H. R. 2689
IN THE HOUSE OF REPRESENTATIVES
May 25, 2017
Mr. Grijalva (for himself and Mrs. Torres) introduced the following bill; which was referred to the Committee on Natural Resources
To prescribe procedures for effective consultation and coordination by Federal agencies with federally recognized Indian Tribes regarding Federal Government activities that impact Tribal lands and interests to ensure that meaningful Tribal input is an integral part of the Federal decision-making process.
Short title; table of contents
This Act may be cited as the
Requirements, Expectations, and Standard Procedures for Executive Consultation with Tribes Act or the
Table of contents
The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Sense of Congress.
Sec. 4. Definitions.
Title I—Consultation Procedure
Sec. 101. Requirement for consultation.
Sec. 102. Timing.
Sec. 103. Scoping stage consultation.
Sec. 104. Decision stage procedures.
Sec. 105. Documentation and reporting.
Sec. 106. Implementation.
Sec. 107. Sensitive Tribal information.
Title II—Tribal Sovereignty
Sec. 201. Tribal sovereignty.
Title III—Indian Tribal Waivers
Sec. 301. Indian Tribal waivers.
Title IV—Judicial Review
Sec. 401. Judicial review.
Findings and purposes
The Congress finds that—
the United States has a unique, legally affirmed government-to-government relationship with Indian Tribal Governments as set forth in the Constitution of the United States, treaties, statutes, Executive orders, and court decisions;
the United States recognizes the right of Indian Tribes to self-government and supports Tribal sovereignty and self-determination;
the United States, through treaties, statutes, and historical relations, has defined a unique trust relationship and responsibility to protect and support Indian Tribes and Indians;
owing to this trust relationship, the United States has a responsibility to consult with Indian Tribes on a government-to-government basis when formulating policies and undertaking activities that may have impacts on Tribal lands and interests;
procedures for such consultation should be designed and structured to give Indian Tribes opportunities to provide meaningful, informed input throughout the development and decision-making processes;
increasing Federal and Tribal capacities for effective consultation while building institutional knowledge fosters greater efficiency and benefits for future projects;
the consultation process should be institutionalized according to best practices that are designed and administered by the agency and that fulfill the legal requirements mandated by this Act;
consulting with Indian Tribes during the formulation of long-term management plans reduces the likelihood of project delays and increases the efficiency of project implementations; and
effective consultation demands ongoing, respectful communication between agencies and Indian Tribes.
The purposes of this Act are—
to establish and support a process of regular, meaningful consultation and collaboration with Indian Tribes in the development of Federal policies and the initiation of Federal activities that impact Tribal lands and interests;
to strengthen the United States government-to-government relationships with Indian Tribes;
to establish minimum standard procedures to ensure the above goals are achieved; and
to recognize Tribal regulatory authority and jurisdiction generally, and specifically through the waiver process.
Sense of Congress
It is the sense of the Congress that—
consultation constitutes more than simply notifying an Indian Tribe about a planned undertaking;
effective, meaningful consultation requires a two-way exchange of information, a willingness to listen, an attempt to understand and genuinely consider each other’s opinions, beliefs, and desired outcomes, and a seeking of agreement on how to proceed concerning the issues at hand; and
consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn, acknowledge, and respect the positions, perspectives, and concerns of the other parties.
For the purposes of this Act:
The term activity means any agency regulation, rulemaking, policy, guidance, legislative proposal, grant funding formula change, or operational activity that may have a substantial direct effect on an Indian Tribe on matters including—
Tribal cultural practices, lands, resources, or access to traditional areas of cultural or religious importance on federally managed land;
the ability of an Indian Tribe to govern or provide services to its members;
an Indian Tribe’s formal relationship with the agency; or
the consideration of the agency's trust responsibilities to Indian Tribes.
The term agency means any authority of the United States that is an
agency under section 3502(1) of title 44, United States Code.
