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Federal-Tribal Consultation: Background and Issues for Congress

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Federal-Tribal Consultation: Background and
June 12, 2024
Issues for Congress
Mariel J. Murray,
Issues for Congress Updated September 23, 2026 (R48093) Jump to Main Text of Report

Contents

Summary

In recent decades, congressional interest in federal-tribal consultation on federal actions has In recent decades, congressional interest in federal-tribal consultation on federal actions has
Coordinator
grown, especially as some federally recognized Tribes (grown, especially as some federally recognized Tribes (“Tribes”"Tribes") and other Indigenous entities ) and other Indigenous entities
Specialist in Natural
have sought more input into federal decisionmaking. This interest stems, in part, from Tribeshave sought more input into federal decisionmaking. This interest stems, in part, from Tribes’
Resources Policy
' historical connection to historical connection to landsland and resources now owned or managed by the federal government. and resources now owned or managed by the federal government.

Nicole T. Carter
Congress has not established a general tribal consultation mandate. In a variety of contexts, Congress has not established a general tribal consultation mandate. In a variety of contexts,
Specialist in Natural
Members of Congress, Tribes, other Indigenous entities, the Executive, and federal agencies have Members of Congress, Tribes, other Indigenous entities, the Executive, and federal agencies have
Resources Policy
characterized federal-tribal consultation in different ways. Generally, federal-tribal consultation characterized federal-tribal consultation in different ways. Generally, federal-tribal consultation

refers to formal dialogue between official representatives of the federal government and Tribes refers to formal dialogue between official representatives of the federal government and Tribes
(or, in some contexts, other Indigenous entities) that occurs while the federal agency considers or (or, in some contexts, other Indigenous entities) that occurs while the federal agency considers or
Eva Lipiec
Specialist in Natural
undertakes a federal action, as shown below.undertakes a federal action, as shown below.
Resource Policy

Federal-Tribal Consultation Spectrum

Mainon A. Schwartz
Legislative Attorney



Source: CRS.

Source: CRS.

Congress has required federal-tribal consultation in certain situations, such as when federal actions may impact tribal historic, Congress has required federal-tribal consultation in certain situations, such as when federal actions may impact tribal historic,
cultural, and religious sites; however, none of these mandates defines the term cultural, and religious sites; however, none of these mandates defines the term consultation. Therefore, executive branch . Therefore, executive branch
policy largely determines how consultation is performed. Since the 1970s, the executive branch has issued direction to guide policy largely determines how consultation is performed. Since the 1970s, the executive branch has issued direction to guide
federal-tribal consultation. Various federal agencies, including many natural resource agencies, have issued internal federal
consultation policies and have updated their guidance during the Biden Administration.
federal-tribal consultation, and many agencies have issued policies tailored to that direction, including many natural resource agencies. It appears that presidential directives related to tribal consultation from prior Administrations remain in effect during the Trump Administration. However, offices within the Executive Office of the President, such as the Office of Management and Budget, have directed federal agencies to limit tribal consultation in certain contexts. A number of issues arise for Congress related to federal-tribal consultation. These issues include consideration of federal-A number of issues arise for Congress related to federal-tribal consultation. These issues include consideration of federal-
tribal consultation scope, timing, and representation as well as how agencies weigh input from tribal and other Indigenous tribal consultation scope, timing, and representation as well as how agencies weigh input from tribal and other Indigenous
entities. In addition, Congress may consider whether to maintain, expand, or curtail current consultation requirements. Some entities. In addition, Congress may consider whether to maintain, expand, or curtail current consultation requirements. Some
Tribes and other Indigenous entities have asserted that current agency consultation practices are inconsistent and Tribes and other Indigenous entities have asserted that current agency consultation practices are inconsistent and
unenforceable, and they have asked for a government-wide statutory standard. At the same time, Congress and agencies may unenforceable, and they have asked for a government-wide statutory standard. At the same time, Congress and agencies may
find it challenging to find it challenging to balanceweigh these interests against other statutory mandates and priorities. For example, federal-tribal these interests against other statutory mandates and priorities. For example, federal-tribal
consultation processes may delay federal actions.consultation processes may delay federal actions.
Congress may assess current administrative and financial capacity challenges of entities conducting federal-tribal Congress may assess current administrative and financial capacity challenges of entities conducting federal-tribal
consultation. Some federal agencies, Tribes, and other Indigenous entities have identified their limited administrative consultation. Some federal agencies, Tribes, and other Indigenous entities have identified their limited administrative
capacity as hindering meaningful engagement. Whether and how much to fund consultation activities, including evaluating capacity as hindering meaningful engagement. Whether and how much to fund consultation activities, including evaluating
the costs and benefits of existing methods for financing federal-tribal consultation, are also options for Congressthe costs and benefits of existing methods for financing federal-tribal consultation, are also options for Congress’s
's consideration.consideration.
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Contents
Introduction ..................................................................................................................................... 1
Terminology .................................................................................................................................... 2
Federal-Tribal Consultation: Conceptual Framework ..................................................................... 3
Types of Consultation................................................................................................................ 4
Communication ................................................................................................................... 4
Consensus ........................................................................................................................... 5
Consent ............................................................................................................................... 5
Federal-Tribal Consultation Authorities .......................................................................................... 6
Statutory Consultation Requirements........................................................................................ 6
Presidential Directives .............................................................................................................. 8
Federal Agency Policies .......................................................................................................... 10
U.S. Department of the Interior (DOI) .............................................................................. 10
U.S. Department of Agriculture (USDA) .......................................................................... 13
U.S. Army Corps of Engineers (USACE) ......................................................................... 14
National Oceanic and Atmospheric Administration (NOAA) .......................................... 16
Issues and Options for Congress ................................................................................................... 17
Federal Actions Subject to Consultation (“What?”)................................................................ 17
Clarity of Federal-Tribal Consultation Requirements ....................................................... 19
Judicial Enforceability of Federal-Tribal Consultation ..................................................... 20
Representation of the Parties (“Who?”) .................................................................................. 24
Participation of Federal Agencies ..................................................................................... 24
Participation of Tribes and Other Indigenous Entities ...................................................... 25
Timing of consultation (“When?”) .......................................................................................... 26
Agency Consideration of Input Provided by Tribes and Other Indigenous Entities
(“How?”) .............................................................................................................................. 27
Confidentiality of Information Obtained Through Consultation ...................................... 29
Administrative Capacity .......................................................................................................... 30
Federal Funding ...................................................................................................................... 32

Figures
Figure 1. Federal-Tribal Consultation Spectrum ............................................................................. 4
Figure 2. Department of the Interior’s (DOI’s) Consensus-Seeking Model .................................. 12

Tables

Table A-1. Select Legislation That Proposed Establishing Federal-Tribal Consultation
Standards .................................................................................................................................... 35

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Appendixes
Appendix. Select Legislation That Proposed Establishing Federal-Tribal Consultation
Standards .................................................................................................................................... 34

Contacts
Author Information ........................................................................................................................ 37

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Introduction

Introduction

The history of the relationship among the United States, federally recognized Tribes (The history of the relationship among the United States, federally recognized Tribes (“Tribes”),
"Tribes"), and other Indigenous entities is complex.and other Indigenous entities is complex.11 In the In the 18th and 19th18th and 19th centuries, the federal government centuries, the federal government
removed many of these groups from their ancestral homelands through treaties and other means.removed many of these groups from their ancestral homelands through treaties and other means.2
2 Various treaties reserved certain rights to Tribes, such as to continue hunting, fishing, or gathering Various treaties reserved certain rights to Tribes, such as to continue hunting, fishing, or gathering
on lands ceded to the federal government.on lands ceded to the federal government.33 Others included federal-tribal consultation Others included federal-tribal consultation
obligations.obligations.44 The The federal trust responsibility is a legal obligation under which the United States, is a legal obligation under which the United States,
through treaties, acts of Congress, and court decisions, through treaties, acts of Congress, and court decisions, “"has charged itself with moral obligations has charged itself with moral obligations
of the highest responsibility and trustof the highest responsibility and trust”" toward Tribes. toward Tribes.55 The federal trust responsibility can include The federal trust responsibility can include
obligations to protect tribal treaty rights as well as lands, assets, and resources on behalf of obligations to protect tribal treaty rights as well as lands, assets, and resources on behalf of
Tribes.Tribes.
Some Members of Congress, Tribes, and scholars have characterized federal-tribal consultation as Some Members of Congress, Tribes, and scholars have characterized federal-tribal consultation as
an obligation stemming from the federal trust responsibility.an obligation stemming from the federal trust responsibility.66 This trust responsibility underpins This trust responsibility underpins
many congressional and executive branch authorities directing agencies to conduct federal-tribal many congressional and executive branch authorities directing agencies to conduct federal-tribal
consultation on federal actions.consultation on federal actions.77 For example, Congress has mandated federal-tribal consultation For example, Congress has mandated federal-tribal consultation
when federal actions may impact tribal and Indigenous historic, cultural, and religious sites.when federal actions may impact tribal and Indigenous historic, cultural, and religious sites.8
8 Since the 1970s, the executive branch has also issued direction to guide federal-tribal Since the 1970s, the executive branch has also issued direction to guide federal-tribal
consultation.9 During the Biden Administration, many federal departments and agencies with
natural-resource-related statutory missions have issued updated guidance to reflect
Administration priorities of generally increasing tribal consultation opportunities, as outlined in
the “Presidential Directives” section below. This report focuses on federal departments and
agencies with natural-resource-related statutory missions.
consultation, and many agencies have issued policies tailored to that direction.9 In recent decades, many Tribes and other Indigenous entities have advocated for a more robust In recent decades, many Tribes and other Indigenous entities have advocated for a more robust
role in federal decisionmaking. Many Tribes and other Indigenous entities maintain ongoing

1 A federally recognized Tribe (“Tribe”) is an American Indian or Alaska Native entity that is recognized as having a
government-to-government relationship with the United States. See the “Terminology” section for more information
about Tribes and other Indigenous entities.
2 Prior to about 1871, the governments of the 13 original colonies and, subsequently, the United States government
negotiated tribal treaties. See National Archives, “Native American Heritage: American Indian Treaties,” at
https://www.archives.gov/research/native-americans/treaties.
3 For example, the Treaty Between the United States of America and the Nez Percé Indians, U.S.-Nez Percé Tribe, art.
III, June 11, 1855, 12 Stat. 957, 958, gave the Tribe “the right of taking fish at all usual and accustomed places.”
4 For example, the Treaty with the Kaskaskias, etc., U.S.-United Tribes of Kaskaskia & Peoria, Piankeshaw & Wea
Indians, art. 7, May 30, 1854, 10 Stat. 1082, 1084, required the President to consult with the Tribes about annual
payments. This report will not address specific treaty provisions regarding consultation.
5 Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942). For a detailed discussion of the connection between
the federal trust responsibility and consultation, see Colette Routel and Jeffrey Holth, “Toward Genuine Tribal
Consultation in the 21st Century,” University of Michigan Journal of Law Reform, vol. 46, no. 417 (2013), pp. 434,
454-456 (hereinafter Routel & Holth, “Genuine Consultation”).
6 See Statement of Rep. Nick J. Rahall, “Introduction of the Consultation and Coordination with Indian Tribal
Governments Act,” House debate, Congressional Record, daily edition, vol. 154, part 43 (March 13, 2008), pp. E383-
E384. See also Statement of National Congress of American Indians (NCAI), legislative hearing on H.R. 3490, H.R.
3522, H.R. 5608, H.R. 5680, and S. 2457, 110th Cong., 2nd sess., April 9, 2008, H.Hrg. 41-818 (Washington: GPO,
2008), p. 83 (hereinafter H.R. 5608 hearing).
7 For purposes of this report, federal action includes federal decisions, policies, activities, and funding in addition to
other actions of federal agencies.
8 See, e.g., the National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et seq.).
9 See, e.g., Executive Order 13084, “Consultation and Coordination with Indian Tribal Governments,” May 14, 1998, at
https://www.justice.gov/archive/otj/Presidential_Statements/presdoc3.htm (hereinafter E.O. 13084).
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role in federal decisionmaking. Many Tribes and other Indigenous entities maintain ongoing physical, cultural, spiritual, and economic relationships with their homelands, even if they no physical, cultural, spiritual, and economic relationships with their homelands, even if they no
longer live on or near those lands.longer live on or near those lands.1010 From their perspective, federal-tribal consultation may be From their perspective, federal-tribal consultation may be
essential to protecting those relationships, perhaps especially when unique natural features or essential to protecting those relationships, perhaps especially when unique natural features or
resources are involved and become the potential subjects of federal action. At the same time, resources are involved and become the potential subjects of federal action. At the same time,
Congress and agencies may find it challenging to Congress and agencies may find it challenging to balanceweigh tribal and other Indigenous entity tribal and other Indigenous entity
interests with other statutory mandates and congressional priorities.interests with other statutory mandates and congressional priorities.
This report begins by providing a conceptual framework for federal-tribal consultation, including This report begins by providing a conceptual framework for federal-tribal consultation, including
a description of different types of consultation that entail varying degrees of tribal and other a description of different types of consultation that entail varying degrees of tribal and other
Indigenous entity input in federal actions. The report includes an overview of selected statutory Indigenous entity input in federal actions. The report includes an overview of selected statutory
and administrative authorities for conducting federal-tribal consultation and selected natural and administrative authorities for conducting federal-tribal consultation and selected natural
resource agenciesresource agencies’' policies on federal-tribal consultation. It concludes with potential policies on federal-tribal consultation. It concludes with potential
considerations for Congress, including an overview of recent legislative activities and options for considerations for Congress, including an overview of recent legislative activities and options for
addressing federal-tribal consultation. This report covers the topic of consultation broadly, but it addressing federal-tribal consultation. This report covers the topic of consultation broadly, but it
is not a comprehensive discussion. For example, tribal co-management or co-stewardship—when is not a comprehensive discussion. For example, tribal co-management or co-stewardship—when
Tribes and other Indigenous entities play a long-term, formal role in managing federal lands—is Tribes and other Indigenous entities play a long-term, formal role in managing federal lands—is
beyond the scope of this report.beyond the scope of this report.1111
Terminology
Tribal terminology may vary by statute. This report uses terms and phrases as follows:Tribal terminology may vary by statute. This report uses terms and phrases as follows:
• Alaska Native. Per the Alaska Native Claims Settlement Act (ANCSA; 43 Per the Alaska Native Claims Settlement Act (ANCSA; 43
U.S.C. §§1601 et seq.), this term generally refers to citizens of the United States U.S.C. §§1601 et seq.), this term generally refers to citizens of the United States
who are who are “"one-fourth degree or more Alaska Indian (including Tsimshian Indians one-fourth degree or more Alaska Indian (including Tsimshian Indians
not enrolled in the Metlaktla Indian Community) Eskimo, or Aleut blood, or not enrolled in the Metlaktla Indian Community) Eskimo, or Aleut blood, or
combination thereof.combination thereof.”12
• "12 Alaska Native Corporation (ANC). ANCSA divided the state of Alaska into 12 ANCSA divided the state of Alaska into 12
geographic regions and allowed Alaska Native Tribes to form Village and geographic regions and allowed Alaska Native Tribes to form Village and
Regional ANCs, which are for-profit corporations that may own and manage Regional ANCs, which are for-profit corporations that may own and manage
resources for the benefit of their Alaska Native resources for the benefit of their Alaska Native shareholders.13 ANCsshareholders.13 ANCs themselves themselves
are not Tribes, although there are 228 are not Tribes, although there are 228 TribesTribes located within ANC boundaries located within ANC boundaries.14.14
They are included in They are included in “"other Indigenous entitiesother Indigenous entities”" for purposes of this report. for purposes of this report.
• Tribe. This term refers toThis term refers to any “ any "Indian or Alaska Native tribe, band, nation, Indian or Alaska Native tribe, band, nation,
pueblo, village or community that the Secretary of the Interior acknowledges to pueblo, village or community that the Secretary of the Interior acknowledges to
exist as an Indian tribeexist as an Indian tribe”" under the Federally Recognized Indian Tribe List Act of under the Federally Recognized Indian Tribe List Act of
1994 (25 U.S.C. 1994 (25 U.S.C. §§479a).479a).
• Native Hawaiian. This term refers to This term refers to anyany individual who is a descendant of the individual who is a descendant of the
Indigenous people who, prior to 1778, Indigenous people who, prior to 1778, “"occupied and exercised sovereignty in the area that now constitutes the State of Hawaii."15 They are included in "other Indigenous entities" for purposes of this report. occupied and exercised sovereignty in

10 Monte Mills and Martin Nie, “Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal
Co-management on Federal Public Lands,” Public Land & Resources Law Review, vol. 44 (2021), p. 1, at
https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1741&context=plrlr (hereinafter Mills & Nie, “Bridges”).
11 For more information on co-management, see CRS Report R47563, Tribal Co-management of Federal Lands:
Overview and Selected Issues for Congress, by Mariel J. Murray.
12 ANCSA defines the term “Native” and uses that terminology throughout (43 U.S.C. §1602).
13 43 U.S.C. §§1601 et seq.
14 Department of the Interior (DOI), Bureau of Indian Affairs (BIA), “Alaska Region,” at https://www.bia.gov/regional-
office/alaska-region.
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the area that now constitutes the State of Hawaii.”15 They are included in “other
Indigenous entities” for purposes of this report.
• Native Hawaiian Organization (NHO). This term refers to any organization
that (1) “Native Hawaiian Organization (NHO). This term refers to any organization that (1) "serves and represents the interests of Native Hawaiians,serves and represents the interests of Native Hawaiians,”" (2) has (2) has “"as a as a
primary and stated purpose the provision of services to Native Hawaiians,primary and stated purpose the provision of services to Native Hawaiians,”" and and
(3) has (3) has “"demonstrated expertise in aspects of historic preservation that are demonstrated expertise in aspects of historic preservation that are
significant to Native Hawaiians.significant to Native Hawaiians.”16 "16 They are included in They are included in “"other Indigenous other Indigenous
entities”entities" for purposes of this report. for purposes of this report.
• Other Indigenous Entities. Entities. This term refers toThis term refers to
• entities that are affiliated with Tribes (e.g., tribal organizations) andentities that are affiliated with Tribes (e.g., tribal organizations) and
• descendants of groups that are not currently federally recognized but that descendants of groups that are not currently federally recognized but that
inhabited the lands now comprising the United States when people of inhabited the lands now comprising the United States when people of
different cultures or ethnic origins arrived.different cultures or ethnic origins arrived.17 17 For purposes of this report, this For purposes of this report, this
term includes Native Hawaiians, NHOs, ANCs, and state-recognized Tribes.term includes Native Hawaiians, NHOs, ANCs, and state-recognized Tribes.
• State-Recognized Tribe State-Recognized Tribe. This term refers to This term refers to TribesTribes that are not federally that are not federally
recognized but have been acknowledged by state law and sometimes reside on recognized but have been acknowledged by state law and sometimes reside on
state-recognized state-recognized reservations.18 reservations.18 They are considered They are considered “"other Indigenous entitiesother Indigenous entities”
" for purposes of this report.for purposes of this report.
• Tribal Land Tribal Land. This termThis term generally refers to land or an interest in land that is generally refers to land or an interest in land that is
owned by a Tribe or tribal member or by the U.S. government on behalf of a owned by a Tribe or tribal member or by the U.S. government on behalf of a
Tribe or tribal member.Tribe or tribal member.1919
Federal-Tribal Consultation: Conceptual Framework
There is no single, statutory definition of federal-tribal consultation, and Members of Congress, There is no single, statutory definition of federal-tribal consultation, and Members of Congress,
Tribes, other Indigenous entities, and federal agencies have interpreted and used the term in Tribes, other Indigenous entities, and federal agencies have interpreted and used the term in
different ways. In this report, different ways. In this report, federal-tribal consultation refers to formal dialogue between refers to formal dialogue between
official representatives of the federal government and Tribes (or, in some circumstances, other official representatives of the federal government and Tribes (or, in some circumstances, other
Indigenous entities) that can occur at various points while the federal agency is considering or Indigenous entities) that can occur at various points while the federal agency is considering or
undertaking a federal action.undertaking a federal action.2020 This section presents a conceptual framework for understanding This section presents a conceptual framework for understanding
various approaches to federal-tribal consultation.

15 This report uses the NHPA’s definition of “Native Hawaiian” (54 U.S.C. §300313).
16 This report uses NHPA’s definition of “Native Hawaiian Organization” (54 U.S.C. §300314).
17 The term Indigenous is not consistently defined in the international or domestic legal context. Some entities, such as
the United Nations, have developed general guidelines for identifying Indigenous groups based on a variety of factors
(see United Nations, “Who Are Indigenous Peoples?” fact sheet, at https://www.un.org/esa/socdev/unpfii/documents/
5session_factsheet1.pdf).
18 Cohen’s Handbook of Federal Indian Law (Washington, DC: LexisNexis, 2012), “Chapter 3: Indian Tribes, Indians,
and Indian Country, §3.02.”
19 Often, statutory or regulatory text specifically define what constitutes tribal land or Indian land for its purposes. For
information on tribal land types, see CRS Report R46647, Tribal Land and Ownership Statuses: Overview and Selected
Issues for Congress, by Mariel J. Murray.
20 BIA, “What Is Tribal Consultation?” at https://www.bia.gov/service/tribal-consultations/what-tribal-consultation.
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Federal-Tribal Consultation: Background and Issues for Congress

Types of Consultation
various approaches to federal-tribal consultation. Types of Consultation Federal-tribal consultation may involve different degrees of tribal or other Indigenous entity input Federal-tribal consultation may involve different degrees of tribal or other Indigenous entity input
in federal decisionmaking. This section presents a spectrum of potential types of federal-tribal in federal decisionmaking. This section presents a spectrum of potential types of federal-tribal
consultations, as illustrated inconsultations, as illustrated in Figure 1.

Figure 1. Federal-Tribal Consultation Spectrum
Consultation Related to Federal Actions That May Impact Tribes and Other Indigenous EntitiesConsultation Related to Federal Actions That May Impact Tribes and Other Indigenous Entities

Source: CRS.CRS.
Notes: FederalFederal actions include federal decisions, policies, activities, and funding. s include federal decisions, policies, activities, and funding. Consent in this context means in this context means
free, prior, and informed consent, as described in an international human rights principle from the United free, prior, and informed consent, as described in an international human rights principle from the United
Nations Declaration on the Rights of Indigenous Peoples (https://www.un.org/development/desa/indigenousNations Declaration on the Rights of Indigenous Peoples (https://www.un.org/development/desa/indigenous
peoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf). The categories are not defined in statute peoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf). The categories are not defined in statute
and are meant to illustrate different types of consultation activities, ranging from less to more tribal or other and are meant to illustrate different types of consultation activities, ranging from less to more tribal or other
Indigenous entity input in federal actions.Indigenous entity input in federal actions.
As will be discussed later in the report, existing federal-tribal consultation authorities may fall As will be discussed later in the report, existing federal-tribal consultation authorities may fall in
into different places along this spectrum, and not all points on the spectrum may be currently different places along this spectrum, and not all points on the spectrum may be currently
represented in law.represented in law.
Communication
Communication methods for federal-tribal consultation are not specified in statute. Therefore, Communication methods for federal-tribal consultation are not specified in statute. Therefore,
federal agencies have varying methods for communicating with Tribes, as outlined below in federal agencies have varying methods for communicating with Tribes, as outlined below in
"“Federal Agency Policies.” Some." Some agencies have considered their federal-tribal consultation agencies have considered their federal-tribal consultation
obligations met through one-way communication with Tribesobligations met through one-way communication with Tribes, , for example, by providing a public for example, by providing a public
notice outlining potential agency actions in the notice outlining potential agency actions in the Federal Register..21 Other21 Other agencies agencies have required have required
additional opportunities for tribal and otheradditional opportunities for tribal and other Indigenous entity input in decisionmaking.22 Indigenous entity input in decisionmaking.22 Agency Agency
federal-tribal consultation federal-tribal consultation processesprocesses can also involve a period for written comments can also involve a period for written comments on public notices; in-person or virtual national, regional, or area-specific meetings; on public

21 Routel & Holth, “Genuine Consultation,” pp. 454-456.
22 Ibid.
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notices; in-person or virtual national, regional, or area-specific meetings; or other possible
methods.23
or other possible methods.23 Consensus
Congress has issued some direction to federal agencies on how to consider input from Tribes and Congress has issued some direction to federal agencies on how to consider input from Tribes and
other Indigenous entities in decisionmaking but has not generally required consensus. In this other Indigenous entities in decisionmaking but has not generally required consensus. In this
scenario, parties engage in a dialogue to reach a mutually agreeable course of action. Consensus scenario, parties engage in a dialogue to reach a mutually agreeable course of action. Consensus
requires unanimous consent but does not preclude negotiation and compromise.24requires unanimous consent but does not preclude negotiation and compromise.24 Some Tribes, Some Tribes,
other Indigenous entities, and federal agencies have expressed that the goal of federal-tribal other Indigenous entities, and federal agencies have expressed that the goal of federal-tribal
consultation should be reaching consensus.consultation should be reaching consensus.2525
Consent
Under current law, certain federal actions on tribal lands—for example, the establishment of Under current law, certain federal actions on tribal lands—for example, the establishment of
rights of way—require the consent of tribal officials.rights of way—require the consent of tribal officials.2626 Some Tribes and other Indigenous entities Some Tribes and other Indigenous entities
have asked agencies to obtain their have asked agencies to obtain their free, prior, and informed consent (FPIC) for federal actions for federal actions
more broadly as part of the federal-tribal consultation process.more broadly as part of the federal-tribal consultation process.2727 FPIC is an international human FPIC is an international human
rights principle from the United Nations Declaration on the Rights of Indigenous Peoples rights principle from the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP).28 The Biden Administration has described UNDRIP as “not legally binding or a
statement of current international law” but having “both moral and political force.”29(UNDRIP).28 The term The term’s
's components are summarized as follows:components are summarized as follows:
• Free. anFree: An Indigenous community participates in consultation without intimidation, Indigenous community participates in consultation without intimidation,
coercion, or manipulation.coercion, or manipulation.
• Prior. federal Prior: Federal-tribal consultation occurs as early as possible in the formulation of -tribal consultation occurs as early as possible in the formulation of
the federal proposal.the federal proposal.
• Informed. the Informed: The information provided to the Indigenous community is sufficiently information provided to the Indigenous community is sufficiently
quantitative and qualitative, as well as objective, accurate, and clear.

