Secretary Salazar discusses Tribal Consultation Policy with Robert Tippiconnie of the Comanche Tribe, after signing a Secretarial Order implementing the policy.

Federal Tribal Consultation Policy Developments

Rob Capriccioso
12/16/11

WASHINGTON – The U.S. Department of Justice is seeking public comments on a draft tribal consultation policy by December 31.

“Consultation is a formal process through which tribal input is sought regarding the development of new or amended policies, regulations, and legislative actions initiated by the Department of Justice,” according to the draft. “The principle of consultation has its roots in the unique relationship between the Federal government and the governments of federally recognized tribes. This government-to-government relationship has a more than 200 year history, and is built on the foundation of the U.S. Constitution, treaties, legislation, executive action, and judicial rulings. Most recently, tribal consultation was recognized as formal Federal policy in Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments), and President Obama’s Memorandum on Tribal Consultation signed on November 5, 2009.

The full draft is online here.

Justice officials said comments should be sent by e-mail to mailto:USAEO.DOJTribalConsultation@usdoj.gov.

Earlier in December, Secretary of the Interior Ken Salazar and Assistant Secretary-Indian Affairs Larry Echo Hawk announced an official tribal consultation policy for the U.S. Department of the Interior. They said the new policy emphasizes trust, respect and shared responsibility in providing tribal governments an expanded role in informing federal policy that impacts Indian country.

“This comprehensive initiative reflects President Obama’s commitment to strengthening the government-to-government relationship between the United States and tribal nations and recognizing their fundamental right to self-governance,” Salazar said in signing a Secretarial Order implementing the departmental policy. “The new framework institutionalizes meaningful consultation so that tribal leaders are at the table and engaged when it comes to the matters that affect them.”

“Under this policy, consultation will be an open, transparent and deliberative process,” Echo Hawk said. “Forging a strong role for American Indian and Alaska Native tribes at all stages in the government’s decision-making process will benefit Indian country and federal policy for generations to come.”

The policy was developed in coordination with tribal leaders, Interior officials said.

“The consultation policy creates a framework for synchronizing Interior’s consultation practices with its bureaus and offices by providing an approach that applies in all circumstances where statutory or administrative opportunities exist to consult with the tribes – including any regulation, rulemaking, policy, guidance, legislative proposal, grant funding formula change or operational activity that may have a substantial and direct effect on a tribe. Interior bureaus and offices, which are required to designate one or more Tribal Liaison Officers, must examine and change their consultation policies within 180 days to ensure they are consistent with the new departmental policy,” according to an Interior press release.

“Under the policy, Interior officials will identify appropriate tribal consulting parties early in the planning process, provide the tribes a meaningful opportunity to participate in the consultation process, and participate in a manner that demonstrates a commitment and ensures continuity.”

“To increase accountability, bureaus and office heads will implement training, performance standards and comprehensive annual reporting to the Secretary, through his designated Tribal Governance Officer, on the scope, cost and effectiveness of their consultation efforts.”

“Based on information received from the bureaus and offices, the Secretary will provide an annual report to the tribes on the Tribal Consultation Policy. In consultation with the tribes, the Secretary will also establish a joint Federal-Tribal Team to make recommendations on implementing and ensuring continued improvement of the policy.”

The full Interior consultation policy is available here.

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