The term Indian Tribe has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
Memorandum of Agreement
The term memorandum of agreement means a document that records the terms and conditions agreed upon by an agency and an Indian Tribe through the consultation process regarding an activity, including any measures to be taken to resolve or mitigate adverse impacts on the Indian Tribe.
The term new discovery means any unexpected development that occurs during the course of an activity, such as the discovery of a new archeological site, unanticipated impacts on organisms or ecosystems, or the realization of unintended consequences of a new regulation, that may have impacts on Tribal lands and interests.
The term sacred site means any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian Tribe—
as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion; or
to be of established cultural significance.
The term standard process means a streamlined process for agency-Indian Tribe interaction agreed to by both parties through consultation and certified in a memorandum of agreement that applies to certain specified activities or limited categories of activities.
Requirement for consultation
Agencies shall have an accountable process to ensure meaningful and timely input by Indian Tribes and Tribal officials prior to undertaking any activity that may have substantial direct impacts on the lands or interests of one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Consultation with Indian Tribes shall occur for all activities that would affect any part of any Federal land that shares a border with Indian country as defined in section 1151 of title 18, United States Code, but is not limited to activities on such lands.
In the case of agency-drafted proposed legislation, the drafting agency, and any other agency that will be implementing the legislation, shall each be considered involved in the activity. If more than one agency is involved in an activity, some or all of the agencies may designate a lead agency, which shall fulfill their collective consultation responsibilities. Those agencies that do not designate a lead agency shall remain individually responsible for their consultation responsibilities under this Act.
Nothing in this Act shall exempt an agency from additional consultation required under any other law or from taking any other consultative actions as required by any other law or agency prerogative in addition to those required by this Act. Nor does it preclude an agency from additional consultation that complies with agency regulations for consultation, advances agency consultation practices, or supports agency efforts to build or strengthen government-to-government relationships with Indian Tribes.
The agency may temporarily waive the requirements of this title in all or any portion of any emergency area during all or any portion of an emergency period.
Duration of Waiver
A temporary waiver under this subsection shall end upon the termination of the applicable emergency period.
For the purposes of this subsection—
the term emergency area means a geographical area in which there exists an emergency or disaster declared by the President pursuant to the National Emergencies Act (Public Law 94–412) or the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 93–288); and
the term emergency period means the period during which there exists an emergency or disaster declared by the President pursuant to the National Emergencies Act (Public Law 94–412) or the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 93–288).
Consultation under sections 103 and 104 shall be completed before any Federal funds are expended for the activity and before the issuance of any license other than for funding nondestructive project planning activities.
Scoping stage consultation
As early as possible in the planning stage of an activity, the agency shall compile a draft of the scope of the project, including any geographic areas important to Indian Tribes that might be affected and any other anticipated Tribal impacts. The agency shall make a good faith effort to include areas that contain sites important to Indian Tribes whether or not such sites are explicitly known to the agency.
Initial consultation contact
shall send, via United States mail and, if possible, email, a copy of the planning document and a letter requesting consultation meetings to the relevant Tribal Government officials, including the Tribal leader and all members of any elected Tribal governing body, relevant Tribal governmental agencies (including the Tribal Historic Preservation Officer or cultural resource manager), and relevant non-Tribal stakeholders (including the State Historic Preservation Officer and local governments that have jurisdiction on any affected land via agreement with the agency);
at the request of an affected Indian Tribe, shall send, via United States mail and, if possible, email, a copy of the planning document and a letter requesting consultation meetings to nongovernmental Tribal stakeholders, such as elders councils and religious leaders;
shall not request consultation with nongovernmental Tribal stakeholders without the written consent of the affected Indian Tribe; and
shall follow up with phone calls to confirm receipt of the documents by all intended recipients.
