Council and the Agency;

e) Ensure the protection of Tribal rights, resources, culture, religion, and economy;

f) Ensure compliance with Tribal laws and policies;

g) Provide an opportunity for the Tribe to express views and concerns about the issue;

h) Develop and achieve mutual decisions through a complete understanding of

technical and legal issues; and

i) Improve the integrity of federal/state-Tribal decisions.

5. ESTABLISHMENT OF POINT OF CONTACT

The Chairperson of the Tribe is the official point of contact for government-to-government

consultation with authorities granted by members of the Tribal Council. All requests will be

provided to the Chairperson with additional copies provided to the seven council members. The

Tribal Council may choose to designate an alternative point of contact by issuing a written

statement signed by the Chairperson of the Tribe.

The Tribe holds elections every two years for Chairperson. It is up to the requesting agency to

ensure its request is using the correct name. Currently the Hoopa Tribal Chairman is:

Joe Davis, Chairman

Hoopa Valley Tribe

P.O. Box 1348

Hoopa, CA 95546

Phone: (530) 625-4211

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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Fax: (530) 625-4594

Email: hoopachairman@gmail.com

6. CONSULTATION PROCEDURE

1) Request for Consultation and Advance Notice

a) Early in the planning process, any Agency that seeks to develop or implement any

regulation, policy, program, project, property decision, or any other activity that may

affect Tribal sovereignty or the Tribe’s right to self-government, Tribal resources,

properties, cultural practices, and/or those persons under Tribal jurisdiction must

request a consultation and provide advance notice to the Tribe. An Agency can do this

by sending a letter and attachments requesting Consultation or providing notice to the

Tribal Chairperson with copies provided to members of the Tribal Council.

b) This letter must include:

● a draft or overview of, and need for, the policy, regulation, program or project, its

scope and impact, and any applicable maps of the project area;

● a summary describing how the proposed regulation, policy, program, project,

property decision, or activity may affect Tribal sovereignty, resources, properties,

cultural practices, and/or those persons under Tribal jurisdiction.

● a contact person, timeline of the project, and any other relevant information to assist

the Tribe in determining if consultation is in the best interest of the Tribe.

c) Within 30 days after receiving the letter requesting Consultation, the Tribal Council

will designate an authorized individual of the Tribe who will then respond to the

Agency that the Tribe would like to schedule a pre-consultation meeting.

d) If an Agency fails to request Consultation on the development of any regulation, policy,

program, project, property decision, or any other activity that the Tribe believes may

affect Tribal resources, properties, cultural practices, and/or those persons under Tribal

jurisdiction, the Tribe may take the initiative to request Consultation. In this event, the

Tribe expects a response from the Agency within 15 days of the receipt of the request.

2) Pre-Consultation Meeting

a) Before the Agency moves past the scoping stage of a project, it must participate in a

pre-consultation meeting with the Tribe. This meeting will involve authorized Tribal

staff who will be responsible for briefing the Tribal Council before the consultation

meeting takes place. Tribal Council members may be involved in this pre-consultation

meeting.

b) The Agency will prepare a review packet for the pre-consultation meeting that presents

the proposed regulation, policy, program, project, property decision, or any other

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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activity of the Agency. The Agency must discuss the need for the proposed Agency

action and how it may affect Tribal sovereignty, resources, properties, cultural

practices, and/or those persons under Tribal jurisdiction.

c) The review packet must also include:

i) Who the responsible agency is, the nature of its involvement, and an agency

contact person with his/her address, phone, and e-mail

ii) For projects involving construction, infrastructure, or other physical

development:

● Project description, including size and configuration of the proposed action,

total acreage, what is known about past and current land use, and the type

and extent of the proposed ground disturbance, the location (street address

if available);

● A copy of the current plans;

● Maps that clearly identify the project location,

● Clearly defined Area of Potential Effects (APE) for both direct and indirect

(visual, audible, atmospheric changes) effects, to be described verbally and

drawn on a map;

● Information on any previous studies and recorded archaeological sites

resources within the APE;

● Sharp, clear photographs of the project area, including views from different

perspectives. All photos should be clearly labeled and keyed to the map

indicating the location and direction of the view;

d) The Agency must present any technical and legal issues to the Tribal Council or their

designee. The Agency will ensure that the Tribal Council or their designee understand

the proposed Agency action.

e) The Tribal advisors and staff will brief Tribal Council following the pre-consultation

meeting. If the Tribal Council determines that it is in the best interest of the Tribe then

the authorized Tribal advisor or staff will reach out to the Agency within 30 days to

initiate a consultation meeting.

3) Consultation Meeting

a) The Agency must arrange with the Tribal Chairperson a time, place, and agenda for the

consultation meeting.

b) After the Agency and Tribal Chairperson have made arrangements for a consultation

meeting the Agency must confirm the Consultation Meeting with Tribal Chairperson 7

days prior to the arranged date. Confirmation can be in the form of a phone call, email,

or any other approved correspondence by Tribal Chairperson.

