Consultation With Indian Nations by Ada Pecos Melton

American Indian Development Associates Quarterly

Consultation With Indian Nations

by Ada Pecos Melton

March 2001

Volume 1, Issue 1

Introduction

The sovereign status of Indian nations requires the state and federal government and its agents to conduct relations as articulated by the U.S. Constitution and by Federal actions in treaties, statutes, and court decisions. Together they define the unique government-to-government relationship that exists between the Indian nations and the U.S. government. This relationship has existed since the earliest beginnings of the Federal government to the present. Presidential memorandums and executive orders have continued to acknowledge and support this unique legal relationship between the U.S. government and the Indian nations and have provided guidance for Federal agencies in their interactions with tribes.

Consultation is one way of enacting government-to-government relations because it is a direct dialogue between one or more Indian nations and the U. S. government to discuss issues that impact them or where they may have an interest in the outcome of an agency’s decision. In the last decade, President Clinton reaffirmed the government-to-government relationship with issuance of an Executive Memorandum mandating all executive departments and agencies of the Federal government to engage in meaningful consultation with Federally recognized American Indian and Alaskan Native tribes. [1] This directive strives to ensure respect for the rights of tribal governments to have a say in what the federal or state governments are doing. Through Executive Order 13084, each Federal agency is directed to “…have an effective process to permit elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” [2]

Tribal-federal consultations have been occurring for several decades, mostly between Indian nations and the U.S. Department of the Interior (DOI), Bureau of Indian Affairs (BIA) and the U.S. Department of Health and Human Services (DHHS), Indian Health Service (IHS).

During her appointment, U.S. Attorney General Janet Reno prioritized response to crime, delinquency, violence, and victimization issues in Indian country. Coupled with her support of Indian nations and concern with rising crime, violence and victimization in Indian country, she issued a policy to implement the foregoing presidential order. On June 1, 1995, the Attorney General signed the Department of Justice (DOJ) Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes. This policy articulated the Department's recognition of tribal sovereignty and the DOJ role in fulfilling the Federal trust responsibility, the principles of Indian self-determination and self-governance, and the protection of Indian civil rights, religion and culture.

This policy directs all DOJ components to conduct their activities consistent with the sovereignty and trust principles in their work with the Indian nations especially through consultation with elected or appointed officials and other representatives of Indian nation governments.

Philosophy and Purposes of Consultation

Consultation is a form of communication between two equals; therefore, it is similar to diplomacy between nations.[3] The philosophies for development of tribal consultation policies build upon the political and legal foundations found in state and federal statutes, treaties, and executive orders (See examples listed in Table 1).

Selected Federal & State Policies Supporting Tribal Consultation

EM-Government-to-Government Relations with Native American Tribal Governments

EO-Consultation and Coordination with Indian Tribal Governments

DOJ Policy on Indian Sovereignty and Government-to-Government Relations with the Indian Tribes

DOI Manual-512 American Indian Intergovernmental Relations and Alaska Native Programs Departmental Responsibilities

Health Care Financing Administration guidance letter to States on Consultation with Indian Tribes and Organizations

P.L. 93-638 The Indian Self-determination Act

P.L. 94-437 The Indian Health Care Act

P.L. 95-608 The Indian Child Welfare Act

P.L. 101-630 The Indian Child Protection & Family Violence Prevention Act

The Native American Graves Protection and Repatriation Act

State of New Mexico Policy on Government-to-Government Relations

New Mexico Children's Code 1978 as amended in 1993 and 1999.

*Consultation is one form of implementing government to government relations.

Secondly, consultation philosophies are based on ethical foundations created by the unique relationship between the two sovereigns —the United States and the Indian nations.[4] This relationship is based on the cession of lands by the Indian nations in return for provision of services, annuities and entitlements by the Federal government. Furthermore, Indian nations have an unalienable right to self-government and self-determination. The federal government has a moral obligation and legal responsibility to support the Indian nations in their self-governance efforts and promote consultation and participation with the Indian nations as the mechanism for exchange of information and interaction.

As a natural evolutionary process, the needs of Indian people have changed. Continuous dialogue through consultations with Indian nations is essential for the federal government to stay apprised of the contemporary needs of Indian people. Consultation helps departments and agencies to adjust their responses in fulfilling the Federal trust responsibility.

The nation status of Indian tribes requires a mechanism such as consultation for tribes to have a voice in federal management of their interests. The main purposes of consultation are to provide information, to obtain information, input and/or reaction to federal actions, such as policies, activities, programs and funding.