Consultation meeting arrangements
The agency shall negotiate with the affected Indian Tribes to determine the time, place, agenda, travel funds, facilitator, format, and goals of a consultation meeting. The agency shall keep thorough documentation of all steps taken to contact and engage the affected Indian Tribes in consultation. If, after a good faith effort, the agency fails to engage the affected Indian Tribes, it may terminate its scoping stage consultation efforts by providing all consultation partners with a written notification and explanation for its decision, signed by the head of the agency, and proceed to the decision stage procedures described in section 104.
Scoping Stage Consultation Meeting
A scoping stage consultation meeting shall begin with confirmation of the format, facilitator, and agenda, with adequate time scheduled for introductions and for interaction throughout the meeting among participants. Whenever possible, Tribal stakeholders shall be brought into the ongoing planning process directly by forming ad hoc workgroups (including Tribal leaders or their designees) and, if appropriate, initiating a process for consensual development of regulations, such as negotiated rulemaking. A scoping stage consultation meeting shall conclude with planning for the next meeting, if necessary.
Termination of scoping stage consultation with a memorandum of agreement
Except as provided by subsection (c), scoping stage consultation shall terminate upon the execution of a memorandum of agreement signed by the head of the agency and the affected Indian Tribal Governments.
The affected Indian Tribal Governments and the agency may jointly invite additional parties to be signatories of the memorandum of agreement. The signatories have sole authority to execute, amend, or terminate the memorandum of agreement. If any signatory determines that the terms of the memorandum of agreement cannot be or are not being carried out, the signatories shall consult to seek amendment of the memorandum of agreement. If the memorandum of agreement is not amended, any signatory may terminate the agreement, with the option to return to scoping stage consultation. The agency shall provide all nonsignatory consulting partners with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that shall become part of the agency’s official consultation record.
The memorandum of agreement—
may address multiple activities if the activities are similar and repetitive or are multistate or regional in scope, or where routine management activities are undertaken at Federal installations, facilities, or other land management units;
may establish standard processes for certain categories of activities determined through consultation and defined in the memorandum of agreement;
shall include a provision for monitoring and reporting on its implementation;
shall include provisions for termination or reconsideration if the activity has not been completed within a specified time; and
shall include provisions to address new discoveries, which may include halting the activity and returning to scoping stage consultation.
Termination of scoping stage consultation without a memorandum of agreement
The agency shall make a good faith effort through sustained interaction and collaboration to reach a consensus resulting in a memorandum of agreement. If, after a good faith effort, the agency determines that further consultation will not be productive, it may terminate consultation by providing all consultation partners with a written notification and explanation for its decision, signed by the head of the agency, and proceed to the decision stage procedures described in section 104. The affected Indian Tribal Governments may at any point decide to terminate consultation. In such case, the agency shall provide the affected Indian Tribal Governments with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that will become part of the agency’s official consultation record.
Decision stage procedures
The agency shall compile a document consisting of the plan for the activity, its anticipated Tribal impacts, any memorandum of agreement, and any written statements made by consulting partners during the scoping stage as described in section 103. The agency shall include sufficient supporting documentation to the extent permitted by law and within available funds to enable any reviewing parties to understand its basis. The agency may use documentation prepared to comply with other laws to fulfill the requirements of this provision to the extent that such documentation is sufficiently pertinent to and focused on the relevant issues as to allow reasonable ease of review. The agency shall mail and, if possible, email a copy of the Proposal Document to all affected Indian Tribal Governments, including those that withdrew from the process. At a minimum, the document shall go to the Tribal leader and all members of any elected Tribal governing body. The agency shall follow up to confirm receipt of the document. After these steps have been completed, the Proposal Document shall be published in the Federal Register, subject to the provisions of section 107.
Public comment period
The agency shall provide a period of not less than 90 days after publication in the Federal Register for comments on the Proposal Document. A 30-day extension shall be granted upon request by any member of any of the affected Indian Tribal governing bodies.
