Consultation: An American Tradition Adrienne Fleek Alaska Native Affairs Liaison, National Park Service Alaska Tribal Transportation working group 3.21.18 Fort Laramie (Sioux Treaty ) negotiation in 1868 was an agreement between the U.S. and the Oglala, Miniconjoy, and Brule banks of Lakota peole, Yanktonai Dakota, and Arapaho Nation signed on April 29, 1868 at Fort Laramie in the Wyoming Territory, guaranteeing to the Lakota ownership of the Black Hills, and further land and hunting rights in South Dakota, Wyoming, and Montana. Fort Laramie WY now a National Historical Site. “Crossroads of a Nation moving west”. Oriiginally established as a private fur trading fort in 1834, it evolved into the largest and best known military post on the Northern plains before it’s was abandoned in 1890. Witnessed the sweeping saga of America’s Western expansion and Indian resistance to encroachment on their territories. *President Obama, signing agreement in 2009 Presidential Memorandum on Tribal Consultation DOI Policy on Consultation with Indian Tribes 2011--Supplemental Policy with ANCSA Corporations 2012 *A federally recognized tribe is a Native American or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the U.S. *Trust Responsibility: Is a legal obligation between the U.S. and federally recognized Tribes. The U.S. has a unique relationship with tribal governments as set forth in the Constitution, treaties, statutes, Executive Orders, and court decisions. Federally recognized tribes are recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, services, and protections because of their special relationship with the United States. 

Who do we consult with? On what topics (When)? Why do we consult? Who do we consult with? On what topics (When)? Tribes and ANCSA Corporations Consultation tips (how) Consultation is an enhanced form of communication that emphasizes trust, respect, and shared responsibility. It is an open and free exchange of information and opinions among parties which leads to mutual understanding and comprehension. Consultation is integral to a deliberative process that results in effective collaboration and informed decision-making.

Required: EO 13175, DOI Consultation Policies Why Consult? Required: EO 13175, DOI Consultation Policies Consulting with Indian Tribal Governments http://www.doi.gov/cobell/upload/FINAL-Departmental- tribal-consultation-policy.pdf Consulting with ANCSA Corporations https://www.doi.gov/news/pressreleases/Interior- Announces-Consultation-Policy-for-Alaska-Native- Corporations Good business practice: Fosters positive relationships with our community members who help us achieve the mission of preserving and protecting America’s special places. Honors the government to government relationship we have with Tribes—dependent sovereign nations. EO 13175 Consultation and Coordination with Indian Tribal Governments (Obama 11/6/2000) “Establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the U.S. government to government relationships with Indian Tribes, and to reduce the imposition of unfunded mandates upon Indian Tribes. Good Business practice: ANILCA provided NPS Units in AK a unique opportunity to embrace and continue indigenous way of life—this adds to the overall richness of the fabric of which makes up the American culture—Congress recognized this in 1980 and wanted to set up special provides through ANILCA to continue this way of life so we have an extra ability to work towards protecting this way of life that adds value to the whole United States so it’s even more important to consult in a meaningful way in Alaska compared to the lower 48. Local Hire benefit of getting to know community and attract future employees…longevity.

Important distinctions in DOI’s Policy “The DOI distinguishes the Federal relationship to ANCSA Corporations from the government-to-government relationship between the Federal Government and federally recognized Indian Tribes in Alaska and elsewhere, and this policy will not diminish in any way that relationship and the consultation obligations towards federally recognized Indian Tribes.” “To the extent that concerns expressed by Indian Tribes and ANCSA Corporations substantively differ, Departmental officials shall give due consideration to the right of sovereignty and self-governance of federally recognized Indian Tribes.” Suggest doing G2G separate from consultation with ANCSA Corporations 2 Policies Tribal adopted 12/1/2011 ANCSA adopted 8/10/2012

Who do we consult with? ANCSA Corporations Tribal Governments Government to government Recognizing sovereign dependent nations Based on 200+ years of political interaction Treaties, obligations, promises by the U.S. Government Federal trust responsibility to tribes U.S. Government has a responsibility to protect tribal trust ANCSA Corporations Government to corporation Congressionally mandated in 2004/2005 appropriations legislation No trust responsibility

