Tribal Consultation: Administration Guidance and Policy Consideration

Tribal Consultation: Administration Guidance and Policy Consideration

INSIGHTi
Tribal Consultation: Administration Guidance
and Policy Consideration
February 18, 2021
On January 26, 2021, President Biden issued a Presidential Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships (2021 P.M.). The 2021 P.M. requires agencies to create a
“detailed plan of actions” to implement Executive Order 13175 (E.O. 13175), issued November 6, 2000,
which mandates federal agencies to consult with tribes when developing federal policies with “tribal
implications.” The 2021 P.M. reaffirms the policy announced in the Presidential Memorandum of
November 5, 2009 (2009 P.M.) requiring agencies to “prepare and periodical y update” a “detailed plan of
actions” to implement E.O. 13175. According to the 2021 P.M., the Biden Administration’s priorities
include the following: respecting tribal sovereignty and self-governance, fulfil ing federal trust and treaty
obligations, and engaging in “regular, meaningful, and robust” consultation with tribes.
This Insight provides an overview of executive actions on tribal consultation from 2000 to 2021 and
observer and stakeholder comments about the 2021 P.M. This Insight also discusses potential policy
considerations for Congress.
Executive Actions on Tribal Consultation
The 2021 P.M. cites two prior presidential actions on tribal consultation: E.O. 13175 and the 2009 P.M.
E.O. 13175 mandates tribal consultation when federal agency policies involve regulations, proposed
legislation, or other policy actions that have a “substantial direct effect” on tribes. Among other things,
E.O. 13175 requires agencies to develop a process ensuring “meaningful and timely input” by tribes
under these circumstances.
The 2009 P.M. directed each agency to submit within 90 days of its issuance a “detailed plan of actions”
to the Office of Management and Budget (OMB) describing how the agency wil implement E.O. 13175.
Accordingly, for example, the Department of the Interior’s plan of actions included developing a
department-wide consultation policy and supplemental bureau policies. The 2009 P.M. required tribal
consultation on agency plans prior to submittal to OMB and directed agencies to submit progress reports
to OMB and the Assistant to the President for Domestic Policy (APDP). The 2009 P.M. also required
OMB and APDP to report to the President on agency implementation of E.O. 13175 and recommend
improvements to agency plans and tribal consultation.
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The 2021 P.M. reaffirms the 2009 P.M.’s policy objectives and restates the 2009 P.M. requirements.
Agencies are again required to develop a “detailed plan of actions” implementing E.O. 13175, consult
with tribes about the plan, and submit the plan to OMB within 90 days from the date of the memorandum.
Similarly, agencies are directed to submit progress reports on plan implementation, and OMB and APDP
are required to report to the President on agency implementation of E.O. 13175.
Observer and Stakeholder Commentary
Various Administration and tribal officials have commented on the 2021 P.M. The special assistant to the
President for Native American Affairs on the White House Domestic Policy Council stated the 2021 P.M.
requires agencies to have a “strong process in place for consultation.” The Department of Housing and
Urban Development issued a press release addressing the memorandum and the department’s
commitment to implement it. Although one news source commented that the 2021 P.M. is not a large
departure from current federal policy, some tribes and tribal organizations support the memorandum. The
chairwoman of the National Congress of American Indians stated she is encouraged by the
Administration’s commitment to tribal consultation. Cherokee Nation remarked that the 2021 P.M. gives
the tribe hope for better communication with the federal government.
Policy Considerations
Agency responses to the 2021 P.M. are not yet known, although some agencies have scheduled tribal
consultations on the detailed plan of actions. Impediments to tribal consultation have been identified as an
issue in recent years. Notably, in 2019, the Government Accountability Office issued a report identifying
factors hindering effective tribal consultation in federal infrastructure projects. Some factors identified by
tribes included timing of consultation, such as consulting late into project development stages; insufficient
tribal resources to participate in consultation, such as staffing resources to respond to consultation
requests; and inadequate agency officials’ training on consultation requirements. Some factors identified
by agencies included difficulties in initiating consultation, such as identifying the relevant tribes to
consult; limited tribal response and participation in consultation; and insufficient agency resources to
conduct consultation, such as limited funding and staff to support consultation.
In 2016, in response to Standing Rock Sioux Tribe’s objections to the Dakota Access pipeline, the
Departments of the Interior, Army, and Justice (Departments) engaged in tribal consultations to discuss
nationwide reform in considering tribes’ input into federal infrastructure decisions. In 2017, the
Departments released a report that, among other things, articulated overarching federal principles for
effective consultation, such as initiating consultation as soon as agencies contemplate a federal action
impacting tribal interests and reaching a consensus with tribes on decisionmaking where possible.
In the 115th Congress, the “Requirements, Expectations, and Standard Procedures for Executive
Consultation with Tribes Act” (H.R. 2689) would have prescribed tribal consultation procedures
for federal agencies. Congress did not enact H.R. 2689 and has not passed legislation
establishing a general mandate requiring federal agencies to engage in tribal consultation.
However, some laws may require agencies to consult with tribes for a specific purpose. For
instance, the National Historic Preservation Act created a review process for agencies to fol ow when
a federal “undertaking” may affect a “historic property” of religious and cultural significance to a
tribe.
Some tribes have expressed support for a more rigorous standard of “free, prior, and informed consent”—
or FPIC. In the 116th Congress, several bil s addressed potential impacts to land and resources of Indian
tribes and incorporated FPIC, such as H.R. 2532 and S. 4331, but were not enacted.

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Congress may consider whether to change or maintain existing requirements under law for agencies to
engage in tribal consultation. Should Congress choose to change these requirements, Congress may
examine key principles for consultation, the extent of federal agency actions covered, and potential
budgetary impacts in changing consultation mandates.

Author Information

Tana Fitzpatrick

Specialist in Natural Resources Policy

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