After expiration of the comment period, the agency shall prepare a preliminary decision letter, signed by the head of the agency. The letter shall state the decision to proceed or not proceed with the activity, the decision’s rationale, any changes in the proposal made in response to comments, and any points where the decision conflicts with the expressed requests of any of the affected Indian Tribes. It shall particularly address why the decision was made to disregard any such requests. The agency shall mail and, if possible, email a copy of the letter to all affected Indian Tribal Governments, including those that withdrew from the process. At a minimum, the letter shall go to the Tribal leader and all members of the Tribal governing body. The agency shall follow up to confirm receipt of the letter.
The agency shall provide a 60-day period following the issuance of the preliminary decision letter for response by the affected Indian Tribes. Thereafter, the agency shall notify in writing, signed by the head of the agency, the affected Indian Tribal Governments, including those that withdrew from the process, of the agency’s final decision.
Documentation and reporting
Official consultation record
The agency shall keep an official consultation record that allows accurate tracking of the process so that agencies and consulting parties can correct any errors or omissions, and provides an official record of the process that can be referred to in any litigation that may arise. The agency shall document all efforts to initiate consultation as well as documenting the process once it has begun. Such documentation, including, but not limited to, correspondence, telephone logs, and emails, shall be included in the agency’s official consultation record. The agency shall also keep notes so that the consultation record documents the content of consultation meetings, site visits, and phone calls in addition to information about dates and who participated.
Payment for Tribal documentation work
If the agency asks an Indian Tribe for specific information or documentation regarding the location, nature, and condition of individual sites, to conduct a survey, or in any way fulfill the duties of the agency in a role similar to that of a consultant or contractor, then the agency must pay for such services, if so requested by the Indian Tribe, as it would for any private consultant or contractor.
Report to congress
Each agency shall on a biennial basis submit to Congress a report on its consultation activities.
Not later than 30 days after the date of the enactment of this Act, the head of each agency shall designate an official with principal responsibility for the agency’s review of existing consultation and coordination policies and procedures, and implementation of this Act. Not later than 60 days after the effective date of this order, the designated official shall submit to the Office of Management and Budget a description of the agency’s revised consultation process in conformity with this Act.
Sensitive Tribal information
Notwithstanding any provision of the Administrative Procedures Act, consultation meetings shall be closed to the public at the request of the Indian Tribal Government. Notwithstanding any provision of the Freedom of Information Act, all information designated by the Indian Tribe as sensitive, such as the location of sacred sites or other details of cultural or religious practices, shall be deleted from any public publication made as part of the consultation process or in the process of carrying out the activity. Once information has been designated as sensitive, the agency will determine in consultation with the Indian Tribe who may have access to the information for the purposes of carrying out the activity.
Agencies shall recognize and respect Indian Tribal self-government and sovereignty, honor Tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian Tribal Governments.
Maximum Tribal administrative discretion
With respect to Federal statutes and regulations administered by Indian Tribal Governments, the Federal Government shall grant Indian Tribal Governments the maximum administrative discretion possible.
Alternatives to federal regulation
When undertaking to formulate and implement policies that have Tribal implications, agencies shall—
encourage Indian Tribes to develop their own policies to achieve program objectives;
where possible, defer to Indian Tribes to establish standards; and
in determining whether to establish Federal standards, consult with Tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian Tribes.
Indian Tribal Waivers
Indian Tribal waivers
Agencies shall review the processes under which Indian Tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
Granting maximum Tribal latitude
Each agency shall, to the extent practicable and permitted by law, consider any application by an Indian Tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian Tribal level. Maximum Tribal latitude shall be granted in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.
Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency, or as otherwise provided by law or regulation. If the application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.
This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
An Indian Tribe may seek judicial review of a determination of an agency under this Act in accordance with subchapter II of chapter 5 of title 5, United States Code, and chapter 7 of title 5, United States Code (commonly known as the Administrative Procedure Act), if the Indian Tribe has exhausted all other administrative remedies available to the Indian Tribe.