23 See, e.g., DOI, “Departmental Manual: Procedures for Consultation with Indian Tribes,” November 30, 2022, p. 3, at
https://www.bia.gov/sites/default/files/dup/tcinfo/512-dm-5-final_508.pdf.
24 Judith Stein, “Decisionmaking Models,” Massachusetts Institute for Technology, Human Resources, at
https://hr.mit.edu/learning-topics/teams/articles/models.
25 See, e.g., BIA, “Compilation of Comments Received on Updates to Consultation Policy 512 DM 4 and 5,” p. 5,
November 2022, at http://www.bia.gov/sites/default/files/dup/tcinfo/comment-summary-consultation-policy-512-dm-4-
and-5-final_508_0.pdf (“Several Tribes agreed with the intent of the consensus-seeking model.”) (hereinafter BIA,
“DM Comments”). See also DOI, “Departmental Manual: Department of the Interior Policy on Consultation with
Indian Tribes,” November 30, 2022, p. 3, at https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf
(hereinafter DOI, “Consultation DM”).
26 25 U.S.C. §324.
27 See, e.g., BIA, “DM Comments,” p. 6 (“Tribes commented that rather than adopt the ‘consensus-seeking model,’ the
Biden Administration should adopt a tribal consultation policy based on the FPIC standard.”).
28 United Nations General Assembly, “United Nations Declaration on the Rights of Indigenous Peoples:
Resolution/Adopted by the General Assembly,” A/RES/61/295, 2 October 2007, Articles 19 and 32, at
https://www.refworld.org/legal/resolution/unga/2007/en/49353 (hereinafter UNDRIP).
29 White House Council on Native American Affairs, “Best Practices for Identifying and Protecting Tribal Treaty
Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal Decision-Making,”
November 30, 2022, p. 9, at https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf
(hereinafter White House, “Best Practices Guide”).
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• Consent.quantitative and qualitative, as well as objective, accurate, and clear. Consent: Indigenous community consent is given through an explicit statement Indigenous community consent is given through an explicit statement
of agreement when the process has met the other criteria (free, prior, and of agreement when the process has met the other criteria (free, prior, and
informed).informed).30
29Under the FPIC framework, Tribes and other Indigenous entities must have full information, time, Under the FPIC framework, Tribes and other Indigenous entities must have full information, time,
and resources to consider federal actions in advance and the opportunity to give or withhold their and resources to consider federal actions in advance and the opportunity to give or withhold their
consent.consent.3130 UNDRIP articulates that government actors UNDRIP articulates that government actors “"shall consult and cooperate in good faithshall consult and cooperate in good faith”
" with Tribes and Indigenous peoples to obtain FPIC with Tribes and Indigenous peoples to obtain FPIC “"before adopting and implementing legislative before adopting and implementing legislative
or administrative measures that may affect them.or administrative measures that may affect them.”32"31 UNDRIP states that it is important that UNDRIP states that it is important that
government actors obtain FPIC government actors obtain FPIC “"prior to the approval of any project affecting [Indigenous] lands prior to the approval of any project affecting [Indigenous] lands
or territories and other resources, particularly in connection with the development, utilization or or territories and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.exploitation of mineral, water or other resources.”33 "32 The FPIC standard, if codified into U.S. law, The FPIC standard, if codified into U.S. law,
might provide Tribes and other Indigenous entities with greater influence. If Tribes disagree with might provide Tribes and other Indigenous entities with greater influence. If Tribes disagree with
a proposed action, they could potentially withhold their consent. Although the United States a proposed action, they could potentially withhold their consent. Although the United States in
2011has expressed support for UNDRIP, it has not formally adopted or codified the FPIC principle. expressed support for UNDRIP, it has not formally adopted or codified the FPIC principle.34
33 Federal-Tribal Consultation Authorities
Agencies may be authorized or required to consult with Tribes and other Indigenous entities Agencies may be authorized or required to consult with Tribes and other Indigenous entities
pursuant to various authorities. A selection of legislative and administrative authorities pursuant to various authorities. A selection of legislative and administrative authorities are
is provided below. Treaties and agreements between an agency and a Tribe may also shape when provided below. Treaties and agreements between an agency and a Tribe may also shape when
and how consultation occurs in specific situations; however, a discussion of those authorities is and how consultation occurs in specific situations; however, a discussion of those authorities is
beyond the scope of this report.beyond the scope of this report.
Statutory Consultation Requirements
In the 1970s, Congress ushered in a new era of federal-tribal relations with a series of laws In the 1970s, Congress ushered in a new era of federal-tribal relations with a series of laws
providing for tribal self-determination and federal-tribal consultation. First, the Indian Self-providing for tribal self-determination and federal-tribal consultation. First, the Indian Self-
Determination and Education Assistance Act (ISDEAA; 25 U.S.C. §§5301 et seq.) outlined Determination and Education Assistance Act (ISDEAA; 25 U.S.C. §§5301 et seq.) outlined
federal policy on tribal self-determination, including the federal policy on tribal self-determination, including the “"effective and meaningful participation effective and meaningful participation
by the Indian people in the planning, conduct, and administration ofby the Indian people in the planning, conduct, and administration of”" federal programs and federal programs and
services.services.3534 Around that time, Congress also started to provide for Indigenous input in federal Around that time, Congress also started to provide for Indigenous input in federal
decisionmaking through laws requiring federal agencies to consult with Tribes before undertaking

30 United Nations General Assembly, Human Rights Council, “Free, Prior and Informed Consent: A Human Rights-
Based Approach—Study of the Expert Mechanism on the Rights of Indigenous Peoples,” August 10, 2018, pp. 6-9, at
https://www.ohchr.org/en/documents/thematic-reports/free-prior-and-informed-consent-human-rights-based-approach-
study-expert.
31 Native American Rights Fund, University of Colorado Boulder, and University of California, Los Angeles School of
Law, “Tribal Implementation Toolkit,” pp. 28-32, at https://un-declaration.narf.org/wp-content/uploads/Tribal-
Implementation-Toolkit-Digital-Edition.pdf. Some Tribes have incorporated the free, prior, and informed consent
(FPIC) framework into tribal law, setting forth tribal consultation expectations for federal agencies.
32 UNDRIP, Article 19.
33 UNDRIP, Article 32.
34 See U.S. Department of State, “Announcement of U.S. Support for the United Nations Declaration on the Rights of
Indigenous Peoples,” January 12, 2011, at https://2009-2017.state.gov/s/srgia/154553.htm (The U.S. State Department
has interpreted FPIC to signify “a process of meaningful consultation with tribal leaders, but not necessarily the
agreement of those leaders, before the actions addressed in those consultations are taken.”).
35 25 U.S.C. §5302(b).
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certain federal actions.36decisionmaking through laws requiring federal agencies to consult with Tribes before undertaking certain federal actions.35 A selection of these statutory authorities is listed below A selection of these statutory authorities is listed below in alphabetical
order:37
• :36American Indian Religious Freedom Act of 1978 (AIRFA;; 42 U.S.C. §§1996
et seq.). This legislation expresses the policy of the United States to protect the This legislation expresses the policy of the United States to protect the
right of American Indians, Alaska Natives, and Native Hawaiians to right of American Indians, Alaska Natives, and Native Hawaiians to “"believe, believe,
express, and exerciseexpress, and exercise”" traditional religions and religious practices, including traditional religions and religious practices, including
access to sites and use and possession of sacred objects.access to sites and use and possession of sacred objects.3837 AIRFA instructs the AIRFA instructs the
President to direct federal agencies to evaluate their policies and procedures, in President to direct federal agencies to evaluate their policies and procedures, in
consultation with native traditional religious leaders, to preserve Native consultation with native traditional religious leaders, to preserve Native
American religious cultural rights and practices.American religious cultural rights and practices.39
• Archaeological38 Archaeological Resources Protection Act of 1979 (ARPA; (ARPA; 16 U.S.C. §§470aa--
470mm). ARPA expresses Congress ARPA expresses Congress’'s intent to protect archaeological resources s intent to protect archaeological resources
on public lands and tribal lands. ARPA directs the Secretaries of the Interior, on public lands and tribal lands. ARPA directs the Secretaries of the Interior,
Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley
Authority to consult with Tribes, among other entities, before issuing Authority to consult with Tribes, among other entities, before issuing
implementing regulations.implementing regulations.40
• 39 National Historic Preservation Act of 1966 (NHPA;; 54 U.S.C. §§300101 et
seq.). The NHPA outlines a process for federal agencies to follow when projects The NHPA outlines a process for federal agencies to follow when projects
may affect certain historic resources. Among other things, Section 106 of the may affect certain historic resources. Among other things, Section 106 of the
NHPA requires federal agencies to take into account the effects of projects they NHPA requires federal agencies to take into account the effects of projects they
undertake (carry out, authorize, or financially assist) on historic properties.(carry out, authorize, or financially assist) on historic properties.4140 As As
part of that consideration, federal agencies must consult with any Tribe or NHO part of that consideration, federal agencies must consult with any Tribe or NHO
that that “"attaches religious and cultural significanceattaches religious and cultural significance”" to historic properties to historic properties
potentially affected by the undertaking.potentially affected by the undertaking.42
• 41 Native American Graves Protection and Repatriation Act (NAGPRA;
25 ; 25 U.S.C. §§3001 et seq.). NAGPRA requires museums and federal agencies to NAGPRA requires museums and federal agencies to
identify Native American human remains, funerary items, and objects of cultural identify Native American human remains, funerary items, and objects of cultural
significance in their collections and on federal lands and to consult with Tribes significance in their collections and on federal lands and to consult with Tribes
and NHOs to repatriate them.43

36 See, e.g., National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et seq.), National Environmental
Policy Act of 1970 (NEPA; 42 U.S.C. §§4321 et seq.), and Archaeological Resources Protection Act of 1979 (ARPA;
16 U.S.C. §§470aa-470mm).
37 For a more comprehensive list of federal-tribal consultation requirements in federal statutes and regulations, see
Derek C. Haskew, “Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or
Another Badge of Shame?” American Indian Law Review, vol. 24, no. 1 (1999), pp. 21-23.
38 42 U.S.C. §1996.
39 42 U.S.C. §1996 note.
40 16 U.S.C. §470ii.
41 54 U.S.C. §306108. The Advisory Council on Historic Preservation (ACHP) oversees the NHPA §106 review
process. Created by NHPA, the ACHP is an independent agency consisting of federal, state, and tribal government
members, as well as experts in historic preservation and members of the public. For more information about NHPA’s
federal-tribal consultation requirements, see CRS Report R47543, Historic Properties and Federal Responsibilities: An
Introduction to Section 106 Reviews, by Mark K. DeSantis.
42 54 U.S.C. §302706(b). In its NHPA implementing regulations, the ACHP defined consultation as “the process of
seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement” with them
through this process (36 C.F.R. §800.16).
43 See generally 25 U.S.C. §§3001 et seq. Native American is defined as a “Tribe, people, or culture that is indigenous
to the United States” (25 U.S.C. §3001(9)). For more information on NAGPRA requirements, see CRS In Focus
(continued...)
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• and NHOs to repatriate them.42 The Safeguard Tribal Objects of Patrimony Act of 2021 (STOP Act;
25 ; 25 U.S.C. §§3071 et seq.). The STOP Act prohibits the export of cultural items The STOP Act prohibits the export of cultural items
covered under NAGPRA and ARPA and increases penalties for stealing and covered under NAGPRA and ARPA and increases penalties for stealing and
illegally trafficking such items.illegally trafficking such items.4443 It also creates an export certification system It also creates an export certification system
whereby anyone seeking to export an item that qualifies as a Native American whereby anyone seeking to export an item that qualifies as a Native American
cultural item (under NAGPRA) or archaeological resource (under ARPA) must cultural item (under NAGPRA) or archaeological resource (under ARPA) must
apply for a certification.apply for a certification.45 The act44 The act directs the Secretary of the Interior to convene directs the Secretary of the Interior to convene
an advisory an advisory “"Native working groupNative working group”" consisting of at least 12 representatives of consisting of at least 12 representatives of
Tribes and Tribes and NHOs to develop the certification system.45Presidential Directives NHOs to develop the certification system.46
National Environmental Policy Act Regulations
Agency regulations implementing statutory directives sometimes contemplate or require tribal consultations even
when not expressly mentioned by the governing statute. For example, the National Environmental Policy Act
(NEPA; 42 U.S.C. §§4321 et seq.) generally requires federal agencies to consider the potential impacts of their
actions on the human environment. For proposed actions likely to affect one or more Tribes, the Council on
Environmental Quality regulations direct federal agencies to consult early in the planning process with Tribes
whose involvement is reasonably foreseeable. Agencies must invite likely affected Tribes to participate in the
scoping of issues and request comments. Through an agreement with the lead federal agency for a proposed
action, a Tribe also may become a cooperating agency, which includes opportunities for participation in the lead
agency’s NEPA process.
Sources: 42 U.S.C. §§4321-4327, 40 C.F.R. §1501.2(b)(4)(ii), 40 C.F.R. §1501.8(a), 40 C.F.R. §1501.9(b), and
40 C.F.R. §1503.1. For an overview of NEPA environmental reviews, see CRS In Focus IF12417, Environmental
Reviews and the 118th Congress, by Kristen Hite.
Presidential Directives
Since the 1970s, the executive branch has issued many directives about federal-tribal consultation Since the 1970s, the executive branch has issued many directives about federal-tribal consultation
to federal agencies; a chronological list of selected presidential actions is below.to federal agencies; a chronological list of selected presidential actions is below.47
• Executive Order 13084, “46 Executive Order 13084, "Consultation and Coordination with Indian Tribal
Governments” (E.O.Governments" (EO 13084). Issued by President Clinton in 1998, this order Issued by President Clinton in 1998, this order
mandates that agencies consult with Tribes in developing regulations and mandates that agencies consult with Tribes in developing regulations and
consider increasing the flexibility of waiver of statutory or regulatory consider increasing the flexibility of waiver of statutory or regulatory
requirements for Tribes.requirements for Tribes.48
• 47 Executive Order 13175, ", “Consultation and Coordination with Indian Tribal
Governments” (E.O.Governments" (EO 13175). Issued by President Clinton in 2000, this order Issued by President Clinton in 2000, this order
mandates consultation with Tribes when federal agency policies involve mandates consultation with Tribes when federal agency policies involve
regulations, proposed legislation, or other policy actions that have a regulations, proposed legislation, or other policy actions that have a “"substantial direct effect" on Tribes or "tribal implications."48 EO 13175 requires agencies to develop a process to ensure "meaningful and timely input."49 In addition, it directs agencies to review processes under which Tribes may apply for waivers of statutory and regulatory requirements and "take appropriate steps to streamline those processes."50 substantial

IF12523, Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions, by
Mark K. DeSantis and Nik Taylor.
44 25 U.S.C. §3071.
45 25 U.S.C. §3073.
46 25 U.S.C. §3076.
47 For example, in a 1970 message to Congress, President Nixon expanded on the idea of the United States’
government-to-government relationship with Tribes, expressing the view that they should participate in policy
development “to the greatest possible degree.” President Nixon’s Special Message on Indian Affairs, delivered to
Congress in 1970, Special Message to the Congress on Indian Affairs, Public Papers of the Presidents of the United
States: Richard M. Nixon, p. 564 (July 8, 1970).
48 E.O. 13084.
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direct effect” on Tribes or “tribal implications.”49 E.O. 13175 requires agencies to
develop a process to ensure “meaningful and timely input.”50
• Presidential Memorandum on Government-to-Government Relationship
Presidential Memorandum on Government-to-Government Relationship with Tribal Government (2004 P.M.) (2004 PM). Issued by President G.W. Bush in 2004, Issued by President G.W. Bush in 2004,
this memorandum recommits agencies to working on a government-to-this memorandum recommits agencies to working on a government-to-
government basis with Tribes.government basis with Tribes.51
• 51 Presidential Memorandum of November 5, 2009 (2009 P.M.). (2009 PM). Issued by Issued by
President Obama, this memorandum requires agencies to President Obama, this memorandum requires agencies to “"prepare and prepare and
periodically updateperiodically update”" a a “"detailed plan of actionsdetailed plan of actions”" to implement to implement E.O. 13175.52EO 13175.52 The The
2009 2009 P.M.PM requires tribal consultation on agency plans prior to White House requires tribal consultation on agency plans prior to White House
Office of Management and Budget (OMB) review.Office of Management and Budget (OMB) review.
• Presidential Memorandum on Tribal Consultation and Strengthening
Nation-to-Nation Relationships (2021 P.M. (2021 PM). Issued by President Biden in Issued by President Biden in
2021,2021, this memorandum reaffirms the 2009 P.M, also requiring agencies to create this memorandum reaffirms the 2009 P.M, also requiring agencies to create
a “a "detailed plan of actionsdetailed plan of actions”" to implement to implement E.O. 13175.53EO 13175.53 According to the 2021 According to the 2021
P.M.PM, the Biden Administration also , the Biden Administration also prioritizesprioritized the following principles: the following principles:
respecting tribal sovereignty and self-governance; fulfilling federal trust and respecting tribal sovereignty and self-governance; fulfilling federal trust and
treaty obligations; and engaging in treaty obligations; and engaging in “"regular, meaningful, and robustregular, meaningful, and robust”" consultation consultation
with Tribes.with Tribes.
• Presidential Memorandum of November 30, 2022: Uniform Standards for
Tribal Consultation (2022 P.M.Tribal Consultation (2022 PM). Issued by President Biden, this memorandum Issued by President Biden, this memorandum
directs agencies to implement federal-tribal consultation directs agencies to implement federal-tribal consultation “"best practices,best practices,”" such as such as
designating an agency point of contact for consultation, creating guidance on designating an agency point of contact for consultation, creating guidance on
consultation notices, keeping records of consultation, and training, among other consultation notices, keeping records of consultation, and training, among other
things.things.5454
All of these selected presidential actions include limitations and disclaimers.All of these selected presidential actions include limitations and disclaimers.5555 For example, each For example, each
includes a provision stating that it does not create any substantive or procedural right or benefit includes a provision stating that it does not create any substantive or procedural right or benefit
enforceable by a party against the United States.enforceable by a party against the United States.5656 Each also states that its directives should be Each also states that its directives should be
implemented consistent with, as permitted by, or to the extent permitted by, law or notes that it implemented consistent with, as permitted by, or to the extent permitted by, law or notes that it
should not be construed to impair or affect an agencyshould not be construed to impair or affect an agency’'s legal authority.57 s legal authority.57

49 Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 Federal Register
67249 (2000) (hereinafter E.O. 13175). Congress has stated that E.O. 13175’s tribal definition includes ANCs (P.L.
108-199, as amended, provided that “[t]he Director of the Office of Management and Budget and all Federal agencies
shall hereafter consult with Alaska Native corporations on the same basis as Tribes under Executive Order No. 13175.”
50 Ibid.
51 U.S. President (G. W. Bush), “Memorandum on Government-to-Government Relationship With Tribal
Governments,” Public Papers of the Presidents of the United States: Administration of George W. Bush, 2004
(Washington: GPO, 2004), p. 2106, at https://www.govinfo.gov/content/pkg/WCPD-2004-09-27/pdf/WCPD-2004-09-
27-Pg2106.pdf (hereinafter 2004 P.M.)
52 U.S. President (Obama), “Memorandum of November 5, 2009: Tribal Consultation,” 74 Federal Register 57879,
November 5, 2009 (hereinafter 2009 P.M.).
53 U.S. President (Biden), “Tribal Consultation and Strengthening Nation-to-Nation Relationships,” 86 Federal
Register 7491, January 29, 2021 (hereinafter 2021 P.M.).
54 U.S. President (Biden), “Memorandum of November 30, 2022: Uniform Standards for Tribal Consultation,” 87
Federal Register 74479, December 5, 2022 (hereinafter 2022 P.M.).
55 For more information about executive orders, see CRS Report R46738, Executive Orders: An Introduction,
coordinated by Abigail A. Graber.
56 E.O. 13084 §7, E.O. 13175 §10, 2004 P.M., 2009 P.M., 2021 P.M. §3, and 2022 P.M. §11.
57 E.O. 13084 §4; E.O. 13175 §§3, 5, & 6; 2004 P.M.; 2009 P.M.; 2021 P.M. §3; and 2022 P.M. §§2, 5, 7, & 11.
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In addition to presidential memoranda addressing federal-tribal consultation policy, the Biden
Administration hasIn addition to presidential memoranda addressing federal-tribal consultation policy, the Biden Administration prioritized agency consideration of Tribes prioritized agency consideration of Tribes’' and other Indigenous entities and other Indigenous entities’
' rights and knowledge through federal-tribal consultation.rights and knowledge through federal-tribal consultation. For example, in 2021, 17 agencies For example, in 2021, 17 agencies
signed an Interagency Treaty Memorandum of Understanding (signed an Interagency Treaty Memorandum of Understanding (MOU) committing to protecting
MOU) committing to protecting tribal treaty and reserved rightstribal treaty and reserved rights to natural and cultural resources through consideration of to natural and cultural resources through consideration of these
these rights in agency decisionmaking.rights in agency decisionmaking.58 58 In 2022, those agencies published a guide that included best In 2022, those agencies published a guide that included best
practices for federal-tribal consultation.59 Inpractices for federal-tribal consultation.59 In 2021 and 2022, the White House also issued a series 2021 and 2022, the White House also issued a series
of policies recognizing the value of Indigenous knowledge and directed federal agencies to of policies recognizing the value of Indigenous knowledge and directed federal agencies to
develop guidance to implement these policies.develop guidance to implement these policies.6060 These White House policies acknowledged that These White House policies acknowledged that
federal-tribal consultation may provide opportunities to understand and discuss how Indigenous federal-tribal consultation may provide opportunities to understand and discuss how Indigenous
knowledge can inform federal decisionmaking.knowledge can inform federal decisionmaking.61

CRS searched the United States Government Publishing Office's Compilation of Presidential Documents website and found no evidence that the Trump Administration has rescinded any presidential directives related to tribal consultation as of September 2026.62 Therefore, it appears that the presidential directives related to tribal consultation from prior Administrations remain in effect. However, offices within the Executive Office of the President, such as the Office of Management and Budget, have directed federal agencies to limit tribal consultation in certain contexts. For example, OMB Memorandum M-25-36, Streamlining the Review of Deregulatory Actions, states that agencies should consider deregulatory actions as "presumptively not triggering" consultation requirements. Furthermore, it states that "if there exists a particular reason for specific government-to-government consultations," agencies should presume that these consultations "should take place as part of the normal opportunity for stakeholder participation."63

Federal Agency Policies

Federal agencies have responded to congressional and presidential direction on federal-tribal consultation by issuing regulations, guidance, and other administrative actions. Federal agencies with a history of interaction with Tribes and other Indigenous entities, such as the Bureau of Indian Affairs (BIA), have issued more robust policies than other agencies. During the Biden Administration, many natural resource agencies issued updated consultation guidance, which generally appears to remain in effect during the Trump Administration. The following includes a brief summary of four natural-resource-focused agency or department policies addressing federal-tribal consultation.

U.S. Department of the Interior (DOI) Since 1972, DOI and its bureaus have issued various federal-tribal consultation policies.64 BIA, the principal federal agency charged with administering policy and programs for Tribes and other Indigenous entities, was the first agency to issue a federal-tribal consultation policy in 1972. This 61
Federal Agency Policies
Federal agencies have responded to congressional and presidential direction on federal-tribal
consultation by issuing regulations, guidance, and other administrative actions. Federal agencies
with a history of interaction with Tribes and other Indigenous entities, such as the Bureau of
Indian Affairs (BIA), have issued more robust policies than other agencies. Many natural resource
agencies have issued updated guidance in recent years to reflect Biden Administration policies.
According to the White House, nine federal agencies, including the National Oceanic and
Atmospheric Administration (NOAA), the U.S. Army Corps of Engineers (USACE), the U.S.
Department of Agriculture (USDA), and the U.S. Department of the Interior (DOI), were revising
or updating their federal-tribal consultation policies in 2023.62 The following includes a brief
summary of those four agency or department policies addressing federal-tribal consultation.63
U.S. Department of the Interior (DOI)
Since 1972, DOI and its bureaus have issued various federal-tribal consultation policies.64 BIA,
the principal federal agency charged with administering policy and programs for Tribes and other
Indigenous entities, was the first agency to issue a federal-tribal consultation policy in 1972. This

58 ACHP et al., “Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the
Protection of Tribal Treaty Rights and Reserved Rights,” November 15, 2021, at https://www.doi.gov/sites/doi.gov/
files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf (hereinafter “Interagency Treaty
MOU”).
59 White House, “Best Practices Guide.”
60 White House Council on Environmental Quality (CEQ) and Office of Science and Technology Policy (OSTP),
“Indigenous Traditional Ecological Knowledge and Federal Decision Making,” November 15, 2021, at
https://www.whitehouse.gov/wp-content/uploads/2021/11/111521-OSTP-CEQ-ITEK-Memo.pdf. See also CEQ and
OSTP, “Guidance for Federal Departments and Agencies on Indigenous Knowledge,” November 30, 2022, at
https://www.bia.gov/sites/default/files/dup/inline-files/ik_guidance_implementation_memo.pdf. Although there is no
single definition of Indigenous knowledge, one study defined it as “a cumulative body of knowledge, practice, and
belief ... handed down through generations by cultural transmission, about the relationship of living beings (including
humans) with one another and with their environment” (Fikret Berkes et al., “Rediscovery of Traditional Ecological
Knowledge as Adaptive Management,” Ecological Applications, vol. 10, no. 5 (2000), p. 1252, at
https://www.jstor.org/stable/2641280).
61 CEQ and OSTP, “Guidance for Federal Departments and Agencies on Indigenous Knowledge,” November 30, 2022,
at https://www.bia.gov/sites/default/files/dup/inline-files/ik_guidance_implementation_memo.pdf.
62 White House, “2023 Progress Report for Tribal Nations,” p. 10, at https://www.whitehouse.gov/wp-
content/uploads/2023/12/2023.12.04-TNS-Progress-Report.pdf.
63 These four agencies or departments have natural-resource-related missions.
64 See DOI, “Resources for Tribal Nations,” at https://www.doi.gov/priorities/tribal-consultation/resources-tribal-
nations.
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policy defined policy defined tribal consultation as as “"providing pertinent information to and obtaining the views providing pertinent information to and obtaining the views
of tribal governing bodies.of tribal governing bodies.”65 "65 This policy required consultation on BIA personnel and budgetary This policy required consultation on BIA personnel and budgetary
policies and other BIA policies as BIA deemed appropriate.policies and other BIA policies as BIA deemed appropriate.66 66
Since then, DOI and its individual bureaus have issued many federal-tribal consultation policies, Since then, DOI and its individual bureaus have issued many federal-tribal consultation policies,
which collectively formed the foundation for DOIwhich collectively formed the foundation for DOI’'s most recent s most recent consultation policy in 2022.policy in 2022.6767 The 2022 DOI The 2022 DOI
policy requires the department to consult with Tribes for any departmental action with policy requires the department to consult with Tribes for any departmental action with “"tribal tribal
implications,implications,”" which includes any action potentially affecting which includes any action potentially affecting
• tribal cultural practices or treaty rights;tribal cultural practices or treaty rights;
• the ability of a Tribe to govern or provide services to its members;the ability of a Tribe to govern or provide services to its members;
• a Tribea Tribe’'s formal relationship with DOI; ors formal relationship with DOI; or
• any action planned by a nonfederal entity that involves funding, approval, or any action planned by a nonfederal entity that involves funding, approval, or
other DOI final agency action that could affect Tribes.other DOI final agency action that could affect Tribes.68
68DOI did not adopt the FPIC standard in DOI did not adopt the FPIC standard in the 2022 its 2022 consultation policy, stating that doing so would policy, stating that doing so would “"deviate deviate
from the current position of the United Statesfrom the current position of the United States”"; DOI did, however, include a consensus-based ; DOI did, however, include a consensus-based
requirement in the policy.requirement in the policy.6969 The policy emphasized DOI The policy emphasized DOI’'s goal s goal “"to achieve consensus wherever to achieve consensus wherever
possible”possible" in federal-tribal consultation using the consensus-seeking model shown in in federal-tribal consultation using the consensus-seeking model shown in Figure 2.70

65 The BIA guidelines are discussed and excerpted in Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717-721
(8th Cir. 1979).
66 Ibid., pp. 717-718.
67 For example, DOI’s Bureau of Land Management (BLM) issued a consultation policy in 2016 (BLM, “BLM Manual
1780 Tribal Relations (P),” December 15, 2016, at https://www.blm.gov/sites/blm.gov/files/uploads/MS%201780.pdf.
68 DOI, “Consultation DM,” p. 3.
69 BIA, “DM Comments,” p. 6.
70 DOI, “Consultation DM,” p. 8.
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Figure 2.70

Figure 2. Department of the Interior’'s (DOI’'s) Consensus-Seeking Model
DOI Federal-Tribal Consultation DOI Federal-Tribal Consultation Manual

Policy Source: DOI, DOI, “"Departmental Manual: DOI Policy on Consultation with Indian Tribes,Departmental Manual: DOI Policy on Consultation with Indian Tribes,”" November 30, 2022, November 30, 2022, at
https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdfhttps://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf.
. Notes: In its 2022 In its 2022 Departmental Manualpolicy on federal-tribal consultation, DOI directed its staff on federal-tribal consultation, DOI directed its staff “"to achieve to achieve
consensus wherever possibleconsensus wherever possible”" using this model. The model illustrates low potential or need for consensus about using this model. The model illustrates low potential or need for consensus about
departmental actions in the outer rings and increasing potential or need for consensus about departmental departmental actions in the outer rings and increasing potential or need for consensus about departmental
actions in the inner rings.
actions in the inner rings.

