Presidential Document2022-26555
Uniform Standards for Tribal Consultation
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Published
December 5, 2022
Signed
November 30, 2022
Issuing agencies
Executive Office of the President
Full Text
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<title>Federal Register, Volume 87 Issue 232 (Monday, December 5, 2022)</title>
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[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Presidential Documents]
[Pages 74479-74483]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26555]
[[Page 74477]]
Vol. 87
Monday,
No. 232
December 5, 2022
Part II
The President
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Memorandum of November 30, 2022--Uniform Standards for Tribal
Consultation
Presidential Documents
Federal Register / Vol. 87 , No. 232 / Monday, December 5, 2022 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 74479]]
Memorandum of November 30, 2022
Uniform Standards for Tribal Consultation
Memorandum for the Heads of Executive Departments and
Agencies
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered as follows:
Section 1. Background. The United States has a unique,
legally affirmed Nation-to-Nation relationship with
American Indian and Alaska Native Tribal Nations, which
is recognized under the Constitution of the United
States, treaties, statutes, Executive Orders, and court
decisions. The United States recognizes the right of
Tribal governments to self-govern and supports Tribal
sovereignty and self-determination. The United States
also has a unique trust relationship with and
responsibility to protect and support Tribal Nations.
In recognition of this unique legal relationship, and
to strengthen the government-to-government
relationship, Executive Order 13175 of November 6, 2000
(Consultation and Coordination With Indian Tribal
Governments), charges all executive departments and
agencies (agencies) with engaging in regular,
meaningful, and robust consultation with Tribal
officials in the development of Federal policies that
have Tribal implications. Executive Order 13175 also
sets forth fundamental principles and policymaking
criteria.
The Presidential Memorandum of January 26, 2021 (Tribal
Consultation and Strengthening Nation-to-Nation
Relationships), requires agencies to submit detailed
plans of action to implement the policies and
directives of Executive Order 13175. In response, all
agencies subject to Executive Order 13175 submitted
plans of action, including over 50 agencies that
submitted a consultation plan of action for the first
time. Agencies also conducted more than 90 national-
level Tribal consultations, focusing specifically on
agency Tribal consultation policies. The purpose of
this memorandum is to establish uniform minimum
standards to be implemented across all agencies
regarding how Tribal consultations are to be conducted.
This memorandum is designed to respond to the input
received from Tribal Nations regarding Tribal
consultation, improve and streamline the consultation
process for both Tribes and Federal participants, and
ensure more consistency in how agencies initiate,
provide notice for, conduct, record, and report on
Tribal consultations. These are baseline standards;
agencies are encouraged to build upon these standards
to fulfill the goals and purposes of Executive Order
13175 consistent with their unique missions and
engagement with Tribal Nations on agency-specific
issues.
Sec. 2. Consultation Principles. Tribal consultation is
a two-way, Nation-to-Nation exchange of information and
dialogue between official representatives of the United
States and of Tribal Nations regarding Federal policies
that have Tribal implications. Consultation recognizes
Tribal sovereignty and the Nation-to-Nation
relationship between the United States and Tribal
Nations, and acknowledges that the United States
maintains certain treaty and trust responsibilities to
Tribal Nations. Consultation requires that information
obtained from Tribes be given meaningful consideration,
and agencies should strive for consensus with Tribes or
a mutually desired outcome. Consultation should
generally include both Federal and Tribal officials
with decision-making authority regarding the proposed
policy that has Tribal implications. Consultation will
ensure that applicable information is readily available
to all parties, that Federal and Tribal officials have
adequate time
[[Page 74480]]
to communicate, and that after the Federal decision,
consulting Tribal Nations are advised as to how their
input influenced that decision-making. All of these
principles should be applied to the extent practicable
and permitted by law.
Sec. 3. Designating an Agency Point of Contact for
Tribal Consultation. (a) The head of each agency shall
designate a primary point of contact for Tribal
consultation matters who is responsible for advising
agency staff on all matters pertaining to Tribal
consultation and serving as the primary point of
contact for Tribal officials seeking to consult with
the agency.
