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Tribal Consultation

II: Tribal Sovereignty

Tribal sovereignty is the basis and reason for tribal consultation. It is the right of tribal governments to self-governance, self-determination and economic self-sufficiency. Tribal sovereignty is defined by the U.S. Department of Transportation as:

“…the unique legal status of federally recognized Indian tribes as set forth in the U. S. Constitution, treaties and Federal statutes, executive orders and court decisions, which establish…tribes, as domestic dependent nations…”[2]

In this, each federally recognized tribe is respected as a sovereign nation that stands equal to the Federal government. This is why any activity between the tribe and the Federal government is defined as a ‘government-to-government’ activity that fosters ‘government-to-government’ relations. Readings on tribal sovereignty and its history are provided in Appendix A.

Federal guiding principles for respecting tribal sovereignty:

  • Operate within a government-to-government relationship with federally recognized tribal governments.
  • Consult with tribal representatives before taking actions that affect federally recognized tribes.
  • Assess the impact of activities on tribal trust resources and assure that tribal interests are considered before activities are undertaken.
  • Remove procedural impediments to working directly with tribal governments.

Recent Federal Mandates. The most recent Federal actions that recognize tribal sovereignty and influence tribal consultation practices are from several sources.

1994: Presidential Memorandum: Government-to-Government Relations with Native American Tribal Governments.

This memorandum requires Federal agencies to undertake consultation in a manner that respects tribal sovereignty. Its guiding principles, shown in the text box, continue today. The memorandum is available at http://www.cms.gov/Outreach-and-Education/American-Indian-Alaska-Native/AIAN/Downloads/Presidential-Memo-April-1994.pdf

1996: Presidential Executive Order No. 13007: Indian Sacred Sites.

This directs Federal agencies to protect triba sacred sites and accommodate tribal access to them. The executive order is available at http://energy.gov/em/downloads/executive-order-13007-indian-sacred-sites-1996

2000: Presidential Executive Order 13175, Consultation and Coordination with Indian Tribal Governments.

This executive order mandates Federal consultation with tribal governments. The executive order is available at http://energy.gov/em/downloads/executive-order-13175-consultation-and-coordination-indian-tribal

TIP #1: Make a copy of the Federal guiding principles. Keep them handy. They will guide and inform your consultation work. Also create a list of Federal government contacts that your tribal leadership may reference on consultation issues and activities.

2009: Presidential Memorandum on Tribal Consultation.

This most recent presidential action affirms Executive Order 13175 (above) stating:

“History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.”

The memorandum is available at http://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president

Practice While You Learn!

Which presidential executive order or memorandum best addresses the hypothetical consultation problem on page 3?

Ask yourself: Should the Tribal Planner inform the Council members and the Elders of these Federal policies and directives?Why?

TIP #2: None of the Federal executive orders or memoranda, discussed above, has been rescinded. In fact, each reinforces the prior one. This strengthens and legitimizes the tribal government’s position, influence, and role in Federal tribal consultations.

TIP # 3: The recognition of tribal sovereignty and the Federal obligation to work with tribes on a government-to-government basis is reserved only for federally recognized tribes.

TIP #4: Tribal Land and Properties: According to 36 CFR PART 800 -- Protection of Historic Properties http://www.achp.gov/regs-rev04.pdf: “Federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes.” Given this, consultation considerations must include tribal land and properties located on the reservation as well as off the reservation.

Updated: 12/19/2013
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