Alongside its consultation policy, DOI issued consultation procedures in 2022. Among other things, the procedures specified which DOI staff should attend consultations, how staff should conduct themselves in a consultation, and how they should treat confidential information received during a consultation. The document also delineated stages of consultation to include (1) initial planning; (2) proposal development; (3) record of consultation; (4) implementation of final federal action; and (5) consultation summary report.71

In 2022, DOI also issued policies directing its staff to consult with several other Indigenous In 2022, DOI also issued policies directing its staff to consult with several other Indigenous
entities. In one such policy, DOI stated that it would treat Tribes and ANCs the same for purposes entities. In one such policy, DOI stated that it would treat Tribes and ANCs the same for purposes
of fulfilling federal-tribal consultation requirements under of fulfilling federal-tribal consultation requirements under E.O. 13175.71EO 13175.72 DOI also stated that if DOI also stated that if
concerns expressed by Tribes and ANCs concerns expressed by Tribes and ANCs “"substantively differ,substantively differ,”" departmental officials departmental officials “"shall give shall give
due consideration to the rights of sovereignty and self-governmentdue consideration to the rights of sovereignty and self-government”" of Tribes and to the unique of Tribes and to the unique
legal status and rights of ANCs.legal status and rights of ANCs.7273 The draft consultation policy for Native Hawaiians included The draft consultation policy for Native Hawaiians included
DOI’DOI's commitment to consult with them, stating that a special political and trust relationship s commitment to consult with them, stating that a special political and trust relationship
between the federal government and Native Hawaiians may continue to exist even without a between the federal government and Native Hawaiians may continue to exist even without a
formal government-to-government relationship.formal government-to-government relationship.73
74 In 2023, DOI issued an official policy encouraging the incorporation of Indigenous knowledge In 2023, DOI issued an official policy encouraging the incorporation of Indigenous knowledge
into departmental decisionmaking.into departmental decisionmaking.7475 Among other things, the document appeared to defer to Among other things, the document appeared to defer to
Tribes and other Indigenous entities to provide FPIC regarding the use of their knowledge in DOI

71 DOI, “Departmental Manual: Department of the Interior Policy on Consultation with Alaska Native Claims
Settlement Act Corporations,” November 30, 2022, p. 2, at https://www.doi.gov/sites/doi.gov/files/elips/
documents/512-dm-6.pdf (hereinafter DOI, “ANC Policy”).
72 Ibid., p. 1.
73 DOI, “Departmental Manual: Department of the Interior Policy on Consultation with the Native Hawaiian
Community,” November 30, 2022, p. 2, at https://www.doi.gov/sites/doi.gov/files/513-dm-1-oes-clean-508.pdf.
74 DOI, “Departmental Manual: Departmental Responsibilities for Consideration and Inclusion of Indigenous
Knowledge in Departmental Actions and Scientific Research,” December 5, 2023, p. 1, at https://www.doi.gov/
document-library/departmental-manual/301-dm-7-departmental-responsibilities-consideration-and.
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policies.75Tribes and other Indigenous entities to provide FPIC regarding the use of their knowledge in DOI policies.76 However, the policy clarified that FPIC was defined as consent for DOI to use However, the policy clarified that FPIC was defined as consent for DOI to use
Indigenous knowledge, not to indicate consent to any underlying project.Indigenous knowledge, not to indicate consent to any underlying project.76
77 U.S. Department of Agriculture (USDA)
Over the last 25 years, USDA has issued guidance on federal-tribal consultation. After Over the last 25 years, USDA has issued guidance on federal-tribal consultation. After E.O.
EO 13175 was issued in 2000, USDA adopted a series of departmental regulations on tribal 13175 was issued in 2000, USDA adopted a series of departmental regulations on tribal
consultation.consultation.7778 Then, in response to the 2009 Then, in response to the 2009 P.M.PM, USDA issued a plan of action, which included , USDA issued a plan of action, which included
the projected establishment of formal tribal consultation policies at all USDA agencies.the projected establishment of formal tribal consultation policies at all USDA agencies.7879 In In
addition, USDA noted that it had recently established a new Office of Tribal Relations, which addition, USDA noted that it had recently established a new Office of Tribal Relations, which
would oversee the departmentwould oversee the department’'s agency and office policies and processes for consultation, among s agency and office policies and processes for consultation, among
other duties.other duties.7980 In 2013, USDA issued Departmental Regulation 1350-002, which directed USDA In 2013, USDA issued Departmental Regulation 1350-002, which directed USDA
agencies to provide Tribes with the opportunity for consultation in policy development and agencies to provide Tribes with the opportunity for consultation in policy development and
program activities that have program activities that have “"direct and substantial effectsdirect and substantial effects”" on one or more Tribes. on one or more Tribes.8081 USDA stated USDA stated
that this policy would ensure that tribal priorities that this policy would ensure that tribal priorities “"are heard and fully consideredare heard and fully considered”" in federal in federal
decisionmaking.decisionmaking.81
82 In response to the 2021 In response to the 2021 P.M.PM, USDA submitted a plan of action and a subsequent progress report , USDA submitted a plan of action and a subsequent progress report
related to agency actions to achieve goals of the 2021 related to agency actions to achieve goals of the 2021 P.M.PM For example, the report discussed For example, the report discussed
expanding USDA tribal expertise, updating consultation policies based on tribal feedback, and expanding USDA tribal expertise, updating consultation policies based on tribal feedback, and
creating reporting and accountability requirements.creating reporting and accountability requirements.8283 USDA also announced the creation of a USDA also announced the creation of a
Tribal Advisory Committee (TAC), as authorized by the 2018 farm bill (P.L. 115-334), which Tribal Advisory Committee (TAC), as authorized by the 2018 farm bill (P.L. 115-334), which
would advise USDA on tribal consultation.would advise USDA on tribal consultation.83
USDA has not updated its official departmental tribal consultation policy since 2013, although
individual USDA agencies have issued updated policies to reflect the Biden Administration’s
priorities. For example, in 2022, the Forest Service issued its “Strengthening Tribal Consultations
and Nation-to-Nation Relationships” action plan, which included the goal of “expanding scope
and scale of Tribal involvement in agency work, planning, and decision making.”84 The Forest
Service action plan also referenced the Interagency Treaty MOU.

75 Ibid., p. 7.
76 Ibid., p. 4.
77 See, e.g., U.S. Department of Agriculture (USDA), “Departmental Regulation 1350-001: Tribal Consultation,” at
https://www.usda.gov/sites/default/files/documents/DR1350-001.pdf.
78 In its action plan, USDA acknowledged that historically, USDA had conducted consultations with Tribes on an ad
hoc basis, except for two agencies: the Natural Resources Conservation Service and the Forest Service. See USDA,
“United States Department of Agriculture Action Plan for Tribal Consultation and Collaboration,” at
https://www.usda.gov/sites/default/files/documents/ConsultationPlan.pdf.
79 USDA, “United States Department of Agriculture Action Plan for Tribal Consultation and Collaboration,” p. 7, at
https://www.usda.gov/sites/default/files/documents/ConsultationPlan.pdf.
80 USDA, “Departmental Regulation 1350-002: Tribal Consultation, Coordination, and Collaboration,” January 18,
2013), at https://www.usda.gov/sites/default/files/documents/USDA_DR_Tribal_Consultation_Coordination_and_
Collaboration_OTR_final_1_18.pdf.
81 Ibid.
82 USDA, “United States Department of Agriculture Plan of Action 270 Day Progress Report,” at
https://www.usda.gov/sites/default/files/documents/usda-consultation-plan-action-270-day-report.pdf.
83 USDA, “USDA Tribal Accomplishments 2022,” p. 1, at https://www.usda.gov/sites/default/files/documents/usda-
tribal-accomplishments-2022.pdf (hereinafter USDA, “2022 Tribal Accomplishments”).
84 USDA, Forest Service, “Strengthening Tribal Consultations and Nation-to-Nation Relationships,” February 2023, p.
19, at https://www.fs.usda.gov/sites/default/files/fs_media/fs_document/Strengthening-Tribal-Relations.pdf.
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U.S. Army Corps of Engineers (USACE)
84

USDA issued updated Departmental Regulation 1350-002 on April 30, 2024.85 This policy was intended to implement the 2009 PM, the 2021 PM, and the 2022 PM. Among other things, the revised policy states that USDA must consult when a proposed regulation, policy, budget action, "or other USDA action (e.g., infrastructure projects, directives, funding setasides)" could have "tribal implications." It defines tribal implications as including "implications for Tribes that involve their government-owned corporations, Tribal jurisdiction, and Tribal lands." In addition to Tribes and ANCs, USDA "may also meet with" non-federally recognized Tribes and Native Hawaiian organizations.

In addition to USDA's policy, individual USDA agencies have periodically issued their own consultation policies. For example, in 2022, the Forest Service issued its "Strengthening Tribal Consultations and Nation-to-Nation Relationships" action plan, which included the goal of "expanding scope and scale of Tribal involvement in agency work, planning, and decision making."86 The Forest Service action plan also referenced the Interagency Treaty MOU.

U.S. Army Corps of Engineers (USACE) As part of its civil works responsibilities, USACE builds and operates water resource projects As part of its civil works responsibilities, USACE builds and operates water resource projects
across the nation. USACEacross the nation. USACE’'s inventory of water projects includes more than 700 dams and s inventory of water projects includes more than 700 dams and
reservoirs and almost 12 million acres of USACE-managed lands. Congress directs USACE to reservoirs and almost 12 million acres of USACE-managed lands. Congress directs USACE to
undertake navigation improvements, riverine and coastal flood risk management projects, and undertake navigation improvements, riverine and coastal flood risk management projects, and
aquatic ecosystem restoration, as well as other activities. In addition to planning, constructing, aquatic ecosystem restoration, as well as other activities. In addition to planning, constructing,
and managing federal water resource projects, USACE also administers a regulatory program for and managing federal water resource projects, USACE also administers a regulatory program for
the permitting of nonfederal actions affecting wetlands and navigable waters. For example, the permitting of nonfederal actions affecting wetlands and navigable waters. For example,
USACE administers Section 404 of the Clean Water Act and other regulatory authorities; permits USACE administers Section 404 of the Clean Water Act and other regulatory authorities; permits
under these authorities may be required for project developers to proceed with activities and under these authorities may be required for project developers to proceed with activities and
projects in regulated waters.projects in regulated waters.
USACE Tribal Consultation Policies and Tribal Liaisons
The The then-Assistant Secretary of the Army (Civil Works; ASACW) released an updated USACE Tribal Assistant Secretary of the Army (Civil Works; ASACW) released an updated USACE Tribal
Consultation Policy on December 5, 2023, replacing an earlier policy from 2012.Consultation Policy on December 5, 2023, replacing an earlier policy from 2012.8587 Both the 2012 Both the 2012
and 2023 policies applied to both the USACE civil works projects and the USACE regulatory and 2023 policies applied to both the USACE civil works projects and the USACE regulatory
program. The program. The new2023 policy provides the following definition of consultation: policy provides the following definition of consultation:
Consultation: Regular, meaningful, and robust communication process involving USACE Consultation: Regular, meaningful, and robust communication process involving USACE
and Tribal officials with decision-making authority and which emphasizes trust, respect, and Tribal officials with decision-making authority and which emphasizes trust, respect,
and shared responsibility between USACE and the Tribal Nation or ANC. To the extent and shared responsibility between USACE and the Tribal Nation or ANC. To the extent
practicable and permitted by law, consultation works toward mutual consensus and begins practicable and permitted by law, consultation works toward mutual consensus and begins
at the earliest planning stages before decisions are made and actions are taken. Consultation at the earliest planning stages before decisions are made and actions are taken. Consultation
is an active, respectful and timely dialogue concerning actions taken by USACE that have is an active, respectful and timely dialogue concerning actions taken by USACE that have
Tribal implications on Tribal resources, Tribal rights (including treaty rights), or Tribal implications on Tribal resources, Tribal rights (including treaty rights), or tribal tribal
lands. Consultations are also conducted for actions which have a substantial direct effect lands. Consultations are also conducted for actions which have a substantial direct effect
on ANCs including actions on or affecting ANCSA lands, or actions for which any Tribes on ANCs including actions on or affecting ANCSA lands, or actions for which any Tribes
have expressed interest in consultation.have expressed interest in consultation.86
The new88 The 2023 policy identifies six tribal policy principles that broadly relate to tribal sovereignty; the policy identifies six tribal policy principles that broadly relate to tribal sovereignty; the
trust responsibility; the government-to-government relationship; consultation elements; support of trust responsibility; the government-to-government relationship; consultation elements; support of
tribal self-determination, self-reliance, and capacity building; and protection of natural and tribal self-determination, self-reliance, and capacity building; and protection of natural and
cultural resources.cultural resources.8789 The ASACW The ASACW’'s memo on the s memo on the new2023 policy policy directsdirected USACE to develop USACE to develop
implementing guidance and to plan for the necessary training and implementing guidance and to plan for the necessary training and “"culture changes."90 The 2023 culture changes.”88 The new

85 Memorandum from Assistance Secretary of the Army (Civil Works), Michael L. Connor, “Updated U.S. Army
Corps of Engineers Tribal Consultation Policy,” December 5, 2023 (hereinafter 2023 “USACE Tribal Consultation
Policy”); Memorandum from Lieutenant General Thomas P. Bostick, U.S. Army Commanding, to Commanders,
Directors and Chiefs of Separate Offices, U.S. Army Corps of Engineers (USACE), “Tribal Consultation Policy,”
November 1, 2012. Prior to releasing a draft policy in March 2023, in 2022 USACE had provided for tribal meetings
and written recommendation for updating Army Corps civil works policy priorities, including an update of its tribal
consultation policies (87 Federal Register 33756).
86 “U.S. Army Corps of Engineers – Civil Works Tribal Consultation Policy” enclosure in 2023 “USACE Tribal
Consultation Policy.” The new policy notes that a separate consultation policy with Native Hawaiian Communities is
under development.
87 The 2023 USACE Tribal Consultation Policy states, “As a matter of Federal law, only Congress has the authority to
abrogate or interfere with tribal treaty rights, which has not been delegated to USACE. USACE cannot authorize,
approve, or carry out any activities which would result in a violation of a Tribal treaty right.” Regarding the protection
of natural and cultural resources in addition to referencing NAGPRA and NHPA, the 2023 policy states “USACE
recognizes the importance of strict compliance with Native American Graves Protection and Repatriation Act
(NAGPRA), the National Historic Preservation Act (NHPA), the National Environmental Policy Act, the Endangered
Species Act, and other [statutes] concerning cultural and natural resources.”
88 2023 “USACE Tribal Consultation Policy.”
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policy also reflects that the Department of Defense, of which USACE is part, signed on to the policy also reflects that the Department of Defense, of which USACE is part, signed on to the
Interagency Treaty MOU, which includes as an appendix the 2022 White House Council on Interagency Treaty MOU, which includes as an appendix the 2022 White House Council on
Native American Affairs guide Native American Affairs guide “"Best Practices for Identifying and Protecting Tribal Treaty Best Practices for Identifying and Protecting Tribal Treaty
Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal
Decision-Making.Decision-Making.”" (The Department of Defense is "using a secondary Department of War designation" under Executive Order 14347 of September 5, 2025.) The new policy references the 2022 The new policy references the 2022 P.M.PM as part of the protocols for notice of as part of the protocols for notice of
consultation and for the contents of the record of consultation.consultation and for the contents of the record of consultation.
Adoption of the new policy follows congressional attention to USACE consultation. In Section Adoption of the new policy follows congressional attention to USACE consultation. In Section
112 of the Water Resources Development Act (WRDA) of 2020, Congress directed how USACE 112 of the Water Resources Development Act (WRDA) of 2020, Congress directed how USACE
should conduct consultation in carrying out USACE water resource projects.should conduct consultation in carrying out USACE water resource projects.8991 In WRDA 2022, In WRDA 2022,
Congress established a requirement that each USACE district containing a Congress established a requirement that each USACE district containing a “"tribal community,tribal community,”
" shall have a tribal liaison.shall have a tribal liaison.90 According to USACE, as of December 2023, there are 51 USACE
district staff members who are identified as tribal liaisons.9192
USACE Historic Preservation and Tribal Consultation
USACE has several policies regarding NHPA Section 106 compliance for undertakings associated USACE has several policies regarding NHPA Section 106 compliance for undertakings associated
with its water projects.with its water projects.9293 Apart from its regulatory program, USACE generally follows the NHPA Apart from its regulatory program, USACE generally follows the NHPA
Section 106 regulations promulgated by the Advisory Council for Historic Preservation (ACHP; Section 106 regulations promulgated by the Advisory Council for Historic Preservation (ACHP;
36 C.F.R. Subpart 800), which establish specific consultation requirements for federal agencies 36 C.F.R. Subpart 800), which establish specific consultation requirements for federal agencies
when projects occur on tribal land or impact tribal historic properties. In contrast, when projects occur on tribal land or impact tribal historic properties. In contrast, USACE’s
USACE's regulatory program follows USACE-developed procedures (33 C.F.R. Subpart 325 Appendix C, regulatory program follows USACE-developed procedures (33 C.F.R. Subpart 325 Appendix C,
“"Procedures for the Protection of Historic PropertiesProcedures for the Protection of Historic Properties”") to comply with NHPA Section 106 ) to comply with NHPA Section 106
requirements, other applicable historic preservation laws, and presidential directives. The USACE requirements, other applicable historic preservation laws, and presidential directives. The USACE
regulatory programregulatory program’'s Appendix C procedures have been the subject of disagreements between USACE and the ACHP, Tribes, and other stakeholders, as noted in a 2017 ACHP report.94 For example, USACE nationwide permits allow nonfederal permit applicants to identify historic properties (or their absence) without input from Tribes. On February 9, 2024, USACE published a proposed rule to remove Appendix C and remove references to Appendix C in its regulations for the regulatory program.95 As of September 2026, USACE had taken no further action with regard to the proposed rule, and USACE's regulatory program continued to follow Appendix C procedures for compliance with Section 106 requirements. Moreover, the entry for the rulemaking was not included in the Trump Administration's 2026 regulatory agenda and plan.96 National Oceanic and Atmospheric Administration (NOAA) s Appendix C procedures have been the subject of disagreements between

89 Section 112(d) of Division AA of P.L. 116-260 states,
TRIBAL LANDS AND CONSULTATION.—In carrying out water resources development
projects, the Secretary shall, to the extent practicable and in accordance with the Tribal
Consultation Policy affirmed and formalized by the Secretary on November 1, 2012 (or a successor
policy)—(1) promote meaningful involvement with Indian Tribes specifically on any Tribal lands
near or adjacent to any water resources development projects, for purposes of identifying lands of
ancestral, cultural, or religious importance; (2) consult with Indian Tribes specifically on any Tribal
areas near or adjacent to any water resources development projects, for purposes of identifying
lands, waters, and other resources critical to the livelihood of the Indian Tribes; and (3) cooperate
with Indian Tribes to avoid, or otherwise find alternate solutions with respect to, such areas.
According to USACE, the concepts included in Section 112(d) will also be included in the development of best
practices guides to accompany 2023 USACE Tribal Consultation Policy (USACE communication with CRS, December
4, 2023).
90 Section 8112 of Title LXXXI, Water Resources Development Act of 2022 (WRDA 2022), of Division H of the
James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (P.L. 117-263). For this provision, WRDA
2022 defined “tribal community” as “a community of people who are recognized and defined under Federal law as
indigenous people of the United States.” Among the duties specified for the liaisons are “improving, expanding, and
facilitating government-to-government consultation between Tribal peoples and the Corps of Engineers.” Another duty
is being responsible for “training and tools to facilitate the ability of Corps of Engineers staff to effectively engage with
Tribal peoples.” Implementation status on this provision has not been made publicly available.
91 USACE communication with CRS, December 4, 2023. Each of the 38 districts has a designated tribal liaison and 13
districts have at least 1 additional tribal liaison to assist with tribal consultation in the USACE Regulatory Division or
other USACE mission areas. Also, each of the 8 USACE divisions has a designated tribal liaison, and there is a senior
tribal liaison position at USACE Headquarters. According to USACE, a number of district and division tribal liaisons
serve full time.
92 This includes USACE granting easements at its projects.
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USACE and the ACHP, Tribes, and other stakeholders, as noted in a 2017 ACHP report.93 For
example, USACE nationwide permits allow nonfederal permit applicants to identify historic
properties (or their absence) without input from Tribes. On February 9, 2024, USACE published a
proposed rule to remove Appendix C and remove references to Appendix C in its regulations for
the regulatory program.94
National Oceanic and Atmospheric Administration (NOAA)
NOAA is an agency within the Department of Commerce (DOC) with a mission to understand NOAA is an agency within the Department of Commerce (DOC) with a mission to understand
and predict changes in climate, weather, ocean, and coasts; to share that knowledge and and predict changes in climate, weather, ocean, and coasts; to share that knowledge and
information with others; and to conserve and manage coastal and marine ecosystems.information with others; and to conserve and manage coastal and marine ecosystems.9597 DOC DOC’s
's formal federal-tribal consultation policies were last updated in 2012, via a DOC Department formal federal-tribal consultation policies were last updated in 2012, via a DOC Department
Administrative Order, DAO 218-8.Administrative Order, DAO 218-8.9698 DAO 218-8 implements DAO 218-8 implements E.O.EO 13175, the 2009 13175, the 2009 P.M.PM, and , and
related OMB guidance and directs readers to a department-level guidance document describing related OMB guidance and directs readers to a department-level guidance document describing
how the DOC is to work with Tribes on a government-to-government basis.how the DOC is to work with Tribes on a government-to-government basis.9799 The guidance, last The guidance, last
updated in 2013, updated in 2013, “"provides uniform standards and methodology outlining consultation procedures provides uniform standards and methodology outlining consultation procedures
for all [DOC] personnel working with Tribal governments regarding policies that have tribal for all [DOC] personnel working with Tribal governments regarding policies that have tribal
implications.implications.”98"100 Under the guidance, consultation may take a variety of forms, including Under the guidance, consultation may take a variety of forms, including
meetings, letters, webinars, on-site visits, and participation in regional or national events. The meetings, letters, webinars, on-site visits, and participation in regional or national events. The
consultation is to consultation is to “"entail an informed discussion of the proposed federal policy and associated entail an informed discussion of the proposed federal policy and associated
tribal concernstribal concerns”" between the Tribal Consultation Official and tribal officials. between the Tribal Consultation Official and tribal officials.99101 DAO 218-8 also DAO 218-8 also
established a DOC Tribal Consultation Official responsible for ensuring DOC compliance with established a DOC Tribal Consultation Official responsible for ensuring DOC compliance with
E.O.EO 13175, DAO 218-8, and the guidance. 13175, DAO 218-8, and the guidance.100102 In 2021, DOC also signed onto the Interagency In 2021, DOC also signed onto the Interagency
Treaty MOU.Treaty MOU.101
103 At the agency level, NOAA policies build on the same guidance and direction as DAO 218-8, the At the agency level, NOAA policies build on the same guidance and direction as DAO 218-8, the
2021 2021 P.M.PM, and the Interagency Treaty MOU. , and the Interagency Treaty MOU. Since 2023, NOAA has laid out its federal-tribal consultation NOAA has laid out its federal-tribal consultation
policies in a NOAA Administrative Order, NAO 218-8A, and several guidance documentspolicies in a NOAA Administrative Order, NAO 218-8A, and several guidance documents, all
released in 2023.102.104 Under NAO 218-8A, the NOAA Administrator must appoint and maintain a Under NAO 218-8A, the NOAA Administrator must appoint and maintain a

93 ACHP, “Improving Tribal Consultation in Infrastructure Projects,” p. 13, at https://www.achp.gov/sites/default/files/
reports/2018-11/ImprovingTribalConsultationinInfrastructureProjectsFinalApril272017_0.pdf.
94 89 Federal Register 9079. As an earlier step toward the proposed changes, the Department of the Army, through
publication of a Federal Register notice in June 2022 (87 Federal Register 33756), solicited comment on approaches to
modernize Appendix C.
95 National Oceanic and Atmospheric Administration (NOAA), “Our Mission and Vision,” at https://www.noaa.gov/
our-mission-and-vision.
96 Department of Commerce (DOC), Office of Privacy and Open Government, “DAO 218-8: Consultation and
Coordination with Indian Tribal Governments,” effective date April 26, 2012, at
https://www.osec.doc.gov/opog/dmp/daos/dao218_8.html (hereinafter DAO 218-8).
97 DOC, “Tribal Consultation and Coordination Policy of the U.S. Department of Commerce,” 2013, at
https://www.commerce.gov/sites/default/files/media/files/2013/tribal-consultation-final.pdf (hereinafter DOC, “Tribal
Consultation Policy”). Under the policy, DOC aims to consult with Alaska Native Corporations “in a manner as close
as possible” to consultations with Tribes in Alaska (p. 5).
98 DOC, “Tribal Consultation Policy,” p. 1.
99 Ibid., p. 4.
100 DAO 218-8, §5.
101 Interagency Treaty MOU.
102 NOAA, “NAO 218-8A: Policy on Government-to-Government Consultation with Federally Recognized Indian
Tribal Governments,” effective June 27, 2023, at https://www.noaa.gov/organization/administration/nao-218-8A-
policy-on-G2G-consultation-with-federally-Recognized-Tribal-Governments (hereafter NAO 218-8A); NOAA,
“NOAA Procedures for Government-to-Government Consultation with Federally Recognized Indian Tribal
(continued...)
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NOAA Tribal Liaison with a variety of responsibilities, including developing guidance and NOAA Tribal Liaison with a variety of responsibilities, including developing guidance and
maintaining documentation of agency consultations.maintaining documentation of agency consultations.103105 The NOAA tribal consultation procedures The NOAA tribal consultation procedures
require each line office, staff office, and regional team to establish tribal liaisons as well.require each line office, staff office, and regional team to establish tribal liaisons as well.104 The
agency’106 The agency's best practices document on incorporating Indigenous knowledge in decisionmaking s best practices document on incorporating Indigenous knowledge in decisionmaking
“"goes beyondgoes beyond”" the consultation procedures the consultation procedures “"to recognize and be inclusive of all Indigenous to recognize and be inclusive of all Indigenous
Peoples within the United States and the importance of equitable engagement and involvement of Peoples within the United States and the importance of equitable engagement and involvement of
their knowledge.their knowledge.”105
"107 Issues and Options for Congress
Members of Congress, Tribes, other Indigenous entities, federal agencies, and others have Members of Congress, Tribes, other Indigenous entities, federal agencies, and others have
identified various federal-tribal consultation issues that are the subjects of ongoing policy debate, identified various federal-tribal consultation issues that are the subjects of ongoing policy debate,
including the following:including the following:
• Federal actions subject to consultation (Federal actions subject to consultation (“"what?what?”)
• ") Representation of the parties (Representation of the parties (“"who?") who?”)
• Timing of consultation (Timing of consultation (“"when?when?”)
• ") Agency consideration of input provided by Tribes and other Indigenous entities Agency consideration of input provided by Tribes and other Indigenous entities
(“how?”)
• Administrative capacity
• Federal funding
("how?")
  • Administrative capacity
  • Federal funding
    • Federal Actions Subject to Consultation (“"What?”)
    ") Many Tribes and other Indigenous entitiesMany Tribes and other Indigenous entities have asked agencies to have asked agencies to consultconsult on federal actions on federal actions
    , including those potentially affecting natural resourcespotentially affecting natural resources. . In particular, Tribes with reserved treaty rights may desire In particular, Tribes with reserved treaty rights may desire
    to be consulted even when they are not located close to the site of the federal action.to be consulted even when they are not located close to the site of the federal action.106 Through
    108 Through treaties with the United States, Tribes often ceded lands in exchange for the right to conduct treaties with the United States, Tribes often ceded lands in exchange for the right to conduct
    certain activities, like hunting and fishing, on those lands. certain activities, like hunting and fishing, on those lands. TribesTribes may seek access to federal lands may seek access to federal lands
    or input into federal land management decisions because of the large amount of land currently or input into federal land management decisions because of the large amount of land currently
    owned by the federal government that once was tribal land.owned by the federal government that once was tribal land.107109 For example, some Tribes and For example, some Tribes and
    other Indigenous entities have sought to influence federal policies on mining to protect natural other Indigenous entities have sought to influence federal policies on mining to protect natural
    and cultural resourcesand cultural resources.108 .110 Some Tribes may Some Tribes may seek to influence federal actions in the ocean, such as seek to influence federal actions in the ocean, such as