(b) The head of each agency shall consider
designating additional points of contact as necessary
to facilitate consultation on varied subject matter
areas within the agency.
(c) Each agency shall provide the names and contact
information of the designated agency points of contact
for Tribal consultation on its website, as well as to
the White House Office of Intergovernmental Affairs and
the White House Council on Native American Affairs.
(d) The designated agency points of contact may
delegate consultation responsibilities to other
decision-making agency officials within their agency as
necessary and appropriate.
Sec. 4. Determining Whether Consultation Is
Appropriate. The head of each agency shall ensure that
agency staff undertake an analysis as early as possible
to determine whether Tribal consultation is required or
appropriate consistent with Executive Order 13175. This
analysis should occur regardless of whether a Tribal
government requests consultation. When a Tribal
government requests consultation, the agency--to the
extent that it has not yet performed the analysis to
determine whether consultation is appropriate--shall
conduct that analysis as soon as possible and respond
to the Tribe within a reasonable time period. If there
is a reasonable basis to believe that a policy may have
Tribal implications, consistent with the definition in
Executive Order 13175, the agency shall follow the
applicable requirements for consultation. Agencies may
still engage in Tribal consultation even if they
determine that a policy will not have Tribal
implications, and should consider doing so if they
determine that a policy is of interest to a Tribe or
Tribes.
Sec. 5. Notice of Consultation. (a) When inviting a
Tribe or Tribes to consult, the head of each agency
should:
(i) develop a notice of consultation, which includes:
(A) sufficient information on the topic to be discussed, in an accessible
language and format, and context for the consultation topic, to facilitate
meaningful consultation;
(B) the date, time, and location of the consultation, as requested by the
agency or as developed in consultation with the Tribe or Tribes;
(C) if consulting virtually or by telephone, links to join or register in
advance;
(D) an explanation of any time constraints known to the agency at that
time, such as statutory deadlines;
(E) deadlines for any written comments on the topic; and
(F) names and contact information for agency staff who can provide more
information;
(ii) transmit the notice of consultation, using the agency's standard
method of communication, to each affected Tribal government and consider
posting it to the agency's website or any centralized Federal Government
site for providing notice of or coordinating Tribal consultations;
(iii) provide notice of at least 30 days to the Tribe or Tribes of any
planned consultations, except as provided in subsection (c) of this
section;
(iv) provide appropriate, available information on the subject of
consultation including, where consistent with applicable law, a proposed
agenda,
[[Page 74481]]
framing paper, and other relevant documents to assist in the consultation
process; and
(v) allow for a written comment period following the consultation of at
least 30 days, except as provided in subsection (c) of this section.
(b) The head of each agency shall ensure that
agency officials responsible for sending invitations to
consult to interested or potentially affected Tribal
governments use available tools, databases, and agency
documentation, as well as communicate with agency
representatives who may be knowledgeable about those
Tribes and the location(s) affected by the policy with
Tribal implications, to ensure their invitation efforts
are appropriately inclusive. Such efforts should
account for the fact that Tribes may have connections
or legally protected rights to locations and resources
beyond their current Tribal lands and Tribal government
offices such as off-reservation fishing, hunting,
gathering, or other rights.
(c) If there are time constraints such that 30
days' notice of consultation is not possible, or that
the post-consultation written comment period described
in subsection (a)(v) of this section must be shorter
than 30 days, the notice of consultation should include
information as to why the standard notice or written
comment period cannot be provided. Upon the request of
a Tribe, or where it would serve Tribal interests or
fulfill certain trust obligations to Tribal Nations,
agencies should consider adjusting deadlines for notice
of consultations and for accepting written comments.
Sec. 6. Conducting the Consultation. Throughout a
consultation, the head of each agency, or appropriate
representatives, shall recognize and respect Tribal
self-government and sovereignty; identify and consider
Tribal treaty rights, reserved rights, and other
rights; respect and elevate Indigenous Knowledge,
including cultural norms and practices relevant to such
consultations; and meet the responsibilities that arise
from the unique legal relationship between the Federal
Government and Tribal governments. The head of each
agency should ensure that agency representatives with
appropriate expertise and, to the extent practicable,
decision-making authority regarding the proposed policy
are present at the Nation-to-Nation consultation. The
head of each agency should consider conducting the
consultation in a manner that prioritizes participation
of official Tribal government leaders.