When is consultation required? DOI’s Policy on Consulting with Indian Tribes directs agencies/bureaus to consult with federally recognized Indian tribes when taking action that may have a substantial direct effect on an Indian Tribe Departmental Actions include but are not limited to regulation rulemaking policy guidance legislative proposal grant funding formula changes, or operational activity that may have a substantial direct effect on an Indian Tribe… on matters including, but not limited to: tribal cultural practices, lands, resources or access to traditional areas of cultural or religious importance on federally managed lands. Policies that have tribal implications refers…actions that have substantial direct effects on one or more Indian tribes Regulation--Wildlife Regs Rulemaking--Superintedents Compendium Operational activity—building a road within a park

Tribal Consultation – Practical Tips Before Consultation Call Tribal Office and speak with Administrator Explain the purpose of consulting Determine if the tribe is interested in consulting on this action Decide on a mutually acceptable date Develop a format for the consultation Develop the draft agenda collaboratively with the tribe Ask how council meetings are typically conducted so you can prepare DOI staff Include appropriate representatives Federal representatives who are decision-makers (Manager of public land unit or Regional Director for Statewide action) Official representative(s) of federally recognized tribal governments (Tribal President/Chair/Chief or officially designated official)

Tribal Consultation – Practical Tips Before Consultation continued Prepare Letter Inviting Tribes to consult (30 days before proposed date) Send to Tribal Chair and cc Contact (usually Administrator and/or Environmental/cultural staff) Incorporate Project or Activity Description Include Date and Place of Meeting Include a DRAFT Meeting Agenda Send information describing the Action as early in the process as possible with enough detail to fully inform the tribe Also email and fax the invitation letter to the Tribal office and follow up with a phone call a week later to make sure it was received and gauge if they are interested in consulting on the issue.

During the Consultation Describe the Agency action – be brief! Outline the potential impacts to tribal interests (federal perspective) If the process is long-term, describe timeline and identify key decision points Ask if the tribe needs more information Listen and record Tribe’s perspective of potential impacts/concerns. Reach a consensus of when the Tribe can have their official comments to the federal agency. Offer to consult as needed After the Consultation Prepare draft notes following the meeting (send to tribe for review/comments) Send final notes to tribe Fulfill any commitments as soon as possible Keep the tribe informed as progress is made, especially for projects that are long-term Include tribal guidance as an integral part of Agency decision-making!

When is consultation required with ANCSA Corporations? DOI’s Policy on Consulting with ANCSA Corporations directs agencies/bureaus to consult when taking action with substantial direct effect on ANCSA Corporations’ “interests” which are defined as: Land, water areas, or resources; or any activity that may impact the ability of an ANCSA Corporation to participate in Departmental programs for which it qualifies. *not on regulation, rulemaking, guidance, policy, legislative proposal, grant funding formula, operational activity, or cultural practices. *Best practice: do ANCSA consultations separate from Tribal. *13 Regional and 180+Village Corporations Tribal Consultation applies for regulation, rulemaking/policy, guidance, legislative proposal, grant funding formula changes, or operational activity that may have a substantial direct effect on an Indian Tribe.

Impact to tribes? Low response? # requests from federal agencies? # of tribal staff? Composition of staff? Is it different for ANCSA Corporations? Nostrils=compacts + grants Tribal transportation EPA env IGAP Housing "NEPA" translates in Inupiaq: "to scream and shout for no reason" (Niipa) so we avoided using the acronym the rest of the consultation!

Majority of work is little “c” and sometimes it gets to big “C”. Issues/Questions SO 3342 Identify Opportunities for Cooperative and Collaborative Partnerships with Federally Recognized Indian Tribes in the Management of Federal Lands and Resources 1/20/17 memo: Office of Executive Secretariat and Regulatory Affairs “…correspondence from Indian or Alaska tribal leaders…must be forwarded to OES…” (formal G2G not routine correspondence). DOI Secretarial Priorities (10) #4 Ensure tribal sovereignty means something. Majority of work is little “c” and sometimes it gets to big “C”. SO 3442 purpose encourage cooperative management agreements and other collaborative partnerships btwn DOI resource managers and tribes that will further shared interests in the management of Federal lands and resources; and establish a process and provide institutional support to ensure that land and resource managers evaluate and develop opportunities to further establish partnerships that benefit tribes and Federal agencies. 1/20/17 memo from OES—until further notice (will probably change). Jennifer Talking-Spaulding “routine correspondence” doesn’t need to go to OES—just formal G2G. Tribal status/sovereignty/G2G/funding