    Governments,” 2023, at https://www.noaa.gov/sites/default/files/2023-07/NOAA_Tribal_Consultation_Handbook_
    2023_FINAL.pdf (hereinafter, “NOAA Procedures”); and NOAA, “NOAA Guidance and Best Practices for Engaging
    and Incorporating Indigenous Knowledge in Decision-Making,” 2023, at https://www.noaa.gov/sites/default/files/2023-
    07/NOAA_IK_Guidance_FINAL_2023_1.pdf (hereinafter “NOAA Guidance”).
    103 NAO 218-8A, §5.
    104 “NOAA Procedures,” p. 7.
    105 “NOAA Guidance,” p. 1.
    106 Letter from Fawn Sharp, President, National Congress of American Indians (NCAI), to Shalanda Young, President,
    Office of Management and Budget (OMB), April 9, 2021, p. 23. Available to congressional clients from the authors on
    request.
    107 White House, “Best Practices Guide,” p. 12. Tribes and other Indigenous entities’ interest in a more robust, long-
    term, and formal role in managing federal lands to which they have a connection is sometimes referred to as federal-
    tribal co-management     or co-stewardship. For more information, see CRS Report R47563, Tribal Co-management of
    Federal Lands: Overview and Selected Issues for Congress    , by Mariel J. Murray.
    108 See, e.g., Chilkat Indian Village et al., “Notice of Petition and Petition for Rulemaking: Bringing Hardrock Mining
    (continued...)
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    offshore wind development. For example, the Yurok Tribe has reportedly claimed that the ocean offshore wind development. For example, the Yurok Tribe has reportedly claimed that the ocean
    is is “"unceded territoryunceded territory”" and that and that “"they remain stewards of their coastal watersthey remain stewards of their coastal waters.”109 Yurok ."111 Yurok tribal tribal
    leaders claim that the federal processes for wind farm activity have failed to include leaders claim that the federal processes for wind farm activity have failed to include theirtheir input. input.110
    Some Tribes and other Indigenous entities have asked for input in internal agency processes.Some Tribes and other Indigenous entities have asked for input in internal agency processes.111
    For example, Tribes have stated that they should be consulted For example, Tribes have stated that they should be consulted throughoutin the federal budget the federal budget
    formulation and execution processes “to ensure tribal funding priorities and needs are met.”112 In
    2022process and federal rulemakings."112 In addition, the Government Accountability Office (GAO) , the Government Accountability Office (GAO) has recommended that certain agencies, recommended that certain agencies,
    including OMB and USDA, establish processes to incorporate including OMB and USDA, establish processes to incorporate “"meaningful and timely input from meaningful and timely input from
    tribal officialstribal officials”" when formulating federal budget requests.113 when formulating federal budget requests.”113
    The National Congress of American Indians (NCAI) has asserted that Tribes should be able to
    request consultation on any federal action of relevance to them. Specifically, NCAI requested that
    OMB, which oversees federal agency management, establish a mechanism requiring agencies to
    consult with Tribes and other Indigenous entities upon their request.114 While some agencies
    allow for Tribes and other Indigenous entities to request consultation, this practice is not uniform
    across the government.
    In addition, Tribes and other Indigenous entities may seek federal-tribal consultation on In addition, Tribes and other Indigenous entities may seek federal-tribal consultation on
    infrastructure projects where the federal government plays a role, as discussed in the text box infrastructure projects where the federal government plays a role, as discussed in the text box
    below.below.
    Federal-Tribal Consultation on Infrastructure Projects
    Infrastructure projects represent a wide array of development activities. Some infrastructure projects may be Infrastructure projects represent a wide array of development activities. Some infrastructure projects may be
    performed by federal agencies (e.g., USACE plans and constructs congressionally authorized projects). Many performed by federal agencies (e.g., USACE plans and constructs congressionally authorized projects). Many
    infrastructure projects are undertaken by nonfederal public and private entities, such as highway projects, infrastructure projects are undertaken by nonfederal public and private entities, such as highway projects,
    municipal water systems, and oil and gas pipelines. Multiple federal agencies may have jurisdiction over portions of municipal water systems, and oil and gas pipelines. Multiple federal agencies may have jurisdiction over portions of
    these nonfederal projects under various statutes or through federal funding. For both federal and nonfederal these nonfederal projects under various statutes or through federal funding. For both federal and nonfederal
    infrastructure projects, federal-tribal consultation may be required as part of federal review and decisionmaking infrastructure projects, federal-tribal consultation may be required as part of federal review and decisionmaking
    (e.g., permitting). The following are some examples of federal-tribal consultation topics related to infrastructure (e.g., permitting). The following are some examples of federal-tribal consultation topics related to infrastructure
    projects.projects.
    •
    NEPA compliance. Through an agreement with the lead federal agency, a Tribe can become a Through an agreement with the lead federal agency, a Tribe can become a cooperating
    agency    , which includes opportunities for participation in the lead agency, which includes opportunities for participation in the lead agency’'s NEPA process. Some Tribes have s NEPA process. Some Tribes have
    become cooperating agencies as part of NEPA compliance performed in connection with federal permits and become cooperating agencies as part of NEPA compliance performed in connection with federal permits and
    approvals for infrastructure projects. While such participation may allow opportunities for Tribes to provide approvals for infrastructure projects. While such participation may allow opportunities for Tribes to provide
    expertise on traditional lifeways (e.g., trapping, fishing, gathering foods and times, and traditional uses of a
    variety of natural resources)expertise on Indigenous knowledge and cultural resources, tribal participation as a cooperating agency requires the and cultural resources, tribal participation as a cooperating agency requires the
    expenditure of tribal resources and may not extend to the consideration of other tribal concerns about a expenditure of tribal resources and may not extend to the consideration of other tribal concerns about a
    specific project.

    Regulations and Policy into the 21st Century to Protect Indigenous and Public Lands Resources in the West,”
    September 16, 2021, p. 2, at https://earthworks.org/assets/uploads/2021/09/APA-DOI-Hardrock-Mining-Rules-
    Petition-Combined-1.pdf.
    109 Chez Oxendine, “Native Leaders at Yurok Summit Demand a Seat at the Table for Offshore Wind Projects,” Tribal
    Business News    , February 3, 2024.
    110 Ibid.
    111 OMB, “Office of Management and Budget Tribal Consultation Plan of Actions,” April 26, 2021, p. 4, at
    https://www.whitehouse.gov/wp-content/uploads/2021/07/OMB-Tribal-Consultation-Plan-of-Actions.pdf.
    112 Ibid.
    113 GAO, Tribal Funding: Actions Needed to Improve Information on Federal Funds That Benefit Native Americans,
    22-104602, 2022, p. 38, at https://www.gao.gov/assets/gao-22-104602.pdf (GAO, “Federal Funds”).
    114 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 7. Available to
    congressional clients from the authors on request.
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    •
    specific project. FAST-41 projects. Title 41 of the FAST Act (FAST-41; 42 U.S.C. §§4370m et seq.) created a set of Title 41 of the FAST Act (FAST-41; 42 U.S.C. §§4370m et seq.) created a set of
    procedures and funding authorities to improve the federal environmental review and authorization process procedures and funding authorities to improve the federal environmental review and authorization process
    for certain for certain “covered”"covered" infrastructure projects (e.g., projects over $200 million). Under the act, covered infrastructure projects (e.g., projects over $200 million). Under the act, covered
    projects are required to develop multiagency project plans with timetables for environmental reviews and projects are required to develop multiagency project plans with timetables for environmental reviews and
    authorizations, and schedules for public and tribal outreach and coordination. The act also requires the authorizations, and schedules for public and tribal outreach and coordination. The act also requires the
    Federal Permitting Improvement Steering Council to meet at least annually with Tribes and other Federal Permitting Improvement Steering Council to meet at least annually with Tribes and other
    stakeholders. This federal-tribal consultation requirement is separate from consultations that may be stakeholders. This federal-tribal consultation requirement is separate from consultations that may be
    required under other laws, such as NHPA. Some Tribes have suggested establishing a framework for regular required under other laws, such as NHPA. Some Tribes have suggested establishing a framework for regular
    engagement under the law.engagement under the law.
    •
    Delegation of federal programs to states. Some Tribes have raised concerns that federal agency Some Tribes have raised concerns that federal agency
    delegation of some programs for state administration (e.g., certain Clean Water Act programs) may reduce delegation of some programs for state administration (e.g., certain Clean Water Act programs) may reduce
    opportunities for tribal input regarding potential impacts to off-reservation rights, particularly where state law opportunities for tribal input regarding potential impacts to off-reservation rights, particularly where state law
    does not require tribal consultation.does not require tribal consultation.
    SourcesSources: See generally 40 C.F.R. §1501. See also Department of the Interior, See generally 40 C.F.R. §1501. See also Department of the Interior, “"Improving Tribal Consultation and Improving Tribal Consultation and
    Tribal Involvement in Federal Infrastructure Decisions,Tribal Involvement in Federal Infrastructure Decisions,”" January 2017, January 2017, at https://www.doi.gov/sites/doi.gov/files/https://www.doi.gov/sites/doi.gov/files/
    report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See also GAO, report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See also GAO, Tribal Consultation:
    : Additional Federal Actions Needed for Infrastructure Projects    , GAO-19-22, March 2019, , GAO-19-22, March 2019, at https://www.gao.gov/https://www.gao.gov/
    assets/gao-19-22.pdf. See also ACHP, assets/gao-19-22.pdf. See also ACHP, “"Improving Tribal Consultation in Infrastructure Projects,Improving Tribal Consultation in Infrastructure Projects,”" May 14, 2017, p. May 14, 2017, p.
    4, at 4, https://www.achp.gov/sites/default/files/reports/2018-11/https://www.achp.gov/sites/default/files/reports/2018-11/ImprovingTribalConsultationinInfrastructureProjects
    FinalApril272017_0.pdf.
    ImprovingTribalConsultationinInfrastructureProjectsFinalApril272017_0.pdf. Clarity of Federal-Tribal Consultation Requirements
    Various industry stakeholders, tribal associations, and scholars have advocated for clearer federal Various industry stakeholders, tribal associations, and scholars have advocated for clearer federal
    consultation standards. Some industry stakeholders have stated that consultation standards. Some industry stakeholders have stated that “"transparent, inclusive, and transparent, inclusive, and
    predictable”predictable" federal agency guidance would be helpful regarding which projects and activities are federal agency guidance would be helpful regarding which projects and activities are
    subject to consultation and how consultation should be conducted.subject to consultation and how consultation should be conducted.115114 Some tribal associations and Some tribal associations and
    scholars, as well as some Members of Congress, also have asserted that agency consultation scholars, as well as some Members of Congress, also have asserted that agency consultation
    practices not expressly directed by statute have been unenforceable and inconsistent.practices not expressly directed by statute have been unenforceable and inconsistent.116115 Therefore, Therefore,
    some tribal associations and scholars have asked for a statutory federal consultation standard to some tribal associations and scholars have asked for a statutory federal consultation standard to
    ensure that agencies are held accountable for ensure that agencies are held accountable for “"uniform, effective, and meaningfuluniform, effective, and meaningful”" federal-tribal federal-tribal
    consultation.consultation.117
    116 On the other hand, certain agencies have resisted formalizing or expanding federal-tribal On the other hand, certain agencies have resisted formalizing or expanding federal-tribal
    consultation procedures for various reasons. They may assert that they are already complying consultation procedures for various reasons. They may assert that they are already complying
    with legal requirements and are not required to consultwith legal requirements and are not required to consult.. For example, independent regulatory For example, independent regulatory
    agencies such as the Federal Communications Commission (FCC), Federal Energy Regulatory agencies such as the Federal Communications Commission (FCC), Federal Energy Regulatory
    Commission, and Nuclear Regulatory Commission are not subject to Commission, and Nuclear Regulatory Commission are not subject to E.O.EO 13175 13175’'s consultation requirements.117s consultation

    115 See Enbridge, “Enbridge Submission Docket ID No. COE-2022-0006_02.08.2022” p. 2, at
    https://www.regulations.gov/comment/COE-2022-0006-0097; see also Interstate Natural Gas Association of America
    and American Gas Association, “INGAA AGA Comments on Corps Notice,” p. 4, at https://www.regulations.gov/
    comment/COE-2022-0006-0088.
    116 See Statement of NCAI, H.R. 5608 hearing, p. 86; Statement of Joe Shirley, President, Navajo Nation, H.R. 5608
    hearing, pp. 23-25. See also Hearing Memo, Legislative Hearing on H.R. 2930, H.R. 438, and RESPECT Act, 117th
    Cong., 1st sess., May 20, 2021, p. 6, at https://naturalresources.house.gov/uploadedfiles/hearing_memo_2021-05-
    20_ip_legislative_hearing.pdf (“It is difficult to assess the adequacy of federal agency consultation with a Tribe.”).
    117 NCAI, “Resolution #MOH-17-001: A Call on Congress to Enact Legislation That Will Ensure Uniform, Effective
    and Meaningful Consultation with Indian Nations and Tribes Whenever Federal Activities Have Tribal Impacts,” p. 2,
    at https://ncai.assetbank-server.com/assetbank-ncai/action/viewAsset?id=619. See Mills & Nie, “Bridges,” pp. 57, 89,
    and 94. See also White House, “Best Practices Guide,” p. 11; Routel & Holth, “Genuine Consultation,” p. 466; and
    Letter from United South and Eastern Tribes Sovereignty Protection Fund to Raul Grijalva, Chairman of the House
    Natural Resources Committee, March 11, 2022, pp. 2, at https://www.usetinc.org/wp-content/uploads/2022/04/USET-
    SPF-Comments-RESPECT-Act-FINAL-3_11_22_-002.pdf (hereinafter USET, “Letter”).
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    requirements.118 Similarly the Department of Transportation has stated that, unlike the Indian Similarly the Department of Transportation has stated that, unlike the Indian
    Health Service and BIA, it is not mandated to consult under ISDEAA (25 U.S.C. §5325(i)).Health Service and BIA, it is not mandated to consult under ISDEAA (25 U.S.C. §5325(i)).119118 In In
    addition, some agencies have stated that consultation on certain issues is unnecessary or addition, some agencies have stated that consultation on certain issues is unnecessary or
    impractical.impractical.120
    119 Judicial Enforceability of Federal-Tribal Consultation
    Congress has not imposed a comprehensive responsibility for tribal consultations applicable to all Congress has not imposed a comprehensive responsibility for tribal consultations applicable to all
    federal actions, complicating the question of whether existing consultation directives are federal actions, complicating the question of whether existing consultation directives are
    judicially enforceable. In this context, judicially enforceable. In this context, judicial enforceability refers to the question of whether refers to the question of whether
    courts will issue decisions holding agencies accountable to consult with Tribes, such as by courts will issue decisions holding agencies accountable to consult with Tribes, such as by
    prohibiting agencies from taking certain actions until consultation has occurred. The current prohibiting agencies from taking certain actions until consultation has occurred. The current
    landscape of federal-tribal consultation is marked by impressive variability, making it challenging landscape of federal-tribal consultation is marked by impressive variability, making it challenging
    to arrive at universal, practical conclusions. The variability is manifold: enforcement actions may to arrive at universal, practical conclusions. The variability is manifold: enforcement actions may
    be brought by an array of interested parties, including Tribes and tribal members, against a be brought by an array of interested parties, including Tribes and tribal members, against a
    number of agencies operating under an even greater number of statutes, policies, and regulations, number of agencies operating under an even greater number of statutes, policies, and regulations,
    in innumerable factual and highly specific scenarios.in innumerable factual and highly specific scenarios.121120 Perhaps at least in part due to this Perhaps at least in part due to this
    variability, the evaluation of federal-tribal consultation has seemingly resisted the development of variability, the evaluation of federal-tribal consultation has seemingly resisted the development of
    seminal definitions and tests or the widespread adoption of substantive criteria for successful seminal definitions and tests or the widespread adoption of substantive criteria for successful
    consultation. Some legal scholars argue that although agency policies often consultation. Some legal scholars argue that although agency policies often “"refer to refer to ‘meaningful’
    'meaningful' communication and dialoguecommunication and dialogue”" with Tribes, they are with Tribes, they are “"unclear about what consultation processes unclear about what consultation processes
    specifically require,specifically require,”" so so “"consultation remains vague and [practically] unenforceable.consultation remains vague and [practically] unenforceable.”122"121 Despite Despite
    the aforementioned variability affecting an assessment of judicial enforceability, the discussion the aforementioned variability affecting an assessment of judicial enforceability, the discussion
    below offers a few principles that may usefully frame current judicial treatment of Tribesbelow offers a few principles that may usefully frame current judicial treatment of Tribes’
    ' attempts to enforce consultation requirements.attempts to enforce consultation requirements.
    First, tribal consultation policies imposed solely by executive orders and presidential memoranda First, tribal consultation policies imposed solely by executive orders and presidential memoranda
    may not provide an independent basis for judicial enforcement. Executive orders intended may not provide an independent basis for judicial enforcement. Executive orders intended
    “"primarily as a managerial tool for implementingprimarily as a managerial tool for implementing”" the president the president’'s personal policies and that s personal policies and that
    disclaim the creation of any new rights or obligations do not carry the force of law and are disclaim the creation of any new rights or obligations do not carry the force of law and are
    generally not enforceable in court.generally not enforceable in court.123122 By contrast, executive orders that are grounded in powers By contrast, executive orders that are grounded in powers
    granted directly to the granted directly to the presidentPresident by the Constitution or by statute do carry the force of law and can by the Constitution or by statute do carry the force of law and can
    be enforced by the courts.be enforced by the courts.124123 Presidential documents related to federal-tribal consultation (such as Presidential documents related to federal-tribal consultation (such as
    the executive orders and memoranda discussed above) generally fall into the first category of the executive orders and memoranda discussed above) generally fall into the first category of
    executive orders that announce the Administrationexecutive orders that announce the Administration’'s policies.s policies.125124 These presidential documents These presidential documents
    typically cite the federal trust responsibility and the holistic body of federal Indian law—rather

    118 E.O. 13175 §1(c).
    119 GAO, “Federal Funds,” p. 49.
    120 See, e.g., Statement of James Cason, Associate Deputy Secretary, DOI, in H.R. 5608 hearing, pp. 5-6, and Statement
    of Philip N. Hogen, Chairman, National Indian Gaming Commission (NIGC), in H.R. 5608 hearing, p. 11.
    121 As two scholars recently wrote, “[w]hile federal directives have recognized the importance of tribal consultation,
    agency implementation has not been consistent, with noted problems related to specificity, enforceability, and
    uniformity.” Kristin Green and Teresa Cavazos Cohn, “Meaningful Tribal Consultation as Part of National Forest
    Planning,” Idaho Law Review, vol. 59 (2023), pp. 105, 107 (citing Routel & Holth, “Genuine Consultation,” pp. 417,
    448) (hereinafter Green & Cohn, “Meaningful Tribal Consultation”).
    122 Green & Cohn, “Meaningful Tribal Consultation,” p. 108.
    123 In re Surface Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C. Cir. 1980).
    124 Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995); HHS v. FLRA, 844 F.2d 1087, 1095-96 (4th Cir.
    1987) (en banc). For more information on the legal enforceability of executive orders, see CRS Report R46738,
    Executive Orders: An Introduction, coordinated by Abigail A. Graber.
    125 See Northern Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1281 (D. Wyo. 2015).
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    typically cite the federal trust responsibility and the holistic body of federal Indian law—rather than specific statutory authority—as underlying the directives for federal-tribal consultation.than specific statutory authority—as underlying the directives for federal-tribal consultation.126
    125 This reliance on the federal trust responsibility is then reflected in many of the consultation This reliance on the federal trust responsibility is then reflected in many of the consultation
    regulations enacted by executive agencies through regulation or internal policy documents.regulations enacted by executive agencies through regulation or internal policy documents.127
    126 As described in more detail above, the presidential documents also explicitly disclaim the As described in more detail above, the presidential documents also explicitly disclaim the
    creation of any new, legally enforceable rights.creation of any new, legally enforceable rights.128127 Some courts have thus declined to rule that Some courts have thus declined to rule that
    Tribes can seek judicial enforcement of the tribal rights to consultation contained in these Tribes can seek judicial enforcement of the tribal rights to consultation contained in these
    executive orders and presidential memoranda.executive orders and presidential memoranda.129128 As one court put it, As one court put it, “"the plain language of the plain language of
    Executive Order 13175 does not provide any right enforceable in this judicial action alleged by Executive Order 13175 does not provide any right enforceable in this judicial action alleged by
    the Tribe.the Tribe.”130
    "129 Second, when courts do assess the sufficiency of tribal consultation, their approach generally Second, when courts do assess the sufficiency of tribal consultation, their approach generally
    reflects an understanding of consultation as communication-based, not consensus- or consent-reflects an understanding of consultation as communication-based, not consensus- or consent-
    based. In practice, this often means that courts may (1) focus on procedural aspects of based. In practice, this often means that courts may (1) focus on procedural aspects of
    consultation rather than substantive ones and (2) defer to agenciesconsultation rather than substantive ones and (2) defer to agencies’' interpretations of their interpretations of their
    consultative responsibilities. For example, in one case, a court determined that the FCC had met consultative responsibilities. For example, in one case, a court determined that the FCC had met
    its consulting obligations despite a Tribeits consulting obligations despite a Tribe’'s complaints that the agency simply conducted listening s complaints that the agency simply conducted listening
    sessions, briefings, and conference calls and delivered remarks.sessions, briefings, and conference calls and delivered remarks.131130 The court criticized the Tribe The court criticized the Tribe
    for offering for offering “"no standard by which to judge ... whether a no standard by which to judge ... whether a ‘'listening sessionlistening session’' or a conference call or a conference call
    qualifies as a consultationqualifies as a consultation”" and concluded that the agency and concluded that the agency’'s actions satisfied both the agencys actions satisfied both the agency’s
    's and the dictionaryand the dictionary’'s definition of consultation.s definition of consultation.132
    131 An agencyAn agency’'s compliance (or lack thereof) with its own regulations or guidance, therefore, may s compliance (or lack thereof) with its own regulations or guidance, therefore, may
    provide a basis for judicial enforcement.provide a basis for judicial enforcement.133132 Examples of Tribes successfully raising challenges to Examples of Tribes successfully raising challenges to
    agency consultation often involve failures that courts may perceive as fundamental, such as agency consultation often involve failures that courts may perceive as fundamental, such as
    finalizing decisions beforehand, concealing important information, or failing to consult with finalizing decisions beforehand, concealing important information, or failing to consult with
    particular Tribes altogether. In one case, a court found that an agency had insufficiently consulted particular Tribes altogether. In one case, a court found that an agency had insufficiently consulted
    with a Tribe after an agency leader acknowledged at trial that the agency had already made its with a Tribe after an agency leader acknowledged at trial that the agency had already made its
    decision before consulting.decision before consulting.134133 In another, the court found that although the BIA had held In another, the court found that although the BIA had held “"three three
    rounds of consultation meetingsrounds of consultation meetings”" about a proposed restructuring, it failed to give Tribes notice that the restructuring "could result in the loss of funding to Indian schools."134 about a proposed restructuring, it failed to give Tribes notice

    126 See, e.g., E.O. 13175 (describing the United States’ “unique legal relationship with Indian tribal governments as set
    forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions” and noting that
    “[s]ince the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under
    its protection”—i.e., the United States has recognized a trust responsibility).
    127 See, e.g., Federal Transit Administration, Tribal Consultation, at https://www.transit.dot.gov/regulations-and-
    guidance/environmental-programs/tribal-consultation (explaining that “[t]he need and responsibility for Federal Transit
    Administration to consult with Indian Tribes is based on the Federal trust relationship”).
    128 See, e.g., E.O. 13084 (explaining that the order “does not … create any right, benefit, or trust responsibility,
    substantive or procedural, enforceable at law or equity by a party against the United States”).
    129 See., e.g., Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995) (“Executive orders without
    specific foundation in congressional action are not judicially enforceable in private civil suits. … As argued by both the
    tribe and the BIA, this executive memorandum was intended primarily as a political tool for implementing the
    President’s personal Indian affairs policy and not as a legal framework enforceable by private civil action.”).
    130 Northern Arapaho Tribe, 118 F. Supp. 3d at 1281.
    131 United Keetoowah Band of Cherokee Indians in Oklahoma v. Fed. Commc’ns Comm’n, 933 F.3d 728, 750 (D.C.
    Cir. 2019).
    132 Ibid.
    133 For more information about guidance documents, see CRS Legal Sidebar LSB10591, Agency Use of Guidance
    Documents    , by Kate R. Bowers.
    134 Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 710 (8th Cir. 1979).
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    that the restructuring “could result in the loss of funding to Indian schools.”135 That omission, said That omission, said
    the court, was the court, was “"not the meaningful consultation required by BIA policynot the meaningful consultation required by BIA policy”" because because “"[f]air notice of [f]air notice of
    agency intentions requires telling the truth and keeping promises.agency intentions requires telling the truth and keeping promises.”136"135 In a third case, the Bureau In a third case, the Bureau
    of Land Management (BLM) provided aggregated evidence of its consultation with Tribes, of Land Management (BLM) provided aggregated evidence of its consultation with Tribes,
    agencies, and the public but was unable to detail its consultative efforts with the Tribe seeking agencies, and the public but was unable to detail its consultative efforts with the Tribe seeking
    judicial enforcement.judicial enforcement.137136 As the court explained, the fact As the court explained, the fact “"that BLM did a lot of consulting in that BLM did a lot of consulting in
    general doesngeneral doesn’'t show that its consultation with the Tribe was adequate under the regulations.t show that its consultation with the Tribe was adequate under the regulations.”138
    "137 Perhaps because these examples of successful challenges to insufficient agency consultation Perhaps because these examples of successful challenges to insufficient agency consultation
    represent somewhat glaring agency failures, a perception may persist that consultation is rarely represent somewhat glaring agency failures, a perception may persist that consultation is rarely
    judicially enforceable. In the context of protecting cultural resources and sacred spaces, two legal judicially enforceable. In the context of protecting cultural resources and sacred spaces, two legal
    scholars wrote that scholars wrote that “"with few exceptions, tribes were unsuccessful in using the law and its with few exceptions, tribes were unsuccessful in using the law and its
    consultation procedures as a stand-alone way to protect sacred sites and traditional cultural consultation procedures as a stand-alone way to protect sacred sites and traditional cultural
    properties.properties.”139
    "138 Some Tribes may be most interested in judicial enforcement to guarantee tribal input Some Tribes may be most interested in judicial enforcement to guarantee tribal input before
    agency actions (rather than suing the agency for corrective steps afterward); this may lead them to agency actions (rather than suing the agency for corrective steps afterward); this may lead them to
    seek preliminary injunctions to halt the relevant federal action from going forward while the court seek preliminary injunctions to halt the relevant federal action from going forward while the court
    determines whether the agency engaged in meaningful consultation. Courts have explained that determines whether the agency engaged in meaningful consultation. Courts have explained that
    preliminary injunctions are “injunctions are "an extraordinary remedyan extraordinary remedy”" appropriate only in narrow circumstances appropriate only in narrow circumstances
    that are often difficult to meet.that are often difficult to meet.140139 One such court denied an attempt to stop construction based on One such court denied an attempt to stop construction based on
    claims that the government had inadequately consulted Tribes about potential damage to Native claims that the government had inadequately consulted Tribes about potential damage to Native
    American graves.American graves.141140 In a related case, an appeals court noted, In a related case, an appeals court noted, “"In casting [the Department of In casting [the Department of
    Homeland SecurityHomeland Security’'s] consultation as too narrow,s] consultation as too narrow,”" plaintiffs failed to show plaintiffs failed to show “"that its scope that its scope
    violated a specific prohibition in the statute that is clear and mandatory,violated a specific prohibition in the statute that is clear and mandatory,” “" "was obviously beyond was obviously beyond
    the terms of the statute,the terms of the statute,”" or was or was “"far outside the scope of the task that Congress gave itfar outside the scope of the task that Congress gave it”"—at least —at least
    one of which was necessary for the court to invalidate what the agency had done.one of which was necessary for the court to invalidate what the agency had done.142141 The high The high
    procedural hurdles of preliminary injunctions may contribute to observations that consultation procedural hurdles of preliminary injunctions may contribute to observations that consultation
    requirements are challenging to enforce, even when courts may be sympathetic to a Triberequirements are challenging to enforce, even when courts may be sympathetic to a Tribe’s
    's claims.claims.143
    142 On the whole, courts generally seem to have avoided grappling with more substantive questions On the whole, courts generally seem to have avoided grappling with more substantive questions
    like how best to quantify or qualify consultation, the comparative values of different kinds of