Sec. 7. Record of the Consultation. (a) The head of
each agency shall maintain a record of the consultation
process that includes:
(i) a summary of Tribal input received;
(ii) a general explanation of how Tribal input influenced or was
incorporated into the agency action; and
(iii) if relevant, the general reasoning for why Tribal suggestions were
not incorporated into the agency action or why consensus could not be
attained.
(b) The head of each agency shall timely disclose
to the affected Tribe or Tribes the outcome of the
consultation and decisions made as a result of the
consultation. To the extent permitted by applicable
law, the head of each agency shall seek to ensure that
information designated as sensitive by a Tribal
government is not publicly disclosed. Agencies should
obtain advance informed consent from Tribal communities
for the use of sensitive information provided by the
Tribe, and should inform Tribal representatives that
certain Federal laws, including the Freedom of
Information Act, may require disclosure of such
information.
(c) For national and regional consultations, or if
otherwise appropriate, the head of each agency should
also consider publicly posting the record of
consultation to foster ease of reference and use by
other agencies, employees, and processes, and to
minimize burdens on Tribes to provide similar input in
multiple consultations. Decisions regarding whether to
publicly post a record of consultation should be made
with Tribal input.
[[Page 74482]]
(d) The record of consultation does not waive any
privilege or other exception to disclosure pursuant to
the Freedom of Information Act or its implementing
regulations.
Sec. 8. Training. (a) The head of each agency shall
require annual training regarding Tribal consultation
for agency employees who work with Tribal Nations or on
policies with Tribal implications. This training shall
include, at minimum, review of Executive Order 13175,
this memorandum, and any applicable Tribal consultation
policy of the agency.
(b) In addition, the Secretary of the Interior and
the Director of the Office of Personnel Management
(OPM), in consultation with Tribal Nations, shall
establish training modules regarding Tribal
consultation to be available for agency employees who
work with Tribal Nations or on policies with Tribal
implications. These training modules should explain the
concepts of Tribal consultation, the Nation-to-Nation
relationship, and Tribal sovereignty. Agencies may use
these training modules to satisfy the annual training
requirement set forth in subsection (a) of this
section.
(c) Within 180 days of the date of this memorandum,
the Director of OPM, in consultation with the Secretary
of the Interior, shall report to the President on
progress toward establishing training modules regarding
Tribal consultation and shall identify additional
resources or other support necessary to implement this
training.
Sec. 9. Definitions. The terms ``Tribal officials,''
``policies that have Tribal implications,'' and
``agency'' as used in this memorandum are as defined in
Executive Order 13175. The terms ``Tribes'' and
``Tribal Nations'' as used in this memorandum have the
same definition as the term ``Indian Tribe'' as defined
in Executive Order 13175.
Sec. 10. Scope. Nothing in this memorandum shall be
construed to impair or otherwise affect the ability of
heads of agencies to set more specific or more
stringent standards, or to incorporate other best
practices, for conducting Tribal consultation.
Sec. 11. General Provisions. (a) Nothing in this
memorandum shall be construed to impair or otherwise
affect:
(i) the authority granted by law to an executive department or agency, or
the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent
with applicable law and subject to the availability of
appropriations.
(c) This memorandum is not intended to, and does
not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any
party against the United States, its departments,
agencies, or entities, its officers, employees, or
agents, or any other person.
(d) Independent agencies are strongly encouraged to
comply with the provisions of this memorandum.
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(e) The Director of the Office of Management and
Budget is authorized and directed to publish this
memorandum in the Federal Register.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
(Presidential Sig.)
THE WHITE HOUSE,
Washington, November 30, 2022
[FR Doc. 2022-26555
Filed 12-2-22; 11:15 am]
Billing code 3110-01-P
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