NEZ PERCE TRIBE

 

GUIDANCE ON GOVERNMENT-TO-GOVERNMENT CONSULTATION

 

As a fiduciary, the United States and all its agencies owe a trust duty to the Nez Perce Tribe and other federally recognized tribes.  See United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707 (1987); United State v. Mitchell, 463 U.S. 206, 225 (1983); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).  This trust relationship has been described as “one of the primary cornerstones of Indian law,” Felix Cohen, Handbook of Federal Indian Law 221 (1982), and has been compared to one existing under the common law of trusts, with the United States as trustee, the tribes as beneficiaries, and the property and natural resources managed by the United States as the trust corpus.  See, e.g., Mitchell, 463 U.S. at 225.

 

The United States’ trust obligation includes a substantive duty to consult with a tribe in decision-making to avoid adverse impacts on treaty resources and duty to protect treaty-reserved rights “and the resources on which those rights depend.”  Klamath Tribes v. U.S., 24 Ind. Law Rep. 3017, 3020 (D.Or. 1996).  The duty ensures that the United States conduct meaningful consultation “in advance with the decision maker or with intermediaries with clear authority to present tribal views to the…decision maker.”  Lower Brule Sioux Tribe v. Deer, 911 F.Supp 395, 401 (D. S.D. 1995).

 

Further, Executive Order 13175 provides that each “agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”  According to the President’s April 29, 1994 Memorandum regarding Government-to-Government Relations with Native American Tribal Governments, federal agencies “shall assess the impacts of Federal Government plans, projects, programs, and activities on tribal trust resources and assure that Tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities.”  As a result, Federal agencies must proactively protect tribal interest, including those associated with tribal culture, religion, subsistence, and commerce.  Meaningful consultation with the Nez Perce Tribe is a vital component of this process.

 

Consultation is the formal process of negotiating, cooperation, and mutual decision-making between two sovereigns:  the Nez Perce Tribe (NPT) and the United States (including all federal agencies).  Consultation is the process that ultimately leads to the development of a decision, no just a process or a means to an end.  This most important component of consultation is the ultimate decision.

 

Consultation does not mean notifying the Tribe that an action will occur, requesting written comments on that prospective action, and then proceeding with the action.  In this scenario the decision is not affected.  “Dear Interested Party” letters are not consultation.  It is equally important to understand that as a sovereign government, a Tribe may elect not to conduct government-to-government consultation or may decide to limit the scope of their consultation as needed.

Objectives of Consultation:

 

1.              Assure that the Nez Perce Tribe Executive Committee (NPTEC) understands the technical and legal issues necessary to make an informed policy decision;

2.              Assure federal compliance with treaty and trust obligations, as well as other applicable federal laws and policies impacting tribal culture, religion, subsistence, and commerce;

3.              Improve policy-level decision-making of both NPTEC and federal government;

4.              Bilateral decision-making among two sovereigns (co-management of resources);

5.              Ensure the protection of NPT resources, culture, religion, and economy;

6.              Ensure compliance with tribal laws and policies;

7.              Develop and achieve mutual decisions through a complete understanding of technical and legal issues; and

8.              Improve the integrity of federal-tribal decision.

 

Process of Consultation:

 

Consultation works through both technical and policy-level meetings to differentiate between technical and policy issues allowing for proper technical level staff consultation and then policy-level consultation for those issues that remain unresolved or for those issues that are clearly only resolvable at the policy level.  Consultation is the process of coming to common understanding of the technical and legal issues that affect, or are affected by, a decision and then using this understanding to formulate a decision.

 

Meaningful consultation requires that federal agencies and Tribes understand their respective roles and have a basic understanding of the legal underpinnings of the government-to-government relationship, including the responsibility of the federal government under the Trust doctrine.  In addition, federal agencies will benefit fro some understanding of tribal culture, perspectives, worldview, and treaty rights.  Tribal governments must understand the policy decision-making authority of the federal agency.  Tribal governments must understand the non-tribal politics of the federal agency decision that consultation will affect.

 

In these examples, it is critical to note that a tribal government cannot understand the politics of the federal agency decision without personal communications.  Similarly, the federal agency cannot understand the Tribe’s issues and concerns unless agency staff met with the Tribe to discuss those issues and concerns.  Without communication, consultation is meaningless and a mutual decision is difficult or impossible.

 

The consultation process works like this:

 

  1. Federal agency contacts NPTEC or its appointed point-of-contact to notify of an impending project proposal or to conduct an activity that may or may not impact the tribal resource.
  2. NPTEC responds back that this issue is important and that it would like to initiate consultation.  NPTEC requests federal agency technical experts meet with tribal technical staff (or NPTEC requests a policy level meeting).
  3. Consultation has been initiated.  Technical staff meet.  Technical and legal issues are discussed; and the result is that tribal staff understand the proposal and federal agency staff understand at technical level why this proposed activity is of concern to the Tribe.  This allows respective technical staff to brief respective policy entities and to provide informed opinions and recommendations.
  4. Tribal staff briefs NPTEC.  Consultation is initiated between policy-level decision-makers from both the Tribe and the federal agency.
  5. Additional meetings are held, if necessary, leading up to the decision.
  6. Federal agency and Tribe formulate a decision.  Assurances are made that the decision is consistent with federal laws and tribal laws and policies.  This means the decision is consistent with applicable natural and cultural resource laws and policies.  For the NPT specifically, it means the decision protects the resources to which the NPT has specific treaty-reserved rights and enables continues practice of tribal religious, cultural, and subsistence activities.

 

These steps may be adapted to suit the needs of the decision-making process leading to the formulation of a decision.