    135 Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 784 (D.S.D. 2006) (emphasizing that “[b]oth Congress
    and the BIA have articulated a policy that mandates consultation between the BIA and the tribes in all matters affecting
    education” and issuing a preliminary injunction to block the planned agency action).
    136 Ibid., p. 785 (citing Lower Brule Sioux Tribe, 911 F. Supp. at 399).
    137 Quechan Tribe of the Fort Yuma Indian Reserv. v. Dep’t of Interior, 755 F. Supp. 2d 1104, 1112 (S.D. Cal. 2010).
    138 Ibid. (“Indeed, Defendants’ grouping tribes together (referring to consultation with ‘tribes’) is unhelpful: Indian
    tribes aren’t interchangeable, and consultation with one tribe doesn’t relieve the BLM of its obligation to consult with
    any other tribe that may be a consulting party under NHPA.”).
    139 Mills & Nie, “Bridges.”
    140 Manzanita Band of the Kumeyaay Nation v. Wolf, 496 F. Supp. 3d 257, 260 (D.D.C. 2020).
    141 Ibid., pp. 268-269.
    142 N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1262 (D.C. Cir. 2020) (discussing a nontribal nonprofit’s challenge
    to allegedly insufficient consultation with stakeholders regarding the construction of barriers and related infrastructure
    along the U.S.-Mexico border).
    143 See, e.g., Bartell Ranch LLC v. McCullough, 558 F. Supp. 3d 974, 991 (D. Nev. 2021) (“[W]hile the Court finds the
    Tribes’ arguments regarding the spiritual distress that the [federal action] will cause persuasive, the Court must
    nonetheless reluctantly conclude that they have not shown sufficiently specific irreparable harm that aligns with the
    relief they could ultimately obtain in this case.”).
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    like how best to quantify or qualify consultation, the comparative values of different kinds of consultation, or whether there are circumstances in which consultation must result in a change consultation, or whether there are circumstances in which consultation must result in a change
    from the proposed agency action. This perhaps reflects a sense that these determinations, if they from the proposed agency action. This perhaps reflects a sense that these determinations, if they
    are made at all, should be legislative rather than judicial. Questions of how consultation can best are made at all, should be legislative rather than judicial. Questions of how consultation can best
    be measured, and by whom, may invite further consideration by lawmakers and interested parties; be measured, and by whom, may invite further consideration by lawmakers and interested parties;
    in particular, weighing the pros and cons of a single, unified statutory standard for federal-tribal in particular, weighing the pros and cons of a single, unified statutory standard for federal-tribal
    consultation may be ripe for consideration by Congress.consultation may be ripe for consideration by Congress.
    Similarly, Similarly, whichwhich federal actions could or should be subject to tribal consultation is a perennial federal actions could or should be subject to tribal consultation is a perennial
    topic for congressional considerationtopic for congressional consideration. . Congress does not currently require across-the-board Congress does not currently require across-the-board
    consultation for all federal actions that may affect tribal interests, whichconsultation for all federal actions that may affect tribal interests, which may reflect a balancing may reflect a balancing
    of competing interestsof competing interests. . For example, some For example, some membersMembers of Congress have opposed bills that would of Congress have opposed bills that would
    broaden consultation requirements, stating that new requirementsbroaden consultation requirements, stating that new requirements would would make the federal-tribal make the federal-tribal
    consultation processconsultation process “ "lengthy and unrealistic.lengthy and unrealistic.”144 "143 Furthermore, some Members of Congress have Furthermore, some Members of Congress have
    stated that expanded federal-tribal consultation requirements could hinder stated that expanded federal-tribal consultation requirements could hinder “"needed economic needed economic
    development and critical infrastructure development for Tribesdevelopment and critical infrastructure development for Tribes.”145
    ."144 With these types of concerns in mind, Congress With these types of concerns in mind, Congress maymay choose to maintain the current statutory choose to maintain the current statutory
    framework, which requires consultation only for specific federal actions. As described in framework, which requires consultation only for specific federal actions. As described in
    “"Statutory Consultation Requirements,”," some statutes or their implementing regulations may some statutes or their implementing regulations may
    mandate tribal consultation when federal actions may affect tribal historic, cultural, or religious mandate tribal consultation when federal actions may affect tribal historic, cultural, or religious
    sites.sites.146 145 Beyond that, Congress has, at times, required federal-tribal consultation for actions by Beyond that, Congress has, at times, required federal-tribal consultation for actions by
    federal land management agencies. For example, some laws have required federal-tribal federal land management agencies. For example, some laws have required federal-tribal
    consultation in the establishment of national monuments, and proposed legislation would impose consultation in the establishment of national monuments, and proposed legislation would impose
    tribal consultation requirements for the development of federal land management planstribal consultation requirements for the development of federal land management plans.147.146
    Congress could also choose to remove or limit consultation Congress could also choose to remove or limit consultation requirementsrequirements on particular topics or to on particular topics or to
    refrain from imposing additional consultative burdens in future legislation.refrain from imposing additional consultative burdens in future legislation.
    Another option would be to expand consultation requirements to additional categories or types ofAnother option would be to expand consultation requirements to additional categories or types of
    federal actions, such as internal agency processesfederal actions, such as internal agency processes. For instance, S. 5240 would require federal-tribal consultation during the budget formulation process at USDA. In the 118th Congress, S. 5636 would have directed OMB to develop a tribal consultation policy. . For instance, bills were introduced in the 117th
    and 118th Congresses that would have required agencies such as OMB and USDA to consult with

    144 See Statement of Rep. Paul Gosar, U.S. Congress, House Natural Resources Committee, “Legislative Hearing on
    H.R. 312, ‘Mashpee Wampanoag Tribe Reservation Reaffirmation Act’; H.R. 375, to Amend the Act of June 18, 1934,
    to Reaffirm the Authority of the Secretary of the Interior to Take Land into Trust for Indian Tribes, and for Other
    Purposes; and Discussion Draft of H.R. _, ‘RESPECT Act,’” 116th Cong., 1st sess., April 3, 2019, H.Hrg. 35-971
    (Washington: GPO, 2019), p. 49 (hereinafter “2019 RESPECT Act hearing”).
    145 See Statement of Rep. Bruce Westerman, Ranking Member, “Respect Act hearing,” p. 7, at
    https://docs.house.gov/meetings/II/II24/20210520/112660/HHRG-117-II24-MState-W000821-20210520.pdf (“While I
    strongly believe that federal agencies should conduct proper Tribal consultation, and projects should include tribal
    voices, this bill would be extremely harmful by significantly slowing down agency actions, which could hinder needed
    economic development and critical infrastructure development for Tribes.”).
    146 See, e.g., Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) (under the American Indian Religious Freedom Act
    of 1978, the federal government should “ordinarily” consult with tribal leaders before approving a project “likely to
    affect religious practices”); Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep’t of the Interior, 755 F.
    Supp. 2d 1104, 1109 (S.D. Cal. 2010) (Under NFPA regulations at 36 C.F.R. §800.2, “consulting parties that are Indian
    Tribes are entitled to special consideration in the course of an agency’s fulfillment of its consultation obligations”)
    (emphasis in original).
    147 For example, Congress mandated that the Secretary of the Interior consult with the Minnesota Chippewa Tribe and
    the Grand Portage Band of Chippewa Indians, Minnesota, in the planning of facilities or developments upon the lands
    adjacent to the Grand Portage National Monument (P.L. 85-910). See also H.R. 5243, Northern Nevada Economic
    Development, Conservation, and Military Modernization Act of 2021 (117th Cong.); H.R. 7665, REC Act of 2022
    (117th Cong.); and H.R. 6148/S. 3186, Advancing Tribal Parity on Public Lands Act (118th Cong.).
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    Tribes on budget formulation.148 Similarly, Congress has, at times, proposed and required Similarly, Congress has, at times, proposed and required
    agencies to engage in tribal consultations and negotiated rulemaking to ensure tribal input on agencies to engage in tribal consultations and negotiated rulemaking to ensure tribal input on
    specific initiatives.specific initiatives.149147 In addition, Congress could consider whether, or to what extent or in what In addition, Congress could consider whether, or to what extent or in what
    contexts, its policy goals would align with broadening, maintaining, or restricting a Tribe or other contexts, its policy goals would align with broadening, maintaining, or restricting a Tribe or other
    Indigenous entityIndigenous entity’'s ability to prevent or delay agency actions. Other options might include s ability to prevent or delay agency actions. Other options might include
    considering the comparative values of different types of federal-tribal consultation, including less considering the comparative values of different types of federal-tribal consultation, including less
    ad hoc forms such as working groups and advisory committees comprising tribal members.ad hoc forms such as working groups and advisory committees comprising tribal members.
    Finally, Congress could consider broadly expanding consultation requirements to most or all Finally, Congress could consider broadly expanding consultation requirements to most or all
    federal actions affecting Tribes. federal actions affecting Tribes. Some Members of Congress have introduced bills setting consultation Members of Congress have introduced bills setting consultation
    standards that would potentially expand the number and types of activities requiring standards that would potentially expand the number and types of activities requiring
    consultation.consultation.150148 Some of these bills would have expanded the list of activities to include agency Some of these bills would have expanded the list of activities to include agency
    guidance, clarification, standards, or sets of principlesguidance, clarification, standards, or sets of principles. . For example, For example, thethe RESPECT Act, H.R. RESPECT Act, H.R.
    3587 from the 3587 from the 117th117th Congress, would have required federal-tribal consultation before an agency Congress, would have required federal-tribal consultation before an agency
    conducted conducted “"any proposed Federal activity or finaliz[ed] any Federal regulatory action that may any proposed Federal activity or finaliz[ed] any Federal regulatory action that may
    have Tribal impacts.have Tribal impacts.”151 For a summary of selected consultation legislation, see the Appendix.
    "149 Representation of the Parties (“"Who?”)
    ") Federal agencies, Tribes, and other Indigenous entities have debated about who should participate Federal agencies, Tribes, and other Indigenous entities have debated about who should participate
    in federal-tribal consultations.in federal-tribal consultations.152150 One issue is the authority of the federal representative. In One issue is the authority of the federal representative. In
    addition, concerns have been raised about whether only Tribes may engage in federal-tribal addition, concerns have been raised about whether only Tribes may engage in federal-tribal
    consultation or whether other Indigenous entities may also engage.consultation or whether other Indigenous entities may also engage.
    Participation of Federal Agencies
    Who should represent the federal government during consultations is a source of debate.Who should represent the federal government during consultations is a source of debate.153151 Tribes Tribes
    generally advocate for high-level officials with decisionmaking authority to participate in federal-generally advocate for high-level officials with decisionmaking authority to participate in federal-
    tribal consultationstribal consultations to ensure that the federal representative is authorized or able to answer to ensure that the federal representative is authorized or able to answer
    questions.questions.154 152 When the federal representative cannot make decisions or answer questions, Tribes When the federal representative cannot make decisions or answer questions, Tribes
    and other Indigenous entities may have a one-sided dialogue, which they may not consider
    “meaningful” consultation.155

    148 See S. 5186 from the 117th Cong., which directed OMB to develop a tribal consultation policy. See also H.R. 5113
    and S. 3270 from the 118th Cong., which both proposed requiring federal-tribal consultation during the budget
    formulation process at the USDA.
    149 For example, the PROGRESS for Indian Tribes Act (P.L. 116-180) required the DOI to implement the act by setting
    up a negotiated rulemaking committee with tribal members. In addition, H.R. 4386 and S. 981 in the 117th Cong.
    proposed establishing requirements for tribal consultation prior to the sale or transfer of certain federal civilian real
    property.
    150 See, e.g., H.R. 5608 from the 110th Cong.; H.R. 5023 from the 111th Cong.; H.R. 1600 from the 113th Cong.; H.R.
    5379 from the 114th Cong.; and the RESPECT Act, H.R. 3587 from the 117th Cong. H.R. 5608 from the 110th Cong.
    would have required DOI, the Indian Health Service, and NIGC to conduct federal-tribal consultation for “any measure
    by the agency that has or is likely to have a direct effect on one or more Tribes.”
    151 H.R. 3587.
    152 See, e.g., ACHP, “Improving Tribal Consultation in Infrastructure Projects,” May 14, 2017, p. 4, at https://www.
    achp.gov/sites/default/files/reports/2018-11/ImprovingTribalConsultationinInfrastructureProjectsFinalApril
    272017_0.pdf.
    153 Ibid.
    154 See Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP,
    hereinafter “2019 RESPECT Act hearing,” p. 53.
    155 Ibid.
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    and other Indigenous entities may have a one-sided dialogue, which they may not consider "meaningful" consultation.153 In addition, some Tribes have stated that the federal government "must not delegate its consultation obligation to third party entities" such as nonprofit organizations or industry representatives.154 On the other hand, agencies may find it impractical to consistently have a decisionmaker On the other hand, agencies may find it impractical to consistently have a decisionmaker
    participate in federal-tribal consultations. First, agency leaders may have competing demands on participate in federal-tribal consultations. First, agency leaders may have competing demands on
    their time, which may result in the agency staggering consultations to accommodate their their time, which may result in the agency staggering consultations to accommodate their
    schedules. In addition, depending on the federal action, agency staff may be more knowledgeable schedules. In addition, depending on the federal action, agency staff may be more knowledgeable
    than the federal leader or decisionmaker.than the federal leader or decisionmaker.
    Congress may consider whether to designate parties to federal-tribal consultations. For example, Congress may consider whether to designate parties to federal-tribal consultations. For example,
    it could limit federal-tribal consultation to officials with decisionmaking authority. During the it could limit federal-tribal consultation to officials with decisionmaking authority. During the
    Biden Administration, some agencies Biden Administration, some agencies have committed to this practice, although Congress could committed to this practice, although Congress could
    consider whether to mandate this practice government-wide.consider whether to mandate this practice government-wide.156155 If so, Congress may need to If so, Congress may need to
    define define “"decisionmaking authoritydecisionmaking authority”"; for example, whether decisionmakers would include federal ; for example, whether decisionmakers would include federal
    employees at or above a certain grade level.employees at or above a certain grade level.
    Participation of Tribes and Other Indigenous Entities
    Which Tribes or other Indigenous entities should be eligible to participate in federal-tribal Which Tribes or other Indigenous entities should be eligible to participate in federal-tribal
    consultations is another issue. Some Tribes and tribal groups have argued that their status as consultations is another issue. Some Tribes and tribal groups have argued that their status as
    sovereign nations gives them exclusive access to federal-tribal consultation.sovereign nations gives them exclusive access to federal-tribal consultation.157 156 In other words, In other words,
    they assert that the United States has only a government-to-government relationship with Tribes, they assert that the United States has only a government-to-government relationship with Tribes,
    including a duty to uphold theincluding a duty to uphold the federal trust responsibility.federal trust responsibility.158157 Furthermore, they claim that the Furthermore, they claim that the
    participation of other Indigenous entities such as ANCs participation of other Indigenous entities such as ANCs “"undermines the government-to-undermines the government-to-
    government relationship between Tribal Nations and the United States.government relationship between Tribal Nations and the United States.”159"158 Therefore, certain Therefore, certain
    Tribes have argued against the participation of other Indigenous entities in federal consultation.Tribes have argued against the participation of other Indigenous entities in federal consultation.160
    159 On the other hand, some other Indigenous entities assert that they should have opportunities to On the other hand, some other Indigenous entities assert that they should have opportunities to
    consult alongside Tribes.consult alongside Tribes.161 Still Some other Indigenous entities assert that they should be treated like other Indigenous entities assert that they should be treated like
    Tribes because they are Native Americans. For example, some Native Hawaiians have asked for Tribes because they are Native Americans. For example, some Native Hawaiians have asked for
    “"funding and programming equity for all Native Americans, including American Indians, Alaska funding and programming equity for all Native Americans, including American Indians, Alaska
    Natives, and Native Hawaiians.”162 In addition, other Indigenous entities have argued that they
    have a right to consult based on statute rather than a historic government-to-government
    relationship. For example, ANCs have argued that Congress has recognized them, thereby
    providing them with a statutory right to consultation.163
    Natives, and Native Hawaiians."160 Members of Congress may continue to consider whether to Members of Congress may continue to consider whether to maintain the status quo or be more inclusive in consultation be more inclusive in consultation
    requirements (all Tribes and other Indigenous entities) or less inclusive (only Tribes). Congress

    156 For example, DOI’s 2022 policy defined federal-tribal consultation as having both department and tribal officials
    with decisionmaking authorities present at the session (DOI, “Consultation DM,” p. 2). In addition, the 2023 USACE
    Tribal Consultation Policy’s definition of consultation states that it involves “USACE and Tribal officials with
    decision-making authority.”
    157 See, e.g., USET, “Letter,” pp. 2-3.
    158 Yellen v. Chehalis, 594 U.S. ___ (2021), Brief for Respondents Confederated Tribes of the Chehalis Reservation, et
    al., March 24, 2021, p. 45, at https://sct.narf.org/documents/alaska_native_corp_v_chehalis/brief_respondent.pdf.
    159 USET, “Letter,” p. 2-3.
    160 Ibid.
    161 Letter from Kim Reitimeier, President, Alaska Regional Association, to Executive Office of the President, February
    22, 2022, p. 2 (hereinafter Reitimeier, “Letter”). Available to congressional clients from the authors on request.
    162 Prepared Statement of Hon. Carmen “Hulu” Lindsey, Chair, Board of Trustees, Office of Hawaiian Affairs, U.S.
    Congress, Senate Indian Affairs, Upholding the Federal Trust Responsibility: Funding and Program Access for
    Innovation for Native Hawaiians—Part 1 and 2    , 117th Cong., 2nd sess., June 2022, S.Hrg. 117-318 (Washington: GPO,
    2022), p. 4.
    163 Reitimeier, “Letter,” p. 2.
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    requirements (all Tribes and other Indigenous entities) or less inclusive (only Tribes). Congress has, at times, encouraged or required federal-tribal consultation with other Indigenous entitieshas, at times, encouraged or required federal-tribal consultation with other Indigenous entities
    such as ANCs.164.161 For example, the Consolidated Appropriations Act, 2004, as amended, required For example, the Consolidated Appropriations Act, 2004, as amended, required
    federal agencies to consult with ANCs on the same basis as Tribes under federal agencies to consult with ANCs on the same basis as Tribes under E.O. 13175.165EO 13175.162 In In
    addition, NHPA addition, NHPA authorizesrequires consultation with consultation with NHOs.166ANCs and NHOs in certain scenarios.163 In other instances, bills introduced would In other instances, bills introduced would
    have limited consultation to Tribes, although none have been enacted into law.have limited consultation to Tribes, although none have been enacted into law.167164 Several agency Several agency
    policies explicitly provide for consultation with Tribes, ANCs, and NHOs, and Congress may policies explicitly provide for consultation with Tribes, ANCs, and NHOs, and Congress may
    consider whether consistency across the federal government would be appropriate (see discussion consider whether consistency across the federal government would be appropriate (see discussion
    of agency policies inof agency policies in “ "Federal Agency Policies”).
    "). Timing of consultation (“When?”)
    Consultation ("When?") Some Tribes, other Indigenous entities, and scholars have raised concerns about the timeliness of Some Tribes, other Indigenous entities, and scholars have raised concerns about the timeliness of
    federal-tribal consultation and the adequacy of opportunities to provide inputfederal-tribal consultation and the adequacy of opportunities to provide input.168.165 Many Tribes and Many Tribes and
    other Indigenous entities have asserted that early and consistent agency engagement is essential other Indigenous entities have asserted that early and consistent agency engagement is essential
    for meaningful federal-tribal consultation.for meaningful federal-tribal consultation.169166 For example, they have asked federal agencies to For example, they have asked federal agencies to
    provide them with sufficient information about a proposed federal action early in the process to provide them with sufficient information about a proposed federal action early in the process to
    determine whether, and to what degree, their interests may be affected.determine whether, and to what degree, their interests may be affected.170167 Furthermore, some have Furthermore, some have
    argued that federal consultation policies should provide multiple communication opportunities argued that federal consultation policies should provide multiple communication opportunities
    during the course of a project or policy development process.during the course of a project or policy development process.171
    168 Some stakeholders, including Members of Congress, have expressed concern that timing Some stakeholders, including Members of Congress, have expressed concern that timing
    requirements related to federal-tribal consultation could delay federal actions.requirements related to federal-tribal consultation could delay federal actions.172169 For example, For example,
    delays could result if an agency must consult with Tribes at several points in its decisionmaking delays could result if an agency must consult with Tribes at several points in its decisionmaking
    process or wait for responses. For this reason, some industry stakeholders have asked agencies to process or wait for responses. For this reason, some industry stakeholders have asked agencies to
    include include “"reasonable time limitsreasonable time limits”" for tribal consultation. for tribal consultation.173170 In addition, a Tribe In addition, a Tribe’'s need for time to s need for time to
    evaluate proposed federal actions may conflict with pressure for the federal agency to move evaluate proposed federal actions may conflict with pressure for the federal agency to move
    expediently through review and permitting processes.expediently through review and permitting processes.174171 Some Members of Congress have Some Members of Congress have
    expressed concerns that broad consultation expressed concerns that broad consultation requirementsrequirements would cause would cause “catastrophic”"catastrophic" harm to harm to

    164 For example, the ANCSA (43 U.S.C. §§1601 et seq.) highlighted the need to provide for “the real economic and
    social needs of Natives … with maximum participation by Natives in decisions affecting their rights and property.”
    165 P.L. 108-199, Div. H, §161, (2004), as amended.
    166 54 U.S.C. §302706(b).
    167 See, e.g., H.R. 5608 from the 110th Cong.
    168 For a detailed discussion of tribal comments about the timing of federal-tribal consultation, see DOI, “Improving
    Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions,” January 2017, p. 17, at
    https://www.doi.gov/sites/doi.gov/files/report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See
    also Statement of Brian D. Vallo, Governor, Pueblo of Acoma, Legislative Hearing on H.R. 2930, H.R. 438, and
    RESPECT Act, 117th Cong., 1st sess., May 20, 2021.
    169 See, e.g., DOI, “Infrastructure Report,” p. 17.
    170 Ibid.
    171 NCAI, “Call to Congress.”
    172 See Statement of Kevin Washburn, Professor of Law, University of Iowa College of Law,
    Iowa City, Iowa, “2019 RESPECT Act hearing,” p. 22.
    173 Interstate Natural Gas Association of America and American Gas Association, “INGAA AGA Comments on Corps
    Notice,” p. 2, at https://www.regulations.gov/comment/COE-2022-0006-0088.
    174 Interagency Working Group on Mining Laws, Regulations, and Permitting, Recommendations to Improve Mining on
    Public Lands    , September 2023, p. 74, at https://www.doi.gov/sites/doi.gov/files/mriwg-report-final-508.pdf (hereinafter
    Interagency Working Group, “Mining Recommendations”).
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    local communities by increasing permitting times, which would negatively impact activities such local communities by increasing permitting times, which would negatively impact activities such
    as grazingas grazing and energy productionand energy production.175
    .172 Federal regulations sometimes include timing guidance for federal-tribal consultation, and bills Federal regulations sometimes include timing guidance for federal-tribal consultation, and bills
    have been introduced that would set timing standards. For example, NHPA regulations require have been introduced that would set timing standards. For example, NHPA regulations require
    that federal-tribal consultations that federal-tribal consultations “"should commence early in the planning process.commence early in the planning process.”176"173 Since the Since the 116th
    Congress, some 116th Congress, some introduced bills would introduced bills would requirerequire agencies to consult with Tribes before issuing agencies to consult with Tribes before issuing
    permits or within a certain period after issuing permitspermits or within a certain period after issuing permits.177.174 Some bills also have included multiple Some bills also have included multiple
    mandatory timemandatory time frames during the proposed consultation process to allow Tribes and other frames during the proposed consultation process to allow Tribes and other
    Indigenous entities time to respond to agency outreach.Indigenous entities time to respond to agency outreach.178
    175 Agency Consideration of Input Provided by Tribes and Other
    Indigenous Entities (“"How?”)
    ") How agencies consider input provided by Tribes and other Indigenous entities in decisionmaking How agencies consider input provided by Tribes and other Indigenous entities in decisionmaking
    is another issue. Federal agencies have varying methods for communicating with Tribes and other is another issue. Federal agencies have varying methods for communicating with Tribes and other
    Indigenous entities during federal-tribal consultations. Historically, Indigenous entities during federal-tribal consultations. Historically, somesome agencies considered agencies considered
    their federal-tribal consultation obligations met through one-way communication, as outlined in their federal-tribal consultation obligations met through one-way communication, as outlined in
    “Communication.”"Communication." Some tribal advocates have criticized this approach, because it does Some tribal advocates have criticized this approach, because it does not not allow allow
    for their inputfor their input,, and a and a centralcentral consultation objective for Tribes is to provide federal decisionmakers consultation objective for Tribes is to provide federal decisionmakers
    with information to support decisions that protect tribal interestswith information to support decisions that protect tribal interests.179 .176 Tribal advocates have stated Tribal advocates have stated
    that one-way communication treats that one-way communication treats TribesTribes as members of the public and therefore as as members of the public and therefore as “"entitled to entitled to
    only limited information and the ability to submit comments.only limited information and the ability to submit comments.”180"177 Instead, they argue, Tribes are Instead, they argue, Tribes are
    sovereign nations whose concerns should be considered separately from the publicsovereign nations whose concerns should be considered separately from the public’s.181's.178 Finally, Finally,
    some Tribes and other Indigenous entities have asked agencies to communicate with them after some Tribes and other Indigenous entities have asked agencies to communicate with them after
    consultations regarding how their input was incorporated into agency decisions.consultations regarding how their input was incorporated into agency decisions.182
    179 In addition, Tribes and other Indigenous entities often advocate that agencies should not only In addition, Tribes and other Indigenous entities often advocate that agencies should not only
    communicate but also strive to reach consensus or secure FPIC.communicate but also strive to reach consensus or secure FPIC.183180 If proposed federal action may If proposed federal action may
    impact areas of cultural or economic importance, especially treaty-protected rights to those areas, impact areas of cultural or economic importance, especially treaty-protected rights to those areas,
    many Tribes and other Indigenous entities have asserted that FPIC should be required.many Tribes and other Indigenous entities have asserted that FPIC should be required.184181 For For
    example, some Tribes with treaty rights have asked federal agencies to stop example, some Tribes with treaty rights have asked federal agencies to stop actions until "a consent-based process" that "respects and prioritizes treaty rights impacts" is developed.182 Others have asked agencies to use the principle of "mutual concurrence" to identify "traditional and customary use areas" and design conservation measures.183actions until “a

    175 Statement of Rep. Paul Gosar, “2019 RESPECT Act hearing,” p. 49.
    176 36 C.F.R. §800.2(c)(2)(ii)(A).
    177 See, e.g., H.R. 2532 from the 116th Cong. and H.R. 3307 from the 118th Cong.
    178 See, e.g., H.R. 3587, RESPECT Act, Title II, from the 117th Cong.
    179 Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, “2019
    RESPECT Act hearing,” p. 53.
    180 Ibid.
    181 Ibid., p. 54.
    182 DOI, “Framing Paper: Improving Interior’s Consultation with Tribes: Development of the U.S. Department of the
    Interior’s Plan for Improving Implementation of EO 13175, Consultation and Coordination with Indian Tribal
    Governments,” p. 2, at https://www.doi.gov/sites/doi.gov/files/framing-paper-consultation-with-Tribes.pdf (hereinafter
    DOI, “Framing Paper”). See also DOI, “Infrastructure Report,” p. 18. GAO has reported that federal agencies
    inconsistently communicate about final agency decisions; see GAO, Tribal Consultation: Additional Federal Actions
    Needed for Infrastructure Projects    , GAO-19-22, March 2019, pp. 21, 40-41, at https://www.gao.gov/products/gao-19-
    22 (hereinafter GAO, “Tribal Consultation: Infrastructure”).
    183 See, e.g., BIA, “DM Comments,” p. 5 (“Several Tribes agreed with the intent of the consensus-seeking model.”).

