Consulting with Tribes as Part of Archival Development
Background
Beginning with the 1831 decision of Chief Justice John Marshall in Cherokee Nation v. Georgia, relationship between the United States (U.S.) federal government and the U.S. Indian tribes had been defined as "the trust relationship." In the context of legal and political relationship between the government and the tribes, the trusteeship doctrine entails the government to take on a responsibility of insuring the welfare of the tribes. During the 19th and early 20th century the trust relationship was defined as that of a “guardian” to a “ward,” where the tribes, characterized as “domestic dependent nations” were to cede their rights to the government as the entities unable to conduct internal and external affairs on their own.After the 1831 the doctrine was further explicated in the series of subsequent legal decisions, which, as history testifies, justified enforced ceding of tribal land and resources to the settlers, and the assimilation policies up to 1934. These deeds conducted as a part of treaties and treaty-like rights placed upon the federal government a responsibility to safeguard the tribal populations, their assets, and their treaty reserved rights, as a common law trustee. With the social and political changes in the U.S. society, the approach to the duty of protecting the tribes underwent substantive changes visible in the way in which the federal-tribal relationship is defined and dealt with today.
In the contemporary settings, the trust responsibility of the federal government to the Indian tribes entails a set of duties generally specified as falling within the three categories: 1) provision of services to tribal members, 2) protection of tribal sovereignty, and 3) protection of tribal resources. One of the essential procedures to be implemented as a part of a service and/or a project that involves working with the tribe, and/or on the territory of the tribe, is an obligation to consult the tribe on the matters relevant to the wellbeing of the people, tribal lands and resources.
An essential part of the federal-tribal relationship remains the right of the tribes to be consulted on all the projects and services that are to impact the tribal members. The development of this right has been an ongoing process, as documented and specified in the following major instruments (for the complete list of the policies consult Policies and Orders):
- 1972 “Guidelines for Consultation with Tribal Groups on Personnel Management Within the Bureau of Indian Affairs.”
- 1975 “Indian Self-Determination and Education Assistance Act.”
- 1978 Education Amendments (Title XI, on Indian education).
- 1979 “Archeological Resources Protection Act.”
- 1990 “Native American Graves Protection and Repatriation Act.”
- 1992 Amendments to the “National Historic Preservation Act.”
- 1994 Presidential memorandum Government-to-Government relations with Native American Tribal
Governments (Apr. 29, 1994), 59 Fed. Reg. 22951 (May 4, 1994).
- 1998 Executive Order No. 13096 – American Indian and Alaska Native Education, 63 Fed. Reg. 4268 (August 6, 1998).
- 2000 Executive Order No. 13175 – Consultation and Coordination with Indian Tribal Government, 65 Fed. Reg. 67249 (Nov. 6, 2000).
- 2004 Presidential memorandum for the Heads of Executive Departments and Agencies – Government-to-Government Relationship with Tribal Governments (September 23, 2004).
- 2009 Presidential memorandum for the Heads of Executive Departments and Agencies—Tribal Consultation (November 5, 2009).
The duty to consult with the tribes on the matters that significantly or in a specific/unique way may affect the individuals inhabiting the tribes is defined generally as a set of activities aimed at obtaining meaningful, timely and informed impute from the tribal members. While the duty is codified in the number of statues, each federal agency interprets the legal requirements differently. Diverse professional activities, that agencies perform, lead to different interpretations of the consultation processes; currently no unified set of consultation components, that define in precise manner ways in which consultation is to be conducted across the agencies, exists. Substantive constraints further impede consultative practices to become a well organized and truly consultative two-way dialog; at times a consultation becomes a mere processes of formal documentation/information gathering vs. meaningful negotiations in which tribal members have an equal and a meaningful voice. In addition, most provisions are limited to the activities and services in the area of protecting cultural and/or religious practices and sites. This factor adds to the difficulties of enforcing consultation provisions to the all areas of the government trust responsibilities.
Why consult?