Elements of Consultation

Often consultation is used to address social, economic, health, law and order, environmental and natural resources, and other targeted issues, interests or topics. Therefore, it is important for state and federal departments, agencies, bureaus and offices to have a consultation policy. Such a policy helps institutionalize tribal consultation as a normal course of action and to guide staff and employees in their interactions with Indian nations and/or their representatives.

Consultation is a formal process for communication with Indian nations that should occur whenever it appears that tribes may have an interest in the outcome of an agency’s action, whether the tribal interest is direct or indirect. [5]

A fundamental element is that consultations must be meaningful to the Indian people. For example, IHS Circular No. 97-07 underscores that, “…Consultation is an enhanced form of communication, which emphasizes trust, respect and shared responsibility .” The policy further states that it is an open and free exchange of information and opinion among parties, which leads to a mutual understanding and comprehension that results in effective collaboration and informed decision making.

Consultation Policy

Foremost, a permanent system for two-way communication between the states or federal agency and Indian nation is essential. If a consultation policy does not exist, it is essential to establish one. Consultations help state and federal departments and agencies to determine the best ways to implement strategies that will help the Indian nation(s). At a minimum, state and federal departments or agencies should have policies consistent with the President’s Executive Order on consultation and include:

  1. Defined purposes, goals and objectives for consultation,
  2. Expected results of consultations with Indian nations,
  3. Clear and effective processes and procedures for conducting consultations with elected or appointed tribal officials and other representatives of tribal governments, which includes:

The policy should have a critical performance element, which includes tribal consultation as a part of departmental performance standards department wide and especially for key administrators and managers.[6] Because of the formality involved in consultation, they should be well planned and executed.

Notice and Obtaining Consent

Consultation defined as a formal dialogue between Indian nations and/or their representatives is distinct and contrasts from two other forms of communication, notice and obtaining consent [7]

Notice focuses on providing information to potentially affected parties so they can respond to a pending action(s). It often does not include consultation or other forms of input before actions and decisions are made. There is often little or no formal follow up to obtain feedback or to use the feedback received.

Obtaining consent often involves narrowly defined focus, goals and objectives. It primarily aims at getting approval or agreement from an Indian nation(s) for some type of state or federal action or activity already decided upon that will have impact on the Indian nation(s).

Important Principles

Respect tribal sovereignty— Consultations are more likely to be successful when departmental staff and employees demonstrate respect for tribal sovereignty. State and federal departments and agencies show respect by taking affirmative steps to become knowledgeable about Indian nations.

Cultural knowledge—Cultural awareness, sensitivity and competency are all essential dimensions of knowledge and understanding that increase the skill and ability of state and federal agents to work effectively with Indian nations. Information should include knowledge of tribal governmental structures and processes, tribal laws, rules and regulations, and (as reasonable and appropriate) tribal customs, traditions and beliefs.

Historical knowledge— Informed state or federal government staffs should also strive to understand how treaties, federal laws, or court decisions are applicable to Indian nations individually or as a group.

Intergovernmental relations— Another important aspect is to understand the applicability of state law to activities occurring on Indian lands. This includes understanding the dynamics of tribal-state relations and knowledge of existing intergovernmental agreements or understandings.

Openness—The caveat to knowledge and understanding acquired before the tribal consultation may contrast, or be in conflict with the views or understandings of the Indian nations(s) being consulted. This means that state and federal officials, staffs and employees must be open-minded at all times and willing to change or adjust their view or position, or understanding, etc. based on their interaction with the tribe(s).

Discussion with Indian nations should be open and candid during consultations so that tribes may evaluate the potential impact a state or federal department or agency’s decision or proposal could have on tribal interests, resources or their communities or citizens.

Respect— At all times, there should be clear respect for differing points of view. It is important to listen patiently and intently and wait to respond until all the views of the Indian nation are stated.

Spirit of cooperation—It is important from the beginning of relationships that there be a commitment to working cooperatively and for the long term.

Footnotes

[1] Executive Memorandum, Government –to-Government Relations with Native American Tribal Governments issued by the White House, April 1994.

[2] Executive Order 13084, Consultation and Coordination with Indian Tribal Governments issued by the White House, May 1998.

[3] McKeown, T.C. The Meaning of Consultation, in Common Ground, Summer/Fall 1997 issue.

[4] Indian Health Service Circular No. 97-07, Tribal Consultation and Participation Policy issued July 1997.

[5] DOI Advisory Memorandum for the Secretary of Interior on Guidance on the Federal/Tribal Government-to-Government Policy, February 1995.

[6] Indian Health Service, Tribal Consultation and Participation Policy, Section 9.

[7] McKeown, T.C. at 3.

Citation: Melton, A.P. (2001) Consultation with Indian Nations, American Indian Development Associates Quarterly Volume 1, Issue 1.

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