    184 White House, “Best Practices Guide,” p. 12.
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    consent-based process” that “respects and prioritizes treaty rights impacts” is developed.185
    Others have asked agencies to use the principle of “mutual concurrence” to identify “traditional
    and customary use areas” and design conservation measures.186 Some agencies have required Some agencies have required
    FPIC through regulations. For example, the NAGPRA regulations, which were updated in FPIC through regulations. For example, the NAGPRA regulations, which were updated in
    December 2023, require museums and federal agencies to December 2023, require museums and federal agencies to “"obtain [FPIC] from lineal obtain [FPIC] from lineal
    descendants, Indian Tribes, or [NHOs] prior to allowing any exhibition of, access to, or research descendants, Indian Tribes, or [NHOs] prior to allowing any exhibition of, access to, or research
    on human remains or cultural itemson human remains or cultural items”" (43 C.F.R. §10.1(d)). (43 C.F.R. §10.1(d)).
    At times, federal agencies have claimed that requiring tribal consensus or consent for agency At times, federal agencies have claimed that requiring tribal consensus or consent for agency
    actions may conflict with their statutory missions or be impractical.actions may conflict with their statutory missions or be impractical.187184 Agencies have asserted that Agencies have asserted that
    an FPIC or a consensus requirement would potentially require agencies to violate their statutory an FPIC or a consensus requirement would potentially require agencies to violate their statutory
    missions. For example, agencies have asserted that while they are often sympathetic to tribal missions. For example, agencies have asserted that while they are often sympathetic to tribal
    points of view, statutory or regulatory constraints sometimes require agencies to act against tribal points of view, statutory or regulatory constraints sometimes require agencies to act against tribal
    interests.interests.188185 Finally, agencies may oppose using an FPIC standard because if a proposed federal Finally, agencies may oppose using an FPIC standard because if a proposed federal
    action involves many Tribes and other Indigenous entities, it may take time to reach consensus, action involves many Tribes and other Indigenous entities, it may take time to reach consensus,
    which could delay federal action.which could delay federal action.189
    186 In addition, In addition, non-tribalnontribal stakeholders may oppose granting Tribes a right of consensus or FPIC in stakeholders may oppose granting Tribes a right of consensus or FPIC in
    federal decisions. For example, states such as North Dakota have asserted that they should also federal decisions. For example, states such as North Dakota have asserted that they should also
    have their voices heard in federal-tribal discussions.have their voices heard in federal-tribal discussions.190187 In the context of water-related decisions, In the context of water-related decisions,
    North Dakota has expressed particular concern regarding federal decisions based on tribal treaty North Dakota has expressed particular concern regarding federal decisions based on tribal treaty
    rights, arguing that federal agencies are rights, arguing that federal agencies are “"not appropriate arbitratorsnot appropriate arbitrators”" of those claims. of those claims.191188 In In
    addition, some stakeholders have argued that the preferences of nonfederal interests in USACE addition, some stakeholders have argued that the preferences of nonfederal interests in USACE
    water resource projects should water resource projects should “"not unduly broaden the project scope or hinder consensus-not unduly broaden the project scope or hinder consensus-
    building among key stakeholders,building among key stakeholders,”" especially when their preferences conflict with those of the especially when their preferences conflict with those of the
    project’project's nonfederal sponsor.s nonfederal sponsor.192
    189 Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal
    input in federal decisionmaking. Congress has issued some direction to federal agencies on how input in federal decisionmaking. Congress has issued some direction to federal agencies on how
    to consider input from Tribes and other Indigenous entities. For example, the report to consider input from Tribes and other Indigenous entities. For example, the report
    accompanying the Department of the Interior, Environment, and Related Agencies Appropriations accompanying the Department of the Interior, Environment, and Related Agencies Appropriations
    Bill, 2023, H.R. 8262, stated that, Bill, 2023, H.R. 8262, stated that, “"On decisions made in consultation with Tribes, the Committee On decisions made in consultation with Tribes, the Committee

    185 DOI, “Secretary’s Tribal Advisory Committee, Policy Recommendations,” August 2023, p. 56, at https://kawerak.
    org/policy-recommendations-from-secretarys-tribal-advisory-committee-for-the-department-of-the-interior/.
    186 Organized Village of Kasaan et al., “Petition for USDA Rulemaking to Create a Traditional Homelands
    Conservation Rule for the Long-Term Management and Protection of Tradition and Customary Use Areas in the
    Tongass National Forest,” July 17, 2020, p. 1, at https://www.alaskawild.org/wp-content/uploads/2020/07/FINAL-
    Southeast-Tribes-APA-Petition-7-17-2020-Nine-Tribe-Signatures.pdf.
    187 See, e.g., Statement of Philip N. Hogen, Chairman, NIGC, in H.R. 5608 hearing, p 12. See also Statement of James
    Cason, Associate Deputy Secretary, DOI, H.R. 5608 hearing, p. 18-19.
    188 See, e.g., USDA Office of Tribal Relations and USDA Forest Service, “Report to the Secretary of Agriculture:
    USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites,” December 2012, pp. 9-10, at
    https://www.fs.usda.gov/spf/tribalrelations/documents/sacredsites/SacredSitesFinalReportDec2012.pdf.
    189 GAO, “Tribal Consultation-Infrastructure,” p. 30.
    190 North Dakota Department or Water Resources, “Comment on FR Doc #2024-02448,” pp. 5-6, at
    https://www.regulations.gov/comment/COE-2023-0005-0043.
    191 Ibid.
    192 National Waterways Conference, “Comment on FR Doc # 2024-02448,” pp. 27-28, at https://www.regulations.gov/
    comment/COE-2023-0005-0048. USACE projects’ nonfederal sponsors are typically state, local, or tribal entities, or
    nonprofits with the consent of the local government, that are responsible for sharing study and construction costs,
    providing real estate interests, and performing operations and maintenance for many types of USACE water resource
    projects.
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    link to page 38 Federal-Tribal Consultation: Background and Issues for Congress

    expects agencies funded in this bill to publish decision rationale in the context of and in expects agencies funded in this bill to publish decision rationale in the context of and in
    reasonable detail to the Tribal input received during consultation.reasonable detail to the Tribal input received during consultation.”193"190 In addition, some In addition, some
    regulations encourage (though do not require) consensus with Tribes, Alaska Natives, and regulations encourage (though do not require) consensus with Tribes, Alaska Natives, and
    NHOs.NHOs.194
    191 Another option would be to expand current law to require tribal FPIC for some or all federal Another option would be to expand current law to require tribal FPIC for some or all federal
    actions. While the federal government has so far declined to adopt a government-wide FPIC actions. While the federal government has so far declined to adopt a government-wide FPIC
    standard, proposed legislation has referenced FPIC. During the standard, proposed legislation has referenced FPIC. During the 115th115th through the through the 117th
    117th Congresses, proposed legislation addressing potential impacts to tribal land and resources of Congresses, proposed legislation addressing potential impacts to tribal land and resources of
    Tribes would have required FPIC.Tribes would have required FPIC.195192 For example, in the For example, in the 117th117th Congress, S. 5186 supported the Congress, S. 5186 supported the
    FPIC principle, requiring agencies to obtain tribal consent in certain situations, such as to allow FPIC principle, requiring agencies to obtain tribal consent in certain situations, such as to allow
    unused electromagnetic spectrum over tribal lands to be made available to other parties.unused electromagnetic spectrum over tribal lands to be made available to other parties.196 For a
    summary of selected legislation with consent and consensus requirements, see the Appendix.
    193 Confidentiality of Information Obtained Through Consultation
    How to treat informationHow to treat information shared during federal-tribal consultations also has been raised as an shared during federal-tribal consultations also has been raised as an
    issue. Some issue. Some Tribes and other Indigenous entitiesTribes and other Indigenous entities are reluctant to share information during are reluctant to share information during
    consultations, especially consultations, especially aboutabout sacred sites sacred sites.197 .194 While Indigenous knowledge may be helpful in While Indigenous knowledge may be helpful in
    identifying potential impacts of federal actions, Tribes and other Indigenous entities may want to identifying potential impacts of federal actions, Tribes and other Indigenous entities may want to
    limit information sharing for various reasons. For example, they may want to prevent non-limit information sharing for various reasons. For example, they may want to prevent non-
    Indigenous people from accessing Indigenous sacred sites, or Indigenous religious, cultural, and Indigenous people from accessing Indigenous sacred sites, or Indigenous religious, cultural, and
    societal norms may restrict them from sharingsocietal norms may restrict them from sharing.198.195 Some Tribes and other Indigenous entities have Some Tribes and other Indigenous entities have
    raised raised concerns aboutconcerns about the potential public release of agency the potential public release of agency mapsmaps depicting culturally sensitive depicting culturally sensitive or religious sites.196 or
    religious sites.199
    Some Tribes and other Indigenous entities have asked for statutory guidance to maintain the Some Tribes and other Indigenous entities have asked for statutory guidance to maintain the
    confidentiality of information provided to agencies. For example, some Tribes and other confidentiality of information provided to agencies. For example, some Tribes and other
    Indigenous entities have suggested amending Indigenous entities have suggested amending thethe Freedom of Information Act (FOIA) to exempt Freedom of Information Act (FOIA) to exempt
    culturally sensitive information shared with agencies during consultationculturally sensitive information shared with agencies during consultation.200.197 Without an Without an
    exemption, exemption, FOIA (FOIA (5 U.S.C. §5525 U.S.C. §552)) provides the public a right to access federal agency provides the public a right to access federal agency
    information.201

    193 U.S. Congress, House Committee on Appropriations, Department of the Interior, Environment, and Related
    Agencies Appropriations Bill, 2023    , report to accompany H.R. 8262, 117th Cong., 2nd sess., July 1, 2022, H.Rept. 117-
    400 (Washington: GPO, 2022), p. 10.
    194 NHPA’s regulations define consultation as “the process of seeking, discussing, and considering the views of other
    participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process”
    (36 C.F.R. §800.16(f)).
    195 See, e.g., H.R. 2689 in the 115th Cong., H.R. 2532 and S. 4331 in the 116th Cong., and H.R. 9439 and H.R. 3587 in
    the 117th Cong.
    196 S. 5186 in the 117th Cong.
    197 See, e.g., DOI, “Infrastructure Report,” pp. 44, 58. See also Statement of Suzan Shown Harjo, President, Morning
    Star Institute, U.S. Congress, Senate Committee on Indian Affairs, Native American Sacred Places, 108th Cong., 1st
    sess., 2003, S.Hrg. 108-197 (Washington: GPO, 2003), pp. 8, 20, 54-55.
    198 UCLA School of Law, Native Nations Law & Policy Center, “The Need for Confidentiality Within Tribal Cultural
    Resource Protection,” December 2020, p. 6, at https://law.ucla.edu/sites/default/files/PDFs/Native_Nations/
    239747_UCLA_Law_publications_Confidentiality_R2_042021.pdf (hereinafter UCLA, “Confidentiality”).
    199 White House, “Best Practices Guide,” p. 12.
    200 Ibid.
    201 For more information about the Freedom of Information Act, see CRS In Focus IF11450, The Freedom of
    Information Act (FOIA): An Introduction    , by Benjamin M. Barczewski.
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    Federal-Tribal Consultation: Background and Issues for Congress

    At times, federal officials have expressed concern about their ability to consider tribal and other
    Indigenous entity interests while maintaining confidentiality. For example, it may be difficult to
    protect a site on federal lands that may be impacted by a federal action while maintaining the
    confidentiality of information shared about the site.202 Sacred sites can be hard to define and
    protect because they often lack clearly defined boundaries or a physical marker. Information
    shared by Tribes and other Indigenous entities is, therefore, often essential for the agency to
    identify areas for protection.203 Agencies may also be statutorily required to publicly share
    information proactively or in response to FOIA requests.204
    Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal
    input in federal decisionmaking. Congress has considered and enacted legislation to address tribal
    and other Indigenous entity interests in maintaining confidentiality in some cases. ARPA, NHPA,
    and NAGPRA all have statutory or regulatory confidentiality provisions and give agencies
    discretion in implementing these provisions.205 In addition, the STOP Act creates a FOIA
    exemption for any information designated by a Tribe or an NHO as “sensitive or private
    according to Native American custom, law, culture, or religion.”206 Similarly, the 2008 farm bill
    (P.L. 110-234, 25 U.S.C. §3053) authorizes the Forest Service to withhold information from the
    public relating to reburials, sites, human remains, or resources of traditional or cultural
    importance, including information provided in the course of research. In addition, Members have
    introduced legislation that would exempt information shared by Tribes or other Indigenous
    entities from FOIA.207 Other bills have included provisions requiring agencies to protect
    Indigenous knowledge if requested.208
    Beyond the statutory status quo, Congress may also evaluate whether it would be appropriate to
    codify existing agency practices or expand current statutory authorities to other agencies. For
    example, the Forest Service authority, including best practices, could be expanded to other land
    management agencies. In addition, the FCC maintains a system for confidentially managing
    sensitive site information and for considering that information in facility-siting proposals.209
    Administrative Capacity
    Limited agency, tribal, and other Indigenous entity capacity are ongoing issues affecting federal-
    tribal consultation. Consultation may be inaccessible to some Tribes and other Indigenous entities

    202 Statement of William Bettenberg, Director, Office of Policy Analysis, DOI, U.S. Congress, Senate Committee on
    Indian Affairs, Native American Sacred Places, 108th Cong., 1st sess., 2003, S.Hrg. 108-197 (Washington: GPO, 2003),
    pp. 3-4.
    203 Ibid.
    204 5 U.S.C. §552(a) (proactive disclosure requirement), 5 U.S.C. §552(b) (requirements to disclosure records subject to
    a request).
    205 See ARPA (16 U.S.C. §§470hh) and NHPA (54 U.S.C. §307103). NAGPRA has confidentiality provisions in its
    implementing regulations (43 C.F.R. Part 10.9). For a discussion of these laws and regulations, see UCLA,
    “Confidentiality,” p. 9. Some agencies have committed to treating information received during federal-tribal
    consultation as confidential if disclosure would negatively impact cultural or other sensitive resources. See., e.g., DOI,
    “ANC Policy,” p. 2.
    206 25 U.S.C. §3077.
    207 See, e.g., RESPECT Act (H.R. 3587), §502, and the Safeguard Objects of Tribal Patrimony Act ( S. 1471), §9, from
    the 117th Cong.
    208 See H.R. 8108 and S. 4421 in the 117th Cong. and H.R. 6148 in the 118th Cong.
    209 Interagency Working Group, “Mining Recommendations,” p. 8.
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    Federal-Tribal Consultation: Background and Issues for Congress

    due to limited personnel and expertise.210 Some Tribes, especially small or remote Tribes, may
    have limited staff resources, which might hinder their ability to assess potential tribal impacts and
    travel to consultation sessions.211 In addition, Tribes and other Indigenous entities may lack the
    technical expertise to effectively consult on some federal actions. For example, they may not be
    able to fully evaluate technical plans and environmental studies without additional assistance.212
    The increasing volume of consultations also affects tribal capacity, leading some Tribes to declare
    “consultation fatigue.”213 According to NCAI, a Tribe or other Indigenous entity’s ability to
    consult diminishes when large numbers of consultation sessions are scheduled in a short time
    span or when consultation sessions on different topics overlap.214 Some Tribes have asked for a
    centralized federal-tribal consultation calendar to improve scheduling efficiencies.215 In addition,
    NCAI asked OMB to centralize federal policies on federal-tribal consultation to increase tribal
    understanding of different federal requirements.216
    At the same time, agencies may also have limited personnel, time, and expertise to conduct
    federal-tribal consultation. Agencies have reported demanding workloads for consultations
    because of large numbers of Tribes, high volumes of consultations, or lengthy consultations.217 In
    addition, some Tribes and other Indigenous entities have claimed that many agency officials lack
    the necessary expertise in tribal and other Indigenous entities’ culture, history, and legal principles
    to conduct meaningful consultation.218 These advocates stress that meaningful consultation is
    possible only if federal agencies understand the “sources, scope, and significance” of tribal rights
    and knowledge.219 Therefore, these groups have called for more federal trainings.220
    Congress may consider options to expand tribal, other Indigenous entity, and agency capacity for
    federal-tribal consultations and the advantages and disadvantages associated with these options.
    For example, Congress could require agencies to hold in-person consultation sessions on tribal
    lands and geographical regions accessible to Tribes and other Indigenous entities, or in
    conjunction with other events they might attend, so as to increase opportunities for participation
    in consultation.221 However, scheduling many in-person consultations in different locations may
    increase the burden on federal agencies, Tribes, and other Indigenous entities. Congress may also

    210 See GAO, “Tribal Consultation: Infrastructure,” p. 24. See also Letter from Fawn Sharp, President, NCAI, to
    Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to congressional clients from the authors on request.
    211 GAO, “Tribal Consultation: Infrastructure,” pp. 24-25.
    212 Interagency Working Group, “Mining Recommendations,” p. 74.
    213 Statement of NCAI, H.R. 5608 hearing, p. 85.
    214 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to
    congressional clients from the authors on request.
    215 White House, “Best Practices Guide,” p. 11. DOI has committed to establishing this centralized database, but it has
    not been established to date (DOI, “A Detailed Plan for Improving Interior’s Implementation of E.O. 13175,” at
    https://www.doi.gov/sites/doi.gov/files/detailed-plan-for-improving-interiors-implementation-of-e.o.-13175-omb-
    submission.pdf).
    216 Letter from Fawn Sharp, President, NCAI, to Shalanda Young, President, OMB, April 9, 2021, p. 5. Available to
    congressional clients from the authors on request.
    217 GAO, “Tribal Consultation: Infrastructure,” p. 30.
    218 Ibid., pp. 26-27.
    219 See Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, “2019
    RESPECT Act hearing,” p. 55.
    220 Ibid.
    221 DOI, “Framing Paper,” p. 2.
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    Federal-Tribal Consultation: Background and Issues for Congress

    continue to consider whether agency training regarding expertise in tribal culture, history, and
    legal principles would improve agency capacity.222
    In addition, Congress may continue to consider tribal suggestions to centralize consultation-
    related information.223 For example, a centralized calendar may reduce the federal administrative
    burden of conducting tribal consultations, as agencies may be able to better coordinate and
    leverage each other’s federal-tribal consultation sessions. Centralizing agency policies on tribal
    and other Indigenous entity consultation may also help the parties better understand consultation
    requirements and potentially increase transparency. On the other hand, establishing and
    maintaining centralized databases of information would likely incur costs. Congress may also be
    interested in what metric or metrics would be needed to analyze whether a centralized calendar
    reduces the federal and tribal burdens on consultation.
    Federal Funding
    Congress has, at times, provided annual appropriations for agencies to help Tribes participate in
    consultations. For example, Congress typically appropriates annual funding to the National Park
    Service (NPS) for tribal historic preservation officers (THPOs).224 The funding may be used to
    help pay expenses relating to federal-tribal consultation on projects on or affecting resources on
    tribal lands. The amount granted to each THPO is determined by formula developed in
    consultation with THPOs. Tribes have largely viewed appropriations as insufficient because they
    have not kept up with the increase in approved THPOs. For example, in 1996, 12 Tribes were
    approved by the Secretary of the Interior and NPS to assume the responsibilities of a THPO on
    tribal lands, compared to over 200 in 2022.225
    Congress has also appropriated supplemental funding that has been used to support federal-tribal
    consultation. For example, the Inflation Reduction Act of 2022 (P.L. 117-169) appropriated $350
    million to the Permitting Council’s Environmental Review Improvement Fund (ERIF). In 2023,
    the Permitting Council set aside $5 million from the fund to support tribal engagement in the
    environmental review and authorization process for FAST-41 covered projects.226
    Congress may also evaluate whether and to what degree Tribes and other Indigenous entities
    should be compensated for participating in consultations. A 2019 GAO report found that 10 of 21
    agencies’ federal-tribal consultation policies specify the extent to which the agencies may
    compensate Tribes and other Indigenous entities for participating in federal-tribal consultation.227
    Based on the report, it is unclear whether the agencies lack authority or choose not to use their
    authority. In addition, Congress may wish to review GAO’s recommendations about whether

    222 See, e.g., RESPECT Act (H.R. 3587).
    223 See H.R. 9439, §12 (“the current lack of centralization in Federal agencies’ Tribal consultations- (A) results in a
    number of challenges, including scheduling conflicts and unsustainable drains on resources of Indian Tribes and the
    time of Tribal leaders”).
    224 A tribal historic preservation officer is appointed by the Tribe for purposes of NHPA §106 compliance on tribal
    lands (36 C.F.R. §800.16).
    225 See, e.g., Statement of Valerie J. Grussing, PhD, Executive Director, the National Association of Tribal Historic
    Preservation Officers, U.S. Congress, House Committee on Appropriations, Subcommittee on Interior, Environment,
    and Related Agencies, PART 7 Testimony of Interested Individuals and Organizations, 116th Cong., 2nd sess., February
    6, 2020 (Washington: GPO, 2021). See also National Park Service, “Tribal Historic Preservation Office (THPO)
    Grants,” at https://www.nps.gov/subjects/historicpreservationfund/thpo-grants.htm.
    226 Permitting Dashboard, “ERIF Tribal Assistance Program,” at https://www.permits.performance.gov/fpisc-
    content/erif-tribal-assistance-program.
    227 GAO, “Tribal Consultation: Infrastructure,” p. 48.
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    Federal-Tribal Consultation: Background and Issues for Congress

    some agencies’ methods for financing federal-tribal consultation activities may be applicable at
    other agencies, such as
    • collecting fees from nonfederal infrastructure project applicants to cover agency
    costs of conducting federal-tribal consultation,
    • distributing debit cards to tribal officials to cover travel expenses related to
    federal consultation, and
    • contracting with third parties that reimburse Tribes and other Indigenous entities
    for their expertise.228

    228 Ibid., pp. 49-50.
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    Federal-Tribal Consultation: Background and Issues for Congress

    Appendix. Select Legislation That Proposed
    Establishing Federal-Tribal Consultation Standards
    Congressional Research Service

    34

    Table A-1. Select Legislation That Proposed Establishing Federal-Tribal Consultation Standards
    Bills Introduced in the 117th and 118th Congress
    Tribal
    Consent or
    Most Recent
    Consensus
    Hearing (If
    Legislation
    Congress
    Brief Description
    Requirement
    Legislative Consideration Milestones
    Applicable)
    Rural Economic-
    118th
    Proposed setting federal-
    No
    Referred to the House Committees on Agriculture,
    N/A
    development
    tribal consultation
    Transportation and Infrastructure, and Financial Services on
    Assistance and
    requirements for the
    August 1, 2023
    Consultation to
    budget formulation process
    Help Our Tribes
    at the U.S. Department of
    Referred to the House Transportation and Infrastructure
    Act (REACH Our
    Agriculture.
    Committee’s Subcommittee on Economic Development,
    Tribes Act),
    Public Buildings, and Emergency Management on August 2,
    H.R. 5113/S. 3270
    2023
    Referred to the Senate Committee on Agriculture, Nutrition,
    and Forestry on November 9, 2023
    Advancing Tribal
    118th
    Proposed requiring the
    No
    Referred to the House Committees on Natural Resources
    House Natural
    Parity on Public
    Secretaries of the Interior
    and Agriculture on November 1, 2023
    Resources
    Land Act,
    and Agriculture to consider
    Referred to the Senate Committee on Indian Affairs on
    Subcommittee on
    H.R. 6148/S. 3186
    “the rights and interests of
    November 1, 2023
    National Parks,
    any interested Indian
    Forests, and Public
    Tribe” prior to disposing of
    Lands
    federal lands.
    September 14,
    2022
    Honoring Promises
    117th
    Proposed directing the
    Yes
    Referred to the Senate Committee on Indian Affairs on
    N/A
    to Native Nations
    White House Office of
    December 5, 2022
    Act,
    Management and Budget to
    H.R. 9439/S. 5186
    develop a tribal
    Referred to the House Committees on Natural Resources,
    consultation policy.
    the Budget, the Judiciary, Energy and Commerce, Education
    and Labor, Financial Services, Veterans’ Affairs,
    Transportation and Infrastructure, and Agriculture on
    December 6, 2022
    CRS-35

    Tribal
    Consent or
    Most Recent
    Consensus
    Hearing (If
    Legislation
    Congress
    Brief Description
    Requirement
    Legislative Consideration Milestones
    Applicable)
    Requirements,
    117th
    Proposed requiring federal-
    Yes
    Referred to the House Committees on the Judiciary and
    House Natural
    Expectations, and
    tribal consultation before
    Natural Resources on May 28, 2021
    Resources
    Standard
    an agency conducts “any
    Committee
    Procedures for
    proposed Federal activity
    Referred to the House Natural Resources Subcommittee for
    May 19, 2021
    Effective
    or finaliz[es] any Federal
    Indigenous Peoples of the United States on June 28, 2021
    Consultation with
    regulatory action that may
    Referred to the House Judiciary’s Subcommittee on Antitrust,
    Tribes Act
    have Tribal impacts.”
    Commercial, and Administrative Law on November 1, 2022
    (RESPECT) Act,
    H.R. 3587
    Assuring Regular
    117th
    Proposed establishing
    No
    Referred to the House Transportation and Infrastructure’s
    N/A
    Consultation to
    requirements for tribal
    Subcommittee on Economic Development, Public Buildings,
    Have Indigenous
    consultation prior to the
    and Emergency on July 12, 2021
    Voices Effectively
    sale or transfer of certain
    Solicited Act,
    federal civilian real
    Referred to the Senate Committee on Environment and
    H.R. 4386/S. 981
    property.
    Public Works on March 25, 2021
    Source: CRS. Legislation from the 117th and 118th Congress was selected using terms such as “tribe,” “tribal,” and “consultation.”
    Note: N/A = not applicable. “Tribal consent or consensus requirement” indicates that the bill required the federal agency or agencies to obtain tribal consent or
    consensus as part of tribal consultation.

