When the federal government announced in September that it would be withdrawing permits issued for the Dakota Access Pipeline, it was a huge win for Indian tribes and environmentalists who were protesting the construction of the pipeline across sacred sites and sensitive ecosystems. But the government's announcement also called for a revision to federal policy as it concerns tribal consultation. Specifically, the government requested feedback and dialogue on two questions:
(1) Within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights?
(2) Should new legislation be proposed to Congress to alter that statutory framework and promote those goals?
These are fairly open-ended questions, and its fair to wonder if the administration will have enough time to consider responses, formulate a policy response, and implement it in time for this process to have a meaningful impact before the administration change-over in January. Nonetheless, both questions merit some thought. I'll tackle the first question in this post.
Before thinking about how consultation can be improved within the existing framework, we need to know what the existing framework is. There are several statutes that require consultation before proceeding with certain government actions. Here are the most prominent:
The National Historic Preservation Act (which was the consultation statute at issue when the Standing Rock Sioux sued to block the Dakota pipeline from moving forward) requires consultation with tribes that attach religious and cultural significance with certain lands and properties.
The Archaeological Resources Protection Act requires consultation before the government can permit archaeological excavation on tribal lands.
The American Indian Religious Freedom Act provides tribes with access to sacred sites and objects, and allows them to conduct traditional rites.
The Native American Graves Protection and Repatriation Act requires consultation with tribes regarding the treatment and disposition of human remains and sacred objects.
In addition to these statutes, federal agencies are bound by Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments." The Executive Order was established in 2000 "in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications." In 2009, President Obama directed federal agencies to develop a plan of action to implement the directives of EO 13175. The Department of the Interior's plan can be seen here, for example.
Many of these consultation statutes, regulations, and policies are fairly open-minded and receptive to consultation best practices. The Department of the Interior's policy, for example, calls for consultation reporting and training, regular meetings with tribes, the appointment of tribal officers within the agency and sub-agencies, and opportunities for tribal consultations and dialogue throughout the administrative rule-making process. Other agencies have similar policies and procedures (see the Department of Transportation's policy here).
So it seems there are numerous avenues for tribal consultation on federal agency actions. There are a number of statutory directives, as well as tailored tribal consultation plans for each agency. Why then, is tribal consultation still challenging?
One reason is that there is ambiguity with respect to which actions "trigger" consultation. It is obvious that the US Army Corps of Engineers will consult with a tribe if a dam the Corps is operating will be modified in a way that will flood tribal land. But what if water levels in a reservoir operated by the Corps are modified in a way that may negatively impact salmon, a species fished by a local tribe? Would that type of activity trigger consultation? It's not always clear. And because agency rule-making or government operations often require multiple layers of bureaucracy and approvals, agencies may be tempted to err on the side of expediency rather than consultation.
An additional challenge is that there are no uniform standards for what constitutes satisfactory consultation. Often consultation may consist of an invitation to submit comments on a proposed agency action. Hardly the round-table dialogue many envision when they think of consultation. The agencies have to balance their duty to consult with the demands on their time and resources; they seek to satisfy their obligations while moving the ball forward.
Finally, the requirement to consult typically does not carry with it any obligations to undertake any particular final decision or agency action. For example, while the National Historic Preservation Act requires extensive consultation, ultimately it does not mandate that the permitting agency in question take any particular measures to protect historic resources.
When the Standing Rock Sioux Tribe sued to block construction of the Dakota Access Pipeline, it claimed that the Army Corps of Engineers had not fulfilled its National Historic Preservation Act obligations because the Corps had not executed a "programmatic agreement" with tribal representatives. A programmatic agreement is an agreement negotiated with the tribes that governs an agency's actions over a particular activity, so as to reduce impacts on sensitive resources. The District Court's opinion noted that the Corps had executed such agreements in the past, but its failure to execute one for the Dakota Access Pipeline was not a problem because programmatic agreements are not mandatory.
These issues are not easily remedied, but lessons learned from the Dakota Access Pipeline and other cases, as well as similar provisions and procedural requirements of other statutes, can shed light on some potential fixes to federal-tribal consultation requirements. My thoughts on those fixes are forthcoming.