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common ground

Speaking Nation to Nation
Summer/Fall 1997, vol. 2(3/4)

Online Archive

*  The Meaning of Consultation

(photo) Yankton Sioux delegation arrives at the White House, 1905.

"[Glacier Bay National Park] was founded in the spirit of John Muir, with a strong tradition of scientific inquiry [and] an historic focus looking only as far back as the arrival of European explorers. Perhaps it was this short-sightedness that led to many of the conflicts to come."

Wayne Howell

by C. Timothy McKeown

Since 1990, a growing number of statutes and executive orders specifically require federal consultation with Indian tribes. Most requirements apply to particular departments or agencies, with the Department of the Interior having to consult most often. Only two statutes—the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act, as amended in 1992—apply to most agencies. In addition, Executive Order 12875 calls for regular consultation with tribal governments and Executive Order 13007 requires consultation with Indian tribes and religious representatives on the access, use, and protection of sacred sites.

None of these, however, explicitly define consultation. The common meaning is to ask advice of someone. A person may consult with a spouse before making reservations for a family trip; with an accountant before filing a tax return; or with an attorney before signing a contract. These individuals are not selected randomly: the spouse is familiar with the affairs of the family, the accountant knows the tax code, the attorney is expert in contract law. Each is in a position to inform the decision.

Consultation has as much to do with obtaining information as providing it. The spouse may remember an event that conflicts with the trip. The accountant might recall a recent IRS ruling. The attorney may remember a precedent-setting decision. Consultation is always a dialogue.

The information obtained is given special, though not necessarily disposive, consideration. The spouse might refuse to go on the trip, the accountant may spot inconsistencies in the return, the attorney might flag risks in the contract, and the person could still go ahead, fully informed of the potential ramifications.

Consultation can be contrasted with two other forms of communication: notification and obtaining consent. Notification focuses on providing information, so potentially affected parties have the chance to respond to a pending action. But parties are often notified after basic decisions have already been made, and there is generally no formal follow-up. The Navajo Nation made the distinction very clear in a 1993 memorandum: "The majority of agencies with which we are familiar do not distinguish between ‘notification' and ‘consultation,' and consider the former as adequate to meet their mandates for the latter. This neither meets the letter or spirit of the consultation requirements of the laws mandating consultation" (BLM 1993).

Obtaining consent differs from consultation in that the information obtained from the consulting party is disposive. Refusal to consent is sufficient to stop a proposed plan. But the process is usually similar.

What Does the Law Require?

Consultation is founded on the government-to-government relationship between the United States and Indian tribes established by the Constitution, treaties, statutes, court decisions, and policy. This relationship has evolved to ensure tribes sovereignty over their lands and a voice in federal management. This legacy makes consultation similar in many ways to diplomacy between nations, which President Clinton recently underscored by requiring all executive departments and agencies to consult with federally recognized tribal governments "in a knowledgeable, sensitive manner respectful to tribal sovereignty" (Executive Memorandum, April 29, 1994).

Federal consultation is driven by specific statutes, regulations, and policies.

The Native American Graves Protection and Repatriation Act requires consultation with Indian tribes, Native Hawaiian organizations, lineal descendants, and traditional Native American religious leaders in order to provide for the disposition or repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony in an agency's possession or under its control.

The National Historic Preservation Act requires consultation with Indian tribes, Native Hawaiian organizations, and the interested public regarding means by which adverse effects on any National Register-eligible district, site, building, structure, or object will be considered.

Executive Orders and Executive Memoranda require all executive departments and agencies to consult prior to taking actions that affect federally recognized tribal governments. Such actions often include activities conducted under the National Environment Policy Act, the American Indian Religious Freedom Act, the Archaeological Resources Protection Act, and the Federal Land Policy and Management Act.

Several laws constrain how consultation is conducted and the information from it handled.

The Federal Advisory Committee Act restricts the process of obtaining advice from non-federal groups. Such "advisory committees," chartered by an agency head, must meet in public. The act does not prohibit soliciting advice from individuals at a private meeting, but they cannot submit their views as part of a group consensus [41 CFR 101-6.104 (i)].

In part because public forums are sometimes inappropriate for sensitive issues, Alice Rivlin, then director of OMB, exempted "any meetings called for any purpose relating to intergovernmental responsibilities or administration" . This means that private meetings strictly between federal and elected tribal officials are permitted [2 U.S.C. 1534 (b)].

The Freedom of Information Act provides any person the right to access agency records, except to the extent that they are protected from disclosure by one of nine exemptions or by one of three special law-enforcement-record exclusions. Other statutes can also block disclosure. The National Historic Preservation Act [16 U.S.C. 470w-3] stipulates the withholding of information about the location, character, or ownership of a district, site, building, structure, or object eligible for inclusion in the National Register of Historic Places. The Archaeological Resources Protection Act [16 U.S.C. 470Hh] prevents the disclosure of information on the nature and location of archeological resources that require a federal permit for excavation or removal (with some exceptions).

Consultation provides an invaluable means of obtaining expert advice, ideas, and diverse opinions from Native American constituents regarding the control and appropriate treatment of federal resources. Failure to consult, however, can significantly delay a project, either through court injunction or public pressure.

References

Bureau of Land Management et al., Federal Oversight Hearing on Native American Legislation, Washington, DC, 1993.

Navajo Nation, Comment in BLM, 1993.

Rivlin, Alice M., Guidelines and Instructions for Implementing Section 204, "State, Local, and Tribal Government Input" (of Title II of Public Law 104-4), Federal Register, vol. 60, no. 189 (September 29, 1995), Washington, DC.

Executive Orders and Memoranda
Clinton, William J., Enhancing the Intergovernmental Partnership, Executive Order 12875 of October 26, 1993 [58 FR 58093], Washington, DC.

__________, Government-to-Government Relations with Native American Tribal Governments: Memorandum for the Heads of Executive Departments and Agencies, Memorandum of April 29, 1994 [59 FR 22951], Washington, DC.

__________, Indian Sacred Sites, Executive Order 13007 of May 24, 1996 [61 FR 26771], Washington, DC.

U.S. Code
National Historic Preservation Act, 16 U.S.C. 470 et seq., 1966.

National Environmental Policy Act, 42 U.S.C. 4321, 4331-2, 1969.

Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501.

American Indian Religious Freedom Act, 42 U.S.C. 1996, 1973.

Archaeological Resources Protection Act, 16 U.S.C. 470aa et seq., 1974.

Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et seq., 1990.

Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701, 1991.

Federal Regulations
Federal Advisory Committee Act, 41 CFR 101-6.104 (i).

Native American Graves Protection and Repatriation Act, 43 CFR 10, December 4, 1995.

MJB/EJL