    CRS-36
    Federal-Tribal Consultation: Background and Issues for Congress



    Author Information

    Mariel J. Murray, Coordinator
    Eva Lipiec
    Specialist in Natural Resources Policy
    Specialist in Natural Resource Policy


    Nicole T. Carter
    Mainon A. Schwartz
    Specialist in Natural Resources Policy
    Legislative Attorney




    Disclaimer
    This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
    shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
    under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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    Congressional Research Service
    R48093 · VERSION 1 · NEW
    37
    information.198

    At times, federal officials have expressed concern about their ability to consider tribal and other Indigenous entity interests while maintaining confidentiality. For example, it may be difficult to protect a site on federal lands that may be impacted by a federal action while maintaining the confidentiality of information shared about the site.199 Sacred sites can be hard to define and protect because they often lack clearly defined boundaries or a physical marker. Information shared by Tribes and other Indigenous entities is, therefore, often essential for the agency to identify areas for protection. Agencies may also be statutorily required to publicly share information proactively or in response to FOIA requests.200

    Congress may choose to constrict, maintain, or expand statutes governing consideration of tribal input in federal decisionmaking. Congress has considered and enacted legislation to address tribal and other Indigenous entity interests in maintaining confidentiality in some cases. ARPA, NHPA, and NAGPRA all have statutory or regulatory confidentiality provisions and give agencies discretion in implementing these provisions.201 In addition, the STOP Act creates a FOIA exemption for any information designated by a Tribe or an NHO as "sensitive or private according to Native American custom, law, culture, or religion."202 Similarly, the 2008 farm bill (P.L. 110-234, 25 U.S.C. §3053) authorizes the Forest Service to withhold information from the public relating to reburials, sites, human remains, or resources of traditional or cultural importance, including information provided in the course of research.

    Beyond the statutory status quo, Congress may also evaluate whether it would be appropriate to codify existing agency practices or expand current statutory authorities to other agencies. For example, the Forest Service authority, including best practices, could be expanded to other land management agencies. In addition, the FCC maintains a system for confidentially managing sensitive site information and for considering that information in facility-siting proposals.203 In the 119th Congress, several bills have included provisions requiring DOI and/or USDA to protect Indigenous knowledge, for example from disclosure.204

    Federal and Tribal Administrative Capacity

    Limited agency, tribal, and other Indigenous entity capacity are ongoing issues affecting federal-tribal consultation. Consultation may be inaccessible to some Tribes and other Indigenous entities due to limited personnel and expertise.205 Some Tribes, especially small or remote Tribes, may have limited staff resources, which might hinder their ability to assess potential tribal impacts and travel to consultation sessions.206 In addition, Tribes and other Indigenous entities may lack the technical expertise to effectively consult on some federal actions. For example, they may not be able to fully evaluate technical plans and environmental studies without additional assistance.207 The increasing volume of consultations also affects tribal capacity, leading some Tribes to declare "consultation fatigue."208 Some Tribes have asked for a centralized federal-tribal consultation calendar to improve scheduling efficiencies.209

    At the same time, some agencies have also reported limited personnel and time to conduct federal-tribal consultation and collaborate with Tribes.210 Agencies have reported demanding workloads for consultations because of large numbers of Tribes, high volumes of consultations, or lengthy consultations.211 In 2026, GAO recommended that select DOI and USDA agencies assess staff capacity related to working with Tribes.212

    Agencies and Tribes have also raised the issue of limited agency expertise in tribal relations.213 For example, some Tribes and other Indigenous entities have claimed that many agency officials lack the necessary expertise in tribal and other Indigenous entities' culture, history, and legal principles to conduct meaningful consultation.214 These advocates stress that meaningful consultation is possible only if federal agencies understand the "sources, scope, and significance" of tribal rights and knowledge.215 Therefore, these groups have called for more federal trainings.216

    Congress may consider options to expand tribal, other Indigenous entity, and agency capacity for federal-tribal consultations and the advantages and disadvantages associated with these options. For example, Congress could require agencies to hold in-person consultation sessions on tribal lands and geographical regions accessible to Tribes and other Indigenous entities, or in conjunction with other events they might attend, so as to increase opportunities for participation in consultation. However, scheduling many in-person consultations in different locations may increase the burden on federal agencies, Tribes, and other Indigenous entities. Congress may also continue to consider whether agency training regarding expertise in tribal culture, history, and legal principles would improve agency capacity.217

    In addition, Congress may continue to consider tribal suggestions to centralize consultation-related information.218 For example, a centralized calendar may reduce the federal administrative burden of conducting tribal consultations, as agencies may be able to better coordinate and leverage each other's federal-tribal consultation sessions. Centralizing agency policies on tribal and other Indigenous entity consultation may also help the parties better understand consultation requirements and potentially increase transparency. On the other hand, establishing and maintaining centralized databases of information would likely incur costs. Congress may also be interested in what metric or metrics would be needed to analyze whether a centralized calendar reduces the federal and tribal burdens on consultation.

    Federal Funding

    Whether, and how much, federal funding should be provided for federal-tribal consultation is another issue.219 Congress has, at times, provided annual appropriations for agencies to help Tribes participate in consultations. For example, Congress typically appropriates annual funding to the National Park Service (NPS) for tribal historic preservation officers (THPOs).220 The funding may be used to help pay expenses relating to federal-tribal consultation on projects on or affecting resources on tribal lands. The amount granted to each THPO is determined by formula developed in consultation with THPOs. Tribes have largely viewed appropriations as insufficient because they have not kept up with the increase in approved THPOs. For example, in 1996, 12 Tribes were approved by the Secretary of the Interior and NPS to assume the responsibilities of a THPO on tribal lands, compared to more than 230 in 2026.221

    Congress has also appropriated supplemental funding that has been used to support federal-tribal consultation. For example, the Inflation Reduction Act of 2022 (P.L. 117-169) appropriated $350 million to the Permitting Council's Environmental Review Improvement Fund (ERIF). The Permitting Council set aside $5 million from the fund in 2023, and an additional $10 million in 2024, to support tribal engagement in the environmental review and authorization process for FAST-41 covered projects.222

    Congress may also evaluate whether and to what degree Tribes and other Indigenous entities should be compensated for participating in consultations. A 2019 GAO report found that 10 of 21 agencies' federal-tribal consultation policies specify the extent to which the agencies may compensate Tribes and other Indigenous entities for participating in federal-tribal consultation.223 Based on the report, it is unclear whether the agencies lack authority or choose not to use their authority. In addition, Congress may wish to review GAO's recommendations about whether some agencies' methods for financing federal-tribal consultation activities may be applicable at other agencies, such as

    • collecting fees from nonfederal infrastructure project applicants to cover agency costs of conducting federal-tribal consultation,
    • distributing debit cards to tribal officials to cover travel expenses related to federal consultation, and
    • contracting with third parties that reimburse Tribes and other Indigenous entities for their expertise.224

    Footnotes

    1. A federally recognized Tribe ("Tribe") is an American Indian or Alaska Native entity that is recognized as having a government-to-government relationship with the United States. See the "Terminology" section for more information about Tribes and other Indigenous entities. 2.

    Prior to about 1871, the governments of the 13 original colonies and, subsequently, the U.S. government negotiated tribal treaties. See National Archives, "Native American Heritage: American Indian Treaties," https://www.archives.gov/research/native-americans/treaties.

    3.

    For example, the Treaty Between the United States of America and the Nez Percé Indians, U.S.-Nez Percé Tribe, Article III, June 11, 1855, 12 Stat. 957, 958, gave the Tribe "the right of taking fish at all usual and accustomed places."

    4.

    For example, the Treaty with the Kaskaskias, etc., U.S.-United Tribes of Kaskaskia & Peoria, Piankeshaw & Wea Indians, art. 7, May 30, 1854, 10 Stat. 1082, 1084, required the President to consult with the Tribes about annual payments. This report will not address specific treaty provisions regarding consultation.

    5.

    Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942). For a detailed discussion of the connection between the federal trust responsibility and consultation, see Colette Routel and Jeffrey Holth, "Toward Genuine Tribal Consultation in the 21st Century," University of Michigan Journal of Law Reform, vol. 46, no. 417 (2013), pp. 434, 454-456, https://repository.law.umich.edu/mjlr/vol46/iss2/2/ (hereinafter Routel & Holth, "Genuine Consultation").

    6. See Statement of Rep. Nick J. Rahall, "Introduction of the Consultation and Coordination with Indian Tribal Governments Act," House debate, Congressional Record, daily edition, vol. 154, part 43 (March 13, 2008), pp. E383-E384. See also Statement of National Congress of American Indians (NCAI), legislative hearing on H.R. 3490, H.R. 3522, H.R. 5608, H.R. 5680, and S. 2457, 110th Cong., 2nd sess., April 9, 2008, H.Hrg. 41-818 (GPO, 2008), p. 83 (hereinafter H.R. 5608 hearing). 7.

    For purposes of this report, federal action includes federal decisions, policies, activities, and funding in addition to other actions of federal agencies.

    8.

    See, e.g., the National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. §§300101 et seq.).

    9.

    See, e.g., Executive Order 13084, "Consultation and Coordination with Indian Tribal Governments," May 14, 1998, https://www.justice.gov/archive/otj/Presidential_Statements/presdoc3.htm (hereinafter EO 13084).

    10.

    Monte Mills and Martin Nie, "Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal Co-management on Federal Public Lands," Public Land & Resources Law Review, vol. 44 (2021), p. 1, https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1741&context=plrlr (hereinafter Mills & Nie, "Bridges").

    11.

    For more information on co-management, see CRS Report R47563, Tribal Co-management of Federal Lands: Overview and Selected Issues for Congress, by Mariel J. Murray.

    12.

    Alaska Native Claims Settlement Act (ANCSA) defines the term "Native" and uses that terminology throughout (43 U.S.C. §1602).

    13.

    43 U.S.C. §§1601 et seq.

    14.

    Department of the Interior (DOI), Bureau of Indian Affairs (BIA), "Alaska Region," https://www.bia.gov/regional-office/alaska-region.

    15.

    This report uses the NHPA's definition of "Native Hawaiian" (54 U.S.C. §300313).

    16.

    This report uses NHPA's definition of "Native Hawaiian Organization" (54 U.S.C. §300314).

    17.

    The term Indigenous is not consistently defined in the international or domestic legal context. Some entities, such as the United Nations, have developed general guidelines for identifying Indigenous groups based on a variety of factors (see United Nations, "Who Are Indigenous Peoples?" fact sheet, https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf).

    18.

    Cohen's Handbook of Federal Indian Law (Washington, DC: LexisNexis, 2012), "Chapter 3: Indian Tribes, Indians, and Indian Country, §3.02."

    19.

    Often, statutory or regulatory text specifically define what constitutes tribal land or Indian land for its purposes. For information on tribal land types, see CRS Report R48360, Tribal Lands: Overview and Issues for Congress, by Mariel J. Murray.

    20.

    BIA, "What Is Tribal Consultation?" https://www.bia.gov/service/tribal-consultations/what-tribal-consultation.

    21.

    Routel & Holth, "Genuine Consultation," pp. 454-456.

    22.

    Routel & Holth, "Genuine Consultation," pp. 454-456.

    23.

    See, e.g., DOI, "Departmental Manual: Procedures for Consultation with Indian Tribes," November 30, 2022, p. 3, https://www.bia.gov/sites/default/files/dup/tcinfo/512-dm-5-final_508.pdf.

    24.

    Judith Stein, "Decisionmaking Models," Massachusetts Institute for Technology, Human Resources, https://hr.mit.edu/learning-topics/teams/articles/models.

    25.

    See, e.g., BIA, "Compilation of Comments Received on Updates to Consultation Policy 512 DM 4 and 5," p. 5, November 2022, http://www.bia.gov/sites/default/files/dup/tcinfo/comment-summary-consultation-policy-512-dm-4-and-5-final_508_0.pdf ("Several Tribes agreed with the intent of the consensus-seeking model.") (hereinafter BIA, "DM Comments"). See also DOI, "Departmental Manual: Department of the Interior Policy on Consultation with Indian Tribes," November 30, 2022, p. 3, https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf (hereinafter DOI, "Consultation Policy DM").

    26.

    25 U.S.C. §324.

    27.

    See, e.g., BIA, "DM Comments," p. 6. ("Tribes commented that rather than adopt the 'consensus-seeking model,' the Biden Administration should adopt a tribal consultation policy based on the FPIC standard.")

    28.

    United Nations General Assembly, "United Nations Declaration on the Rights of Indigenous Peoples: Resolution/Adopted by the General Assembly," A/RES/61/295, 2 October 2007, Articles 19 and 32, https://www.refworld.org/legal/resolution/unga/2007/en/49353 (hereinafter "UNDRIP").

    29.

    United Nations General Assembly, Human Rights Council, "Free, Prior and Informed Consent: A Human Rights-Based Approach—Study of the Expert Mechanism on the Rights of Indigenous Peoples," August 10, 2018, pp. 6-9, https://www.ohchr.org/en/documents/thematic-reports/free-prior-and-informed-consent-human-rights-based-approach-study-expert.

    30.

    Native American Rights Fund, University of Colorado Boulder, and University of California, Los Angeles School of Law, "Tribal Implementation Toolkit," pp. 28-32, https://un-declaration.narf.org/wp-content/uploads/Tribal-Implementation-Toolkit-Digital-Edition.pdf. Some Tribes have incorporated the free, prior, and informed consent (FPIC) framework into tribal law, setting forth tribal consultation expectations for federal agencies.

    31.

    UNDRIP, Article 19.

    32.

    UNDRIP, Article 32.

    33.

    See U.S. Department of State, "Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples," January 12, 2011, https://2009-2017.state.gov/s/srgia/154553.htm (The U.S. State Department has interpreted FPIC to signify "a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken."). See also United States Mission to the United Nations, "Remarks on Item 3: Discussion on the theme 'Implementing the United Nations Declaration on the Rights of Indigenous Peoples within United Nations Member States and the United Nations system, including identifying good practices and addressing challenges,'" April 21, 2025, https://usun.usmission.gov/remarks-on-item-3-discussion-on-the-theme-implementing-the-united-nations-declaration-on-the-rights-of-indigenous-peoples-within-united-nations-memb.

    34.

    25 U.S.C. §5302(b).

    35.

    See, e.g., NHPA, National Environmental Policy Act of 1970 (NEPA; 42 U.S.C. §§4321 et seq.), and Archaeological Resources Protection Act of 1979 (ARPA; 16 U.S.C. §§470aa-470mm).

    36.

    For a more comprehensive list of federal-tribal consultation requirements in federal statutes and regulations, see Derek C. Haskew, "Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?" American Indian Law Review, vol. 24, no. 1 (1999), pp. 21-23, https://digitalcommons.law.ou.edu/ailr/vol24/iss1/14/.

    37.

    42 U.S.C. §1996.

    38.

    42 U.S.C. §1996 note.

    39.

    16 U.S.C. §470ii. The Secretary of Defense is using a secondary Secretary of War designation under Executive Order 14347 of September 5, 2025.

    40.

    54 U.S.C. §306108. The Advisory Council on Historic Preservation (ACHP) oversees the NHPA §106 review process. Created by NHPA, the ACHP is an independent agency consisting of federal, state, and tribal government members, as well as experts in historic preservation and members of the public. For more information about NHPA's federal-tribal consultation requirements, see CRS Report R47543, Historic Properties and Federal Responsibilities: An Introduction to Section 106 Reviews, by Mark K. DeSantis.

    41.

    54 U.S.C. §302706(b). In its NHPA implementing regulations, the ACHP defined consultation as "the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement" with them through this process (36 C.F.R. §800.16).

    42.

    See generally 25 U.S.C. §§3001 et seq. Native American is defined as a "Tribe, people, or culture that is indigenous to the United States" (25 U.S.C. §3001(9)). For more information on NAGPRA requirements, see CRS In Focus IF12523, Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions, by Mark K. DeSantis and Nik Taylor.

    43.

    25 U.S.C. §3071.

    44.

    25 U.S.C. §3073.

    45.

    25 U.S.C. §3076.

    46.

    For example, in a 1970 message to Congress, President Nixon expanded on the idea of the United States' government-to-government relationship with Tribes, expressing the view that they should participate in policy development "to the greatest possible degree." President Nixon's Special Message on Indian Affairs, delivered to Congress in 1970, Special Message to the Congress on Indian Affairs, Public Papers of the Presidents of the United States: Richard M. Nixon, p. 564 (July 8, 1970).

    47.

    EO 13084.

    48.

    Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments," 65 Federal Register 67249 (2000) (hereinafter EO 13175). Congress has stated that EO 13175's tribal definition includes ANCs (P.L. 108-199, as amended, provided that "[t]he Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Tribes under Executive Order No. 13175."

    49.

    EO 13175.

    50.

    EO 13175.

    51.

    U.S. President (G. W. Bush), "Memorandum on Government-to-Government Relationship With Tribal Governments," Public Papers of the Presidents of the United States: Administration of George W. Bush, 2004 (GPO, 2004), p. 2106, https://www.govinfo.gov/content/pkg/WCPD-2004-09-27/pdf/WCPD-2004-09-27-Pg2106.pdf (hereinafter 2004 PM).

    52.

    U.S. President (Obama), "Memorandum of November 5, 2009: Tribal Consultation," 74 Federal Register 57879, November 5, 2009 (hereinafter 2009 PM).

    53.

    U.S. President (Biden), "Tribal Consultation and Strengthening Nation-to-Nation Relationships," 86 Federal Register 7491, January 29, 2021 (hereinafter 2021 PM).

    54.

    U.S. President (Biden), "Memorandum of November 30, 2022: Uniform Standards for Tribal Consultation," 87 Federal Register 74479, December 5, 2022 (hereinafter 2022 PM).

    55.

    For more information about executive orders, see CRS Report R46738, Executive Orders: An Introduction, coordinated by Abigail A. Graber.

    56.

    EO 13084 §7, EO 13175 §10, 2004 PM, 2009 PM, 2021 PM §3, and 2022 PM §11.

    57.

    EO 13084 §4; EO 13175 §§3, 5, & 6; 2004 PM; 2009 PM; 2021 PM §3; and 2022 PM §§2, 5, 7, & 11.

    58. ACHP et al., "Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights," November 15, 2021, https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf (hereinafter "Interagency Treaty MOU"). 59.

    White House Council on Native American Affairs, "Best Practices for Identifying and Protecting Tribal Treaty Rights, Reserved Rights, and Other Similar Rights in Federal Regulatory Actions and Federal Decision-Making," November 30, 2022, https://www.bia.gov/sites/default/files/media_document/best_practices_guide.pdf (hereinafter White House, "Best Practices Guide").

    60. There is no single definition of Indigenous knowledge, and different Indigenous peoples and federal agencies may define the term differently. For more information, see CRS Report R48317, Indigenous Knowledge and Data: Overview and Issues for Congress, coordinated by Mariel J. Murray. White House Council on Environmental Quality (CEQ) and Office of Science and Technology Policy (OSTP), "Indigenous Traditional Ecological Knowledge and Federal Decision Making," November 15, 2021, https://bidenwhitehouse.archives.gov/wp-content/uploads/2021/11/111521-OSTP-CEQ-ITEK-Memo.pdf. See also CEQ and OSTP, "Guidance for Federal Departments and Agencies on Indigenous Knowledge," November 30, 2022, https://www.bia.gov/sites/default/files/dup/inline-files/ik_guidance_implementation_memo.pdf (hereinafter CEQ and OSTP, "2022 IK Guidance"). 61.

    See generally CEQ and OSTP, "2022 IK Guidance."

    62. United States Government Publishing Office, "Compilation of Presidential Documents," https://www.govinfo.gov/app/collection/cpd/. CRS used the following search terms: (tribe OR tribal) NEAR/25 (consult OR consultation); Consultation and Coordination with Indian Tribal Governments; Executive Order 13175; and Uniform Standards for Tribal Consultation. 63.

    Office of Management and Budget, "Memorandum M-25-36, Streamlining the Review of Deregulatory Actions," October 21, 2025, https://www.whitehouse.gov/wp-content/uploads/2025/10/M-25-36-Streamlining-the-Review-of-Deregulatory-Actions.pdf?cb=1761144575.

    64.

    See DOI, "Resources for Tribal Nations," https://www.doi.gov/priorities/tribal-consultation/resources-tribal-nations.

    65.

    The BIA guidelines are discussed and excerpted in Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717-721 (8th Cir. 1979).

    66.

    Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717-718 (8th Cir. 1979).

    67.

    DOI, "Consultation Policy DM." See also DOI, "Procedures for Consultation with Indian Tribes," November 30, 2022, https://www.doi.gov/sites/default/files/elips/documents/512-dm-5_2.pdf (hereinafter DOI, "Consultation Procedures DM"). For example, DOI's Bureau of Land Management (BLM) issued a consultation policy in 2016 (BLM, "BLM Manual 1780 Tribal Relations (P)," December 15, 2016, https://www.blm.gov/sites/blm.gov/files/uploads/MS%201780.pdf).

    68.

    DOI, "Consultation Policy DM," p. 3.

    69.

    BIA, "DM Comments," p. 6.

    70.

    DOI, "Consultation Policy DM," p. 8.

    71.

    DOI, "Consultation Procedures DM."

    72. DOI, "Departmental Manual: Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act Corporations," November 30, 2022, p. 2, https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-6.pdf (hereinafter DOI, "ANC Policy"). 73.

    DOI, "ANC Policy," p. 1.

    74.

    DOI, "Departmental Manual: Department of the Interior Policy on Consultation with the Native Hawaiian Community," November 30, 2022, p. 2, https://www.doi.gov/sites/doi.gov/files/513-dm-1-oes-clean-508.pdf.

    75.

    DOI, "Departmental Manual: Departmental Responsibilities for Consideration and Inclusion of Indigenous Knowledge in Departmental Actions and Scientific Research," December 5, 2023, p. 1, https://www.doi.gov/document-library/departmental-manual/301-dm-7-departmental-responsibilities-consideration-and (hereinafter DOI, "IK DM").

    76.

    DOI, "IK DM," p. 7.

    77.

    DOI, "IK DM," p. 4.

    78.

    See, e.g., U.S. Department of Agriculture (USDA), "Departmental Regulation 1350-001: Tribal Consultation," September 11, 2008, https://www.usda.gov/sites/default/files/documents/DR1350-001.pdf.

    79.

    In its action plan, USDA acknowledged that historically, USDA had conducted consultations with Tribes on an ad hoc basis, except for two agencies: the Natural Resources Conservation Service and the Forest Service. See USDA, "United States Department of Agriculture Action Plan for Tribal Consultation and Collaboration," https://www.usda.gov/sites/default/files/documents/ConsultationPlan.pdf (hereinafter USDA, "Action Plan").

    80.

    USDA, "Action Plan," p.7.

    81. USDA, "Departmental Regulation 1350-002: Tribal Consultation, Coordination, and Collaboration," January 18, 2013), https://www.usda.gov/sites/default/files/documents/USDA_DR_Tribal_Consultation_Coordination_and_Collaboration_OTR_final_1_18.pdf (hereinafter USDA, "2013 Consultation DR"). 82.

    USDA, "2013 Consultation DR."

    83.

    USDA, "United States Department of Agriculture Plan of Action 270 Day Progress Report," https://www.usda.gov/sites/default/files/documents/usda-consultation-plan-action-270-day-report.pdf.

    84.

    USDA, "USDA Tribal Accomplishments 2022," p. 1, https://www.usda.gov/sites/default/files/documents/usda-tribal-accomplishments-2022.pdf (hereinafter USDA, "2022 Tribal Accomplishments").

    85. USDA, "Departmental Regulation 1350-001: Tribal Consultation," April 30, 2024, https://www.usda.gov/sites/default/files/documents/dr-1350-002.pdf. 86.

    USDA, Forest Service, "Strengthening Tribal Consultations and Nation-to-Nation Relationships," February 2023, p. 19, https://www.fs.usda.gov/sites/default/files/fs_media/fs_document/Strengthening-Tribal-Relations.pdf.

    87.

    Memorandum from Assistance Secretary of the Army (Civil Works), Michael L. Connor, "Updated U.S. Army Corps of Engineers Tribal Consultation Policy," December 5, 2023 (hereinafter 2023 "USACE Tribal Consultation Policy"); Memorandum from Lieutenant General Thomas P. Bostick, U.S. Army Commanding, to Commanders, Directors and Chiefs of Separate Offices, U.S. Army Corps of Engineers (USACE), "Tribal Consultation Policy," November 1, 2012. Prior to releasing a draft policy in March 2023, in 2022 USACE had provided for tribal meetings and written recommendations for updating Army Corps civil works policy priorities, including an update of its tribal consultation policies (87 Federal Register 33756).

    88.

    "U.S. Army Corps of Engineers—Civil Works Tribal Consultation Policy" enclosure in 2023 "USACE Tribal Consultation Policy." The new policy notes that a separate consultation policy with Native Hawaiian Communities is under development.

    89.

    The 2023 USACE Tribal Consultation Policy states, "As a matter of Federal law, only Congress has the authority to abrogate or interfere with tribal treaty rights, which has not been delegated to USACE. USACE cannot authorize, approve, or carry out any activities which would result in a violation of a Tribal treaty right." Regarding the protection of natural and cultural resources in addition to referencing NAGPRA and NHPA, the 2023 policy states "USACE recognizes the importance of strict compliance with Native American Graves Protection and Repatriation Act (NAGPRA), the National Historic Preservation Act (NHPA), the National Environmental Policy Act, the Endangered Species Act, and other [statutes] concerning cultural and natural resources."

    90.

    2023 "USACE Tribal Consultation Policy."

    91.

    Section 112(d) of Division AA of P.L. 116-260 states,

    TRIBAL LANDS AND CONSULTATION.—In carrying out water resources development projects, the Secretary shall, to the extent practicable and in accordance with the Tribal Consultation Policy affirmed and formalized by the Secretary on November 1, 2012 (or a successor policy)—(1) promote meaningful involvement with Indian Tribes specifically on any Tribal lands near or adjacent to any water resources development projects, for purposes of identifying lands of ancestral, cultural, or religious importance; (2) consult with Indian Tribes specifically on any Tribal areas near or adjacent to any water resources development projects, for purposes of identifying lands, waters, and other resources critical to the livelihood of the Indian Tribes; and (3) cooperate with Indian Tribes to avoid, or otherwise find alternate solutions with respect to, such areas.

    According to USACE, the concepts included in Section 112(d) will also be included in the development of best practices guides to accompany 2023 USACE Tribal Consultation Policy (USACE communication with CRS, December 4, 2023).

    92.

