Sec. 12. Tribal consultation by Federal agencies
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The purposes of this section are— to enumerate a non-exhaustive set of principles to inform a codification of how Federal agencies should engage in meaningful and timely Tribal consultation; to underscore the importance of Tribal consultation in the fulfilment of the trust and treaty obligations of the Federal Government; to affirm Tribal consultation and the principle of free, prior, and informed consent as rights of Indian Tribes, predicated on Tribal sovereignty and self-determination; and to affirm the need for the entire Federal Government to recognize the importance of “regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes,” as quoted in Executive Order 13175 ( 25 U.S.C. 5301 note; relating to consultation and coordination with Indian Tribal governments) and elaborated in the Presidential Memoranda of January 26, 2021, and November 30, 2022.
Congress finds that— as of January 2021, there existed more than 27 directives, handbooks, plans, policies, orders, and similar documents implementing various Tribal consultation policies, totaling more than 300 pages; the current lack of centralization in Federal agencies’ Tribal consultation policies results in a large number of policies with which Indian Tribes are expected to be familiar in order to engage in consultation; the current lack of centralization in Federal agencies’ Tribal consultations— results in a number of challenges, including scheduling conflicts and unsustainable drains on the resources of Indian Tribes and the time of Tribal leaders; and reflect a lack of respect for Tribal leaders;
Federal agency consultation policies take dramatically different views on the purpose of Tribal consultation, resulting in significantly different experiences for Indian Tribes attempting to engage in meaningful nation-to-nation dialogue; and history demonstrates that the Federal Government best serves Native American communities when Tribal governments are empowered to lead their own communities. It is the sense of Congress that— consultation is a right between sovereigns, and the responsibilities and privileges associated with it cannot be delegated to other actors; the purpose of Tribal consultation should be for the Federal Government to obtain the free, prior, and informed consent of affected Indian Tribes;
Tribal consultation— is both a right of Indian Tribes and a process; should occur when any Federal rulemaking, legislation, policy, guidance, operational activity, grant or funding formula change, or other action may have a substantial direct effect on Indian Tribes; requires dialogue, which should often take place through formal face-to-face meetings, but may also occur through telephonic, electronic, or printed means; should be used to empower Tribal governments to lead their own communities; should be a collaborative process; should be built on the exchange of information; and should promote enhanced communication that emphasizes trust, respect, and shared responsibility; should involve individuals with decision-making authority; and in its current form is inadequate and requires far more from the Federal Government; the records resulting from consultations between the Federal Government and Tribal governments should be maintained and published, subject to the condition that sensitive Tribal information should be protected; for Tribal consultation to be effective, both Indian Tribes and the Federal Government should have the capacity to engage effectively in the consultation process; any legislation or policy attempting to prescribe the conditions of Tribal consultation should be preceded by the gathering of Tribal input with the goal of reaching a consensus on the proposed legislation; and Indian Tribes— should be involved in the Tribal consultation process on their request or as early as practicable; should have a meaningful remedy for violations of their right to Tribal consultation; should be entitled to a codified, formal dispute resolution process to provide the Indian Tribes with a potential remedy when their rights as sovereigns are violated by the Federal Government; and should receive adequate notice, and sufficient information, about any Tribal consultation sessions.
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