Tribal Voices in the Decision Making Process

The information provided by the Tribal Lands Assistance Center (TLAC) is intended to strengthen Tribal capacity and sovereignty by providing resources that will assist Tribes in identifying when and where they want to engage in the decision-making process of cleaning up contaminated sites. As described in the sections below, all federal agencies are responsible for strengthening government-to-government relationship between the United States and Indian Tribes by engaging in regular and meaningful consultation and collaboration with Tribal officials in decisions that have Tribal implications. The following figure provides an example of five decision points in the Superfund cleanup process at which US Environmental Protection Agency (EPA) regional officials should, at a minimum, document any associated consultation with Tribes in EPA’s Tribal Consultation Tracking System.

Figure 1 in US Government Accountability Office Report: Superfund 2019.

The EPA’s Coordinating with Tribes at Federal Facilities two-hour webinar course for an overview of EPA’s policy on consultation and coordination with Indian Tribes at federal facilities to:

Identify EPA processes and policies for interacting with the Tribes,
Understand the roles of EPA and Tribal governments in Federal Facility cleanups,
Learn about the Federal Facilities Restoration and Reuse Office (FFRRO), and,
Discover EPA resources and tools available to assist Federal Facilities in building partnerships with the Tribes.

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US Consultation & Coordination with Tribal Governments

Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, was issued by President Clinton in 2000: executive departments and agencies are charged with engaging in regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, and are responsible for strengthening the government-to-government relationship between the US federal government and Indian Tribes.

On January 26, 2021, President Biden issued a Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. The Memorandum reaffirms the policy announced in Presidential Memorandum of November 5, 2009 (Tribal Consultation), which directed Federal agencies to develop and periodically revise their tribal consultation policies to ensure that Federal agencies consider Tribal feedback when developing policies that have Tribal implications, consistent with Executive Order 13175.

Government government-to-government relationship is different than the relationship between federal agencies and public stakeholder groups. Engagement with Indian Tribes goes beyond requesting public comment and hosting public meetings by having consultation and coordination between the United States and Indian Tribes. See US Environmental Protection Agency’s (EPA’s) Summary of Executive Order 13175.

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Federal Policies and Guidance

All federal agencies have their own policies and guidance to ensure Tribes have the opportunity to provide meaningful input to be considered prior to federal actions or implementing decisions that may affect Tribes. US agency examples include:

EPA’s Tribal Consultation Tracking System

EPA’s Tribal Consultation Tracking System (TCOTS) tracks information about potential future Tribal consultation opportunities and serves as a repository for consultation-relates documents for active consultations for all EPA programs, including Superfund. You may receive email notifications on upcoming EPA Tribal Consultations by joining the TCOTS Listserv on EPA’s TCOTS webpage.

State Consultation & Coordination with Tribal Governments

The concept of a government-to-government relationship is based on the sovereign status of Tribal governments.

The following is from Government to Government Models of Cooperation Between States and Tribes, prepared by the National Conference of State Legislators. A successful government-to-government relationship between a State agency and one or more Tribes involves several areas of understanding and cooperation:

There is a mutual—and ongoing—understanding between both parties that each is an independent government that works for respective constituencies. As such, the State-Tribal relationship is fundamentally an intergovernmental relationship.
Both States and Tribes understand that the relationship is unique, not only because all Tribal citizens are also State citizens and legislative constituents, but also because of the nature of the Tribal-Federal relationship.
One or more mechanisms exist that facilitate the intergovernmental relationship between the State legislature and Tribal leaders. Such mechanisms allow the States and Tribes to maintain their respective governmental roles and responsibilities and to collaborate when appropriate.
Both sides try to reach agreement on common issues, but recognize that there will likely be some areas of conflict. These areas of conflict should not be allowed to influence the entire intergovernmental relationship.

Although states do not have the same unique legal relationship with Tribes that the federal government does, many states are committed to improving communication and working relationships with Tribes. The following links are examples of ongoing efforts across the US:

Additionally, many states or regions have intertribal councils or related groups that can facilitate communication with the Tribes in the state or region and help document Tribal views and concurrence. See the National Congress of American Indians list of regional Tribal organizations.

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