    Section 8112 of Title LXXXI, Water Resources Development Act of 2022 (WRDA 2022), of Division H of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (P.L. 117-263). For this provision, WRDA 2022 defined "tribal community" as "a community of people who are recognized and defined under Federal law as indigenous people of the United States." Among the duties specified for the liaisons are "improving, expanding, and facilitating government-to-government consultation between Tribal peoples and the Corps of Engineers." Another duty is being responsible for "training and tools to facilitate the ability of Corps of Engineers staff to effectively engage with Tribal peoples." Implementation status on this provision has not been made publicly available. According to USACE, as of December 2023, there were 51 USACE district staff members who are identified as tribal liaisons (USACE communication with CRS, December 4, 2023). At the time, each of the 38 districts had a designated tribal liaison and 13 districts had at least 1 additional tribal liaison to assist with tribal consultation in the USACE Regulatory Division or other USACE mission areas. Also, each of the 8 USACE divisions had a designated tribal liaison, and there was a senior tribal liaison position at USACE headquarters.

    93.

    This includes USACE granting easements on its projects.

    94.

    ACHP, "Improving Tribal Consultation in Infrastructure Projects," p. 13, https://www.achp.gov/sites/default/files/reports/2018-11/ImprovingTribalConsultationinInfrastructureProjectsFinalApril272017_0.pdf.

    95.

    89 Federal Register 9079. As an earlier step toward the proposed changes, the Department of the Army, through publication of a Federal Register notice in June 2022 (87 Federal Register 33756), solicited comment on approaches to modernize Appendix C.

    96.

    RIN 0710-AB46, which was the regulatory identified number assigned to the USACE Appendix C rulemaking, was included in the spring 2025 regulatory agenda and plan, but absent from the 2026 regulatory agenda and plan; for more information, see the history of the agenda at the website for the Office of Information and Regulatory Affairs, https://www.reginfo.gov/public/do/eAgendaMain.

    97.

    National Oceanic and Atmospheric Administration (NOAA), "Our Mission and Vision," https://www.noaa.gov/our-mission-and-vision.

    98.

    Department of Commerce (DOC), Office of Privacy and Open Government, "DAO 218-8: Consultation and Coordination with Indian Tribal Governments," effective date April 26, 2012, https://www.commerce.gov/node/4822 (hereinafter DAO 218-8).

    99.

    Department of Commerce, "Tribal Consultation and Coordination Policy for the U.S. Department of Commerce," 78 Federal Register 33331, June 4, 2013 (hereinafter DOC, "Tribal Consultation Policy"). Under the policy, DOC aims to consult with Alaska Native Corporations "in a manner as close as possible" to consultations with Tribes in Alaska (Section 8).

    100.

    DOC, "Tribal Consultation Policy," Section 1.

    101.

    DOC, "Tribal Consultation Policy," Section 7.

    102.

    DAO 218-8, §5.

    103.

    Interagency Treaty MOU.

    104. NOAA, "NAO 218-8A: Policy on Government-to-Government Consultation with Federally Recognized Indian Tribal Governments," effective June 27, 2023, https://www.noaa.gov/organization/administration/nao-218-8A-policy-on-G2G-consultation-with-federally-Recognized-Tribal-Governments (hereinafter NAO 218-8A); NOAA, "NOAA Procedures for Government-to-Government Consultation with Federally Recognized Indian Tribal Governments," 2023, https://www.noaa.gov/sites/default/files/2023-07/NOAA_Tribal_Consultation_Handbook_2023_FINAL.pdf (hereinafter, "NOAA Procedures"); and NOAA, "NOAA Guidance and Best Practices for Engaging and Incorporating Indigenous Knowledge in Decision-Making," 2024, https://www.noaa.gov/sites/default/files/2024-05/NOAA_Indigenous%20Knowledge_Guidance_with_Appendix_FINAL_e-signed%205-17-24%20%282%29.pdf (hereinafter "NOAA Guidance"). 105.

    NAO 218-8A, §5.

    106.

    "NOAA Procedures," p. 7.

    107.

    "NOAA Guidance," p. 1.

    108. See, e.g., the Rappahanock Tribe, "Rappahanock Tribe Consultation Policy," https://www.rappahannocktribe.org/consultationpolicy/. 109.

    White House, "Best Practices Guide," p. 12. Tribes and other Indigenous entities' interest in a more robust, long-term, and formal role in managing federal lands to which they have a connection is sometimes referred to as federal-tribal co-management or co-stewardship. For more information, see CRS Report R47563, Tribal Co-management of Federal Lands: Overview and Selected Issues for Congress, by Mariel J. Murray.

    110.

    See, e.g., Chilkat Indian Village et al., "Notice of Petition and Petition for Rulemaking: Bringing Hardrock Mining Regulations and Policy into the 21st Century to Protect Indigenous and Public Lands Resources in the West," September 16, 2021, p. 2, https://earthworks.org/assets/uploads/2021/09/APA-DOI-Hardrock-Mining-Rules-Petition-Combined-1.pdf.

    111.

    Chez Oxendine, "Native Leaders at Yurok Summit Demand a Seat at the Table for Offshore Wind Projects," Tribal Business News, February 3, 2024.

    112.

    See DOI, "Secretary's Tribal Advisory Committee, Policy Recommendations," August 2023, p. 56, https://kawerak.org/download/doi-stac-recommendations-august-2023_signed6-pdf/?tmstv=1788535148, p. 10 (hereinafter DOI, "STAC Recommendations") ("DOI budget requests should contain full funding figures developed in consultation with Tribal Nations."). See also United South and Eastern Tribes (USET), "Overview of OMB Rule Proposing Significant Changes to Financial Assistance," July 1, 2026, https://www.usetinc.org/event/overview-of-omb-rule-proposing-significant-changes-to-financial-assistance/ ("OMB has acknowledged the need for Tribal consultation, but consultation after publication is not meaningful. Tribal Nations must be provided the opportunity to share their input with OMB before the rule and its subsequent policy framework is proposed.").

    113.

    GAO, Tribal Funding: Actions Needed to Improve Information on Federal Funds That Benefit Native Americans, GAO-22-104602, 2022, p. 38, https://www.gao.gov/assets/gao-22-104602.pdf (hereinafter GAO, "Federal Funds").

    114.

    See Enbridge, "Enbridge Submission Docket ID No. COE-2022-0006_02.08.2022" p. 2, https://www.regulations.gov/comment/COE-2022-0006-0097; see also Interstate Natural Gas Association of America and American Gas Association, "INGAA AGA Comments on Corps Notice," p. 4, https://www.regulations.gov/comment/COE-2022-0006-0088.

    115.

    See Statement of NCAI, H.R. 5608 hearing, p. 86; Statement of Joe Shirley, President, Navajo Nation, H.R. 5608 hearing, pp. 23-25. See also Hearing Memo, Legislative Hearing on H.R. 2930, H.R. 438, and RESPECT Act, 117th Cong., 1st sess., May 20, 2021, p. 6, https://naturalresources.house.gov/uploadedfiles/hearing_memo_2021-05-20_ip_legislative_hearing.pdf ("It is difficult to assess the adequacy of federal agency consultation with a Tribe.").

    116.

    NCAI, "Resolution #MOH-17-001: A Call on Congress to Enact Legislation That Will Ensure Uniform, Effective and Meaningful Consultation with Indian Nations and Tribes Whenever Federal Activities Have Tribal Impacts," p. 2, https://ncai.assetbank-server.com/assetbank-ncai/action/viewAsset?id=619. See Mills & Nie, "Bridges," pp. 57, 89, and 94. See also White House, "Best Practices Guide," p. 11; and Routel & Holth, "Genuine Consultation," p. 466.

    117.

    EO 13175 §1(c).

    118.

    GAO, "Federal Funds," p. 49.

    119.

    See, e.g., Statement of James Cason, Associate Deputy Secretary, DOI, in H.R. 5608 hearing, pp. 5-6, and Statement of Philip N. Hogen, Chairman, National Indian Gaming Commission (NIGC), in H.R. 5608 hearing, p. 11.

    120.

    As two scholars recently wrote, "[w]hile federal directives have recognized the importance of tribal consultation, agency implementation has not been consistent, with noted problems related to specificity, enforceability, and uniformity." Kristin Green and Teresa Cavazos Cohn, "Meaningful Tribal Consultation as Part of National Forest Planning," Idaho Law Review, vol. 59 (2023), pp. 105, 107 (citing Routel & Holth, "Genuine Consultation," pp. 417, 448) (hereinafter Green & Cohn, "Meaningful Tribal Consultation").

    121.

    Green & Cohn, "Meaningful Tribal Consultation," p. 108.

    122.

    In re Surface Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C. Cir. 1980).

    123.

    Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995); HHS v. FLRA, 844 F.2d 1087, 1095-96 (4th Cir. 1987) (en banc). For more information on the legal enforceability of executive orders, see CRS Report R46738, Executive Orders: An Introduction, coordinated by Abigail A. Graber.

    124.

    See Northern Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1281 (D. Wyo. 2015).

    125.

    See, e.g., EO 13175 (describing the United States' "unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions" and noting that "[s]ince the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection"—i.e., the United States has recognized a trust responsibility).

    126.

    See, e.g., Federal Transit Administration, Tribal Consultation, https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/tribal-consultation (explaining that "[t]he need and responsibility for Federal Transit Administration to consult with Indian Tribes is based on the Federal trust relationship").

    127.

    See, e.g., EO 13084 (explaining that the order "does not ... create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States").

    128.

    See., e.g., Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995) ("Executive orders without specific foundation in congressional action are not judicially enforceable in private civil suits.... As argued by both the tribe and the BIA, this executive memorandum was intended primarily as a political tool for implementing the President's personal Indian affairs policy and not as a legal framework enforceable by private civil action.").

    129.

    Northern Arapaho Tribe, 118 F. Supp. 3d at 1281.

    130.

    United Keetoowah Band of Cherokee Indians in Oklahoma v. Fed. Commc'ns Comm'n, 933 F.3d 728, 750 (D.C. Cir. 2019).

    131.

    United Keetoowah Band of Cherokee Indians in Oklahoma v. Fed. Commc'ns Comm'n, 933 F.3d 728, 750 (D.C. Cir. 2019).

    132.

    For more information about guidance documents, see CRS Legal Sidebar LSB10591, Agency Use of Guidance Documents, by Kate R. Bowers.

    133.

    Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 710 (8th Cir. 1979).

    134.

    Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 784 (D.S.D. 2006) (emphasizing that "[b]oth Congress and the BIA have articulated a policy that mandates consultation between the BIA and the tribes in all matters affecting education" and issuing a preliminary injunction to block the planned agency action).

    135.

    Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 785 (D.S.D. 2006) (citing Lower Brule Sioux Tribe, 911 F. Supp. at 399).

    136.

    Quechan Tribe of the Fort Yuma Indian Reserv. v. Dep't of Interior, 755 F. Supp. 2d 1104, 1112 (S.D. Cal. 2010).

    137.

    Quechan Tribe of the Fort Yuma Indian Reserv. v. Dep't of Interior, 755 F. Supp. 2d 1104, 1112 (S.D. Cal. 2010). ("Indeed, Defendants' grouping tribes together (referring to consultation with 'tribes') is unhelpful: Indian tribes aren't interchangeable, and consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under NHPA.").

    138.

    Mills & Nie, "Bridges."

    139.

    Manzanita Band of the Kumeyaay Nation v. Wolf, 496 F. Supp. 3d 257, 260 (D.D.C. 2020).

    140.

    Manzanita Band of the Kumeyaay Nation v. Wolf, 496 F. Supp. 3d 257, 268-269 (D.D.C. 2020).

    141.

    N. Am. Butterfly Ass'n v. Wolf, 977 F.3d 1244, 1262 (D.C. Cir. 2020) (discussing a nontribal nonprofit's challenge to allegedly insufficient consultation with stakeholders regarding the construction of barriers and related infrastructure along the U.S.-Mexico border).

    142.

    See, e.g., Bartell Ranch LLC v. McCullough, 558 F. Supp. 3d 974, 991 (D. Nev. 2021) ("[W]hile the Court finds the Tribes' arguments regarding the spiritual distress that the [federal action] will cause persuasive, the Court must nonetheless reluctantly conclude that they have not shown sufficiently specific irreparable harm that aligns with the relief they could ultimately obtain in this case.").

    143.

    See Statement of Rep. Paul Gosar, U.S. Congress, House Natural Resources Committee, "Legislative Hearing on H.R. 312, 'Mashpee Wampanoag Tribe Reservation Reaffirmation Act'; H.R. 375, to Amend the Act of June 18, 1934, to Reaffirm the Authority of the Secretary of the Interior to Take Land into Trust for Indian Tribes, and for Other Purposes; and Discussion Draft of H.R. _, 'RESPECT Act,'" 116th Cong., 1st sess., April 3, 2019, H.Hrg. 35-971 (GPO, 2019), p. 49 (hereinafter "2019 RESPECT Act hearing").

    144. See Statement of Rep. Bruce Westerman, Ranking Member, "Respect Act hearing," p. 7, https://docs.house.gov/meetings/II/II24/20210520/112660/HHRG-117-II24-MState-W000821-20210520.pdf ("While I strongly believe that federal agencies should conduct proper Tribal consultation, and projects should include tribal voices, this bill would be extremely harmful by significantly slowing down agency actions, which could hinder needed economic development and critical infrastructure development for Tribes."). 145.

    See, e.g., Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) (under the American Indian Religious Freedom Act of 1978, the federal government should "ordinarily" consult with tribal leaders before approving a project "likely to affect religious practices"); Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, 755 F. Supp. 2d 1104, 1109 (S.D. Cal. 2010) (Under NFPA regulations at 36 C.F.R. §800.2, "consulting parties that are Indian Tribes are entitled to special consideration in the course of an agency's fulfillment of its consultation obligations") (emphasis in original).

    146.

    For example, Congress mandated that the Secretary of the Interior consult with the Minnesota Chippewa Tribe and the Grand Portage Band of Chippewa Indians, Minnesota, in the planning of facilities or developments upon the lands adjacent to the Grand Portage National Monument (P.L. 85-910). See also H.R. 5243, Northern Nevada Economic Development, Conservation, and Military Modernization Act of 2021 (117th Cong.); H.R. 7665, REC Act of 2022 (117th Cong.); and H.R. 6148/S. 3186, Advancing Tribal Parity on Public Lands Act (118th Cong.).

    147.

    For example, the PROGRESS for Indian Tribes Act (P.L. 116-180) required DOI to implement the act by setting up a negotiated rulemaking committee with tribal members. In addition, H.R. 7954 from the 119th Congress would direct DOI to consult with Tribes and Tribal organizations on DOI initiatives that affect buffalo or buffalo habitat. H.R. 9425 from the 119th Congress would require USDA to consult with Tribes and Tribal organizations prior to evaluating contracts for the Food Distribution Program on Indian Reservations.

    148.

    See, e.g., H.R. 5608 from the 110th Congress; H.R. 5023 from the 111th Congress; H.R. 1600 from the 113th Congress; H.R. 5379 from the 114th Congress; and the RESPECT Act, H.R. 3587 from the 117th Congress. H.R. 5608 from the 110th Congress would have required DOI, the Indian Health Service, and NIGC to conduct federal-tribal consultation for "any measure by the agency that has or is likely to have a direct effect on one or more Tribes."

    149.

    H.R. 3587.

    150. See, e.g., ACHP, "Improving Tribal Consultation in Infrastructure Projects," May 14, 2017, p. 4, https://www.achp.gov/sites/default/files/2019-08/ImprovingTribalConsultationinInfrastructureProjects5-24-17-2.pdf (ACHP, "Infrastructure Report"). 151.

    ACHP, "Infrastructure Report," p. 4.

    152.

    See Statement of Vanessa L. Ray-Hodge, Partner, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, 2019 RESPECT Act hearing, p. 53 (hereinafter Ray-Hodge Statement).

    153.

    Ray-Hodge Statement, p. 53.

    154. See USET, "Comments on DOI-OPM Tribal Consultation Training," May 17, 2023, p. 3, https://www.usetinc.org/wp-content/uploads/2023/05/USET-SPF-Comments-DOI_OPM-Tribal-Consultation-Training-FINAL-5_17_23.pdf (hereinafter USET, "Training Comments"). 155.

    For example, DOI's 2022 consultation policy defined federal-tribal consultation as having both department and tribal officials with decisionmaking authorities present at the session (DOI, "Consultation Policy DM," p. 2). In addition, the 2023 USACE Tribal Consultation Policy's definition of consultation states that it involves "USACE and Tribal officials with decision-making authority."

    156. See, e.g., Letter from United South and Eastern Tribes Sovereignty Protection Fund to Raul Grijalva, Chairman of the House Natural Resources Committee, March 11, 2022, pp. 2-3, https://www.usetinc.org/wp-content/uploads/2022/04/USET-SPF-Comments-RESPECT-Act-FINAL-3_11_22_-002.pdf (hereinafter USET, "Letter"). 157.

    Yellen v. Chehalis, 594 U.S. ___ (2021), Brief for Respondents Confederated Tribes of the Chehalis Reservation, et al., March 24, 2021, p. 45, https://sct.narf.org/documents/alaska_native_corp_v_chehalis/brief_respondent.pdf.

    158.

    USET, "Letter," pp. 2-3.

    159.

    USET, "Letter," pp. 2-3.

    160.

    Prepared Statement of Hon. Carmen "Hulu" Lindsey, Chair, Board of Trustees, Office of Hawaiian Affairs, U.S. Congress, Senate Indian Affairs, Upholding the Federal Trust Responsibility: Funding and Program Access for Innovation for Native Hawaiians—Part 1 and 2, 117th Cong., 2nd sess., June 2022, S.Hrg. 117-318 (GPO, 2022), p. 4.

    161.

    For example, the ANCSA (43 U.S.C. §§1601 et seq.) highlighted the need to provide for "the real economic and social needs of Natives … with maximum participation by Natives in decisions affecting their rights and property." See also P.L. 108-199, Div. H, §161, (2004), as amended.

    162. 163.

    54 U.S.C. §302706(b).

    164.

    See, e.g., H.R. 5608 from the 110th Congress.

    165.

    For a detailed discussion of tribal comments about the timing of federal-tribal consultation, see DOI, "Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions," January 2017, p. 17, https://www.doi.gov/sites/doi.gov/files/report-improving-tribal-consultation-and-tribal-involvement-jan-2017.pdf. See also Statement of Brian D. Vallo, Governor, Pueblo of Acoma, Legislative Hearing on H.R. 2930, H.R. 438, and RESPECT Act, 117th Cong., 1st sess., May 20, 2021.

    166.

    See, e.g., DOI, "Infrastructure Report," p. 17.

    167.

    DOI, "Infrastructure Report," p. 17.

    168.

    NCAI, "Call to Congress."

    169.

    See Statement of Kevin Washburn, Professor of Law, University of Iowa College of Law, Iowa City, Iowa, "2019 RESPECT Act hearing," p. 22.

    170.

    Interstate Natural Gas Association of America and American Gas Association, "INGAA AGA Comments on Corps Notice," p. 2, https://www.regulations.gov/comment/COE-2022-0006-0088.

    171.

    Interagency Working Group on Mining Laws, Regulations, and Permitting, Recommendations to Improve Mining on Public Lands, September 2023, p. 74, https://www.doi.gov/sites/default/files/mriwg-report-final-508.pdf (hereinafter Interagency Working Group, "Mining Recommendations").

    172.

    Statement of Rep. Paul Gosar, "2019 RESPECT Act hearing," p. 49.

    173.

    36 C.F.R. §800.2(c)(2)(ii)(A). On July 24, 2026, the ACHP voted to move forward with a Notice of Proposed Rulemaking regarding potential revisions to Section 106 implementing regulations. Although the proposed revisions have not, as of publication, been finalized, draft language would provide more discretion to federal agencies as to if or when consultation may occur. See ACHP, "ACHP Votes to Move Forward with Notice of Proposed Rulemaking," July 24, 2026, https://www.achp.gov/news/achp-votes-move-forward-notice-proposed-rulemaking.

    174.

    See, e.g., H.R. 2532 from the 116th Congress and H.R. 3307 from the 118th Congress.

    175.

    See, e.g., H.R. 3587, RESPECT Act, Title II, from the 117th Congress.

    176.

    Ray-Hodge Statement, p. 53.

    177.

    Ray-Hodge Statement, p. 53.

    178.

    Ray-Hodge Statement, p. 54.

    179.

    See DOI, "Infrastructure Report," p. 18. GAO has reported that federal agencies inconsistently communicate about final agency decisions; see GAO, Tribal Consultation: Additional Federal Actions Needed for Infrastructure Projects, GAO-19-22, March 2019, pp. 21, 40-41, https://www.gao.gov/products/gao-19-22 (hereinafter GAO, "Tribal Consultation: Infrastructure").

    180.

    See, e.g., BIA, "DM Comments," p. 5 ("Several Tribes agreed with the intent of the consensus-seeking model.").

    181.

    White House, "Best Practices Guide," p. 12.

    182.

    DOI, "STAC Recommendations," p. 56.

    183.

    Organized Village of Kasaan et al., "Petition for USDA Rulemaking to Create a Traditional Homelands Conservation Rule for the Long-Term Management and Protection of Tradition and Customary Use Areas in the Tongass National Forest," July 17, 2020, p. 1, https://www.alaskawild.org/wp-content/uploads/2020/07/FINAL-Southeast-Tribes-APA-Petition-7-17-2020-Nine-Tribe-Signatures.pdf.

    184.

    See, e.g., Statement of Philip N. Hogen, Chairman, NIGC, in H.R. 5608 hearing, p. 12. See also Statement of James Cason, Associate Deputy Secretary, DOI, H.R. 5608 hearing, pp. 18-19.

    185.

    See, e.g., USDA Office of Tribal Relations and USDA Forest Service, "Report to the Secretary of Agriculture: USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites," December 2012, pp. 9-10, https://www.fs.usda.gov/spf/tribalrelations/documents/sacredsites/SacredSitesFinalReportDec2012.pdf.

    186.

    GAO, "Tribal Consultation-Infrastructure," p. 30.

    187.

    North Dakota Department or Water Resources, "Comment on FR Doc #2024-02448," pp. 5-6, https://www.regulations.gov/comment/COE-2023-0005-0043.

    188.

    North Dakota Department or Water Resources, "Comment on FR Doc #2024-02448," pp. 5-6, https://www.regulations.gov/comment/COE-2023-0005-0043.

    189.

    National Waterways Conference, "Comment on FR Doc # 2024-02448," pp. 27-28, https://www.regulations.gov/comment/COE-2023-0005-0048. USACE projects' nonfederal sponsors are typically state, local, or tribal entities, or nonprofits with the consent of the local government, that are responsible for sharing study and construction costs, providing real estate interests, and performing operations and maintenance for many types of USACE water resource projects.

    190.

    U.S. Congress, House Committee on Appropriations, Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2023, report to accompany H.R. 8262, 117th Cong., 2nd sess., July 1, 2022, H.Rept. 117-400 (GPO, 2022), p. 10.

    191.

    NHPA's regulations define consultation as "the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process" (36 C.F.R. §800.16(f)).

    192.

    See, e.g., H.R. 2689 in the 115th Congress, H.R. 2532 and S. 4331 in the 116th Congress, and H.R. 9439 and H.R. 3587 in the 117th Congress.

    193.

    S. 5186 in the 117th Congress.

    194.

    See, e.g., DOI, "Infrastructure Report," pp. 44, 58. See also Statement of Suzan Shown Harjo, President, Morning Star Institute, U.S. Congress, Senate Committee on Indian Affairs, Native American Sacred Places, 108th Cong., 1st sess., 2003, S.Hrg. 108-197 (GPO, 2003), pp. 8, 20, 54-55.

    195.

    UCLA School of Law, Native Nations Law & Policy Center, "The Need for Confidentiality Within Tribal Cultural Resource Protection," December 2020, p. 6, https://law.ucla.edu/sites/default/files/PDFs/Native_Nations/239747_UCLA_Law_publications_Confidentiality_R2_042021.pdf (hereinafter UCLA, "Confidentiality").

    196.

    White House, "Best Practices Guide," p. 12.

    197.

    White House, "Best Practices Guide," p. 12.

    198.

    For more information about the Freedom of Information Act, see CRS In Focus IF11450, The Freedom of Information Act (FOIA): An Introduction, by Benjamin M. Barczewski.

    199.

    Statement of William Bettenberg, Director, Office of Policy Analysis, DOI, U.S. Congress, Senate Committee on Indian Affairs, Native American Sacred Places, 108th Cong., 1st sess., 2003, S.Hrg. 108-197 (GPO, 2003), pp. 3-4.

    200.

    5 U.S.C. §552(a) (proactive disclosure requirement), 5 U.S.C. §552(b) (requirements to disclosure records subject to a request).

    201.

    See ARPA (16 U.S.C. §§470hh) and NHPA (54 U.S.C. §307103). NAGPRA has confidentiality provisions in its implementing regulations (43 C.F.R. Part 10.9). For a discussion of these laws and regulations, see UCLA, "Confidentiality," p. 9.

    202.

    25 U.S.C. §3077.

    203.

    Interagency Working Group, "Mining Recommendations," p. 8.

    204.

    See H.R. 8616 and H.R. 3444.

    205.

    See GAO, "Tribal Consultation: Infrastructure," p. 24.

    206.

    GAO, "Tribal Consultation: Infrastructure," pp. 24-25.

    207.

    Interagency Working Group, "Mining Recommendations," p. 74.

    208.

    Statement of NCAI, H.R. 5608 hearing, p. 85.

    209.

    White House, "Best Practices Guide," p. 11. DOI has committed to establishing this centralized database, but it has not been established to date (DOI, "A Detailed Plan for Improving Interior's Implementation of E.O. 13175," https://www.doi.gov/sites/doi.gov/files/detailed-plan-for-improving-interiors-implementation-of-e.o.-13175-omb-submission.pdf).

    210.

    GAO, "Federal Land and Water Management: Additional Actions would Strengthen Agreements with Tribes, 26-106626, January 28, 2026, https://files.gao.gov/reports/GAO-26-106626/index.html (hereinafter GAO, "Agreements with Tribes").

    211.

    GAO, "Tribal Consultation: Infrastructure," p. 30.

    212.

    GAO, "Agreements with Tribes."

    213.

    GAO, "Agreements with Tribes."

    214.

    GAO, "Tribal Consultation: Infrastructure," pp. 26-27.

    215.

    Ray-Hodge Statement, p. 55.

    216.

    See USET, "Training Comments," p. 2 ("USET SPF has long recommended mandatory training on U.S.-Tribal relations and the trust obligation for all federal employees").

    217.

    See, e.g., RESPECT Act (H.R. 3587).

    218.

    See H.R. 9439, §12 ("the current lack of centralization in Federal agencies' Tribal consultations- (A) results in a number of challenges, including scheduling conflicts and unsustainable drains on resources of Indian Tribes and the time of Tribal leaders").

    219.

    In 2026, GAO found that limited agency and tribal funding impeded federal-tribal collaboration (GAO, "Agreements with Tribes").

    220.

    A tribal historic preservation officer is appointed by the Tribe for purposes of NHPA §106 compliance on tribal lands (36 C.F.R. §800.16).

    221.

    See, e.g., Statement of Ira L. Matt, Executive Director, the National Association of Tribal Historic Preservation Officers, U.S. Congress, House Committee on Appropriations, Subcommittee on Interior, Environment, and Related Agencies, 119th Cong., 2nd sess., March 18, 2026.

    222.

    Permitting Dashboard, "ERIF Tribal Assistance Program," https://www.permits.performance.gov/fpisc-content/erif-tribal-assistance-program_old. See also Permitting Council, "Permitting Council Announces Additional $10 Million in Tribal Funding" December 19, 2024, https://www.permitting.gov/newsroom/press-releases/permitting-council-announces-additional-10-million-tribal-funding.

    223.

    GAO, "Tribal Consultation: Infrastructure," p. 48.

    224.

    GAO, "Tribal Consultation: Infrastructure," pp. 49-50.