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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c) The Agency must call the Tribal Chairperson 24 hours prior to the arranged meeting

date to provide adequate notice and confirmation of the meeting to the Tribe. This

notice must include the Agency’s representative’s name, contact information, and

expected time of arrival.

d) The Agency must prepare a review packet for the Tribal Council similar to the review

packet required in the pre-consultation meeting and any additional information that will

be necessary for the Tribal Council to reach an agreement.

e) The Consultation Meeting must also address the following:

i) A discussion of any barriers to Tribal participation such as timing, financing,

and/or location. The Agency must provide funds for off reservation

consultation, if necessary;

ii) A discussion of any sensitivities regarding sacred sites affected by the project;

iii) A discussion of any technical or legal issues;

iv) A mutually agreed upon format for process;

v) Development of a Consultation calendar or an agreed upon meeting interval to

ensure that enough meetings are planned for adequate meaningful consultation.

The Consultation calendar or meeting intervals should take into account the

Agency’s statutory or regulatory obligations pertinent to the decision;

availability of Tribal Council members and staff; and time to gather all

necessary information required. The Agency will ensure that the Tribal Council

understands the proposed regulation, rule, policy, program, project, plan,

property decision, inspection, or any other activity of the Agency.

4) Ongoing Consultation Meetings (if necessary) or Coordination Meetings

a) Consultation meetings should continue pursuant to the agreed upon Consultation

Calendar or meeting interval until an agreement is reached or until the Tribe and

Agency decide that an agreement is possible. Some consultation meetings may be in

formal settings, while other may include field trips to project locations as needed.

Informal meetings between staff, sub-groups, or sub-committees may be formed on an

ad hoc basis as needed and agreed upon by Tribal Council.

b) All ongoing Consultation Meetings and Coordination Meetings require the Agency to

confirm the meeting with Tribal Council one week prior to the arranged date.

Confirmation can be in the form of a phone call, email, or any other approved

correspondence by Tribal Council.

c) The Agency must call the Tribal Chairperson or their designee 24 hours prior to the

arranged meeting date to provide adequate notice and confirmation of the meeting to

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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the Tribe. This notice must include the Agency’s representative’s name, contact

information, and expected time of arrival.

5) Provide the Tribe with a Consultation Summary Report

a) The Agency shall provide the Tribe with a detailed report that provides a review of the

government-to-government consultation process and all consultation activities after an

agreement has been authorized by the Tribal Council and approved by resolution.

b) This Consultation Summary Report may be used by Tribal Council without the consent

of the Agency for any Tribal business matter; including but not limited to Tribal

meetings.

6) Certification of Completed Consultation

At the end of the government-to-government consultation process, the Tribal Chairman

will offer a letter certifying that Consultation was completed in compliance with this

policy or not. In the event that the Tribe deems that the Agency failed to consult

properly, a letter from the Tribe will explain this failure and be shared with the director

or executive authority of the Agency.

7) Emergency Consultation Process

Consultation should be conducted with advance notice to avoid any devastating impacts

to tribal resources. Should an Agency require consultation with a tribe in an emergency

situation in which notice cannot be provided 7 to 30 days in advance, the Agency needs

to contact the Tribal Chairperson immediately and provide a summary of the actions

and potential impacts. The Tribal Chairperson will meet with the Tribal Council and

stakeholders to determine if the Tribe can participate in an emergency consultation.

Action steps will follow the steps set forth above but with immediate and shortened

timelines as mutually agreed upon.

7. BEST PRACTICES

Consultation best management practices for an Agency include:

a) Advance notice from the Agency to the Tribe of any new policy, regulations, rule,

program or other activity;

b) Communication with the Tribe, beginning early in the planning process and continuing

throughout the project;

c) Multiple venues for consultation;

d) Formal and informal meetings;

e) The existence of a Tribal liaison;

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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f) The Agency’s fostering of a relationship with Tribal Council and Tribal staff;

g) An early effort of identifying potential areas of concern for the Tribe;

h) Full and candid information provided to the Tribe prior to the first meeting (in the

consultation request letter and at the pre-consultation meeting);

i) An open-ended and flexible agenda (no surprises or hidden agendas);

j) Facilitators for the sessions, alternating between the Agency and the Tribe, or an agreed

upon the third party;

k) A successful result is viewed as partners arriving at an agreement, although reaching

an agreement is not an end in itself;

l) Tribal views and concerns are taken into account and implemented;

m) Agreed upon measures are in place and enforceable;

n) Implementation of a feedback mechanism;

o) Tribal participation in the development of agendas for ongoing consultation meetings

or coordination meetings; and,

p) Any other best practices that the Agency and the Tribe agree upon.

8. CONSULTATION RECORD

Meeting notes, minutes, shared documents, and any recorded audio or video files shall be

maintained in common between the Tribe and the Agency. Any sensitive information provided by

the Tribe shall remain confidential or be returned to the Tribe upon request; unless otherwise agree

to, in writing, by the Tribal Council.

9. NO WAIVER OF SOVEREIGN IMMUNITY

Nothing in the policy shall be deemed or construed to be a waiver, in full or in part, of the Tribe’s

sovereign immunity from unconsented suit.

(Approved by the Hoopa Valley Tribal Council on 9/20/2022 following LPA review)

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