Consultation consists of a set of institutionalized procedures that foster open communication and engaged interaction between the tribe and the outside entity that is to work with the tribe and/or on the tribal territory. While consultation is considered an obligation for the institution interested to work with the tribe, the key to a meaningful consultation process is to see its significance as an opportunity to meet interests of all. It is also a primary mechanism that insures that the process of working with the tribe is efficient. The consultation is an essential procedure in determining what exactly is needed by the tribe and to meet these needs accordingly with no imposition of outside values and practices upon the tribal social and cultural settings, which in certain cases may cause violation of tribal sovereignty.
How and whom to consult?
Consultation as it is defined in the federal instruments entails “consultation and collaboration” as in the “Executive Order 13175. The 2009 Obama Memorandum requires “meaningful dialogue between Federal officials and tribal officials.” At the same time nearly all policies and statutes require a “government-to-government” way of conducting consultative processes. This means that a consultation must occur between the officials of relatively similar rank and of high social standings within a respective community. A lack of an explicit set of terms in the regulatory instruments, however, at times causes consultative processes to become a mere formality, conducted between private contractors, or occurring between a tribal member and a lower standing official who may not be in a position to make important decisions on behalf of the agency. These areas demand further attention and future work.
As a rule, a consultation begins with an agency official reviewing all known information about sites/assets as a way to identify the tribes and tribal members within the tribes with a potential interest in the proposed practice. It is essential to begin consultative processes early. Otherwise it might be difficult to insure that the tribal members are involved into the project from the moment of planning certain services and/or conducting certain practices. Many projects commenced prior to consulting with the tribes led to difficulties related to the ability of the tribal members to make timely and meaningful decisions related to the project. Having constructed a list of the tribes and tribal members potentially interested in the project, an agent official is to mail to the tribal officials the project proposal/plan of action, supporting information and a request to consult. In certain areas certain designated people are to be contacted (see Resources for Working with Tribes for more information). Many of the new policies provide between 30 and 60 days’ as a time period as a way to notify the tribe and to schedule a consultative session. When the tribal members respond, a consultation is scheduled as, at best, the face-to-face meeting. At times it might be conducted over the phone. The consultation remains an ongoing process of continuous communication between an agency and tribal members. While conducted between designated people, a consultation is essentially a way to engage the whole tribe in a dialog. That is, the general public has the right to review and comment on the proposal/project, where records of the meetings/discussions should be open and available to all members of the tribe. Agencies are to gather and respond to the tribal suggestions, and the tribe must have a right to refuse services. Consultation remains an ongoing process, and at times a way toward continuing relationship with the tribe after a project is completed.
Despite all the difficulties consultation is considered a sound management policy and a proper way to conduct relationships with the tribal commuities in the United States.
In the contemporary settings, the trust responsibility of the federal government to the Indian tribes entails a set of duties generally specified as falling within the three categories: 1) provision of services to tribal members, 2) protection of tribal sovereignty, and 3) protection of tribal resources. One of the essential procedures to be implemented as a part of a service and/or a project that involves working with the tribe, and/or on the territory of the tribe, is an obligation to consult the tribe on the matters relevant to the wellbeing of the people, tribal lands and resources.
Consultation
Legal requirementsAn essential part of the federal-tribal relationship remains the right of the tribes to be consulted on all the projects and services that are to impact the tribal members. The development of this right has been an ongoing process, as documented and specified in the following major instruments (for the complete list of the policies consult Policies and Orders):
- 1972 “Guidelines for Consultation with Tribal Groups on Personnel Management Within the Bureau of Indian Affairs.”
- 1975 “Indian Self-Determination and Education Assistance Act.”
- 1978 Education Amendments (Title XI, on Indian education).
- 1979 “Archeological Resources Protection Act.”
- 1990 “Native American Graves Protection and Repatriation Act.”
- 1992 Amendments to the “National Historic Preservation Act.”
- 1994 Presidential memorandum Government-to-Government relations with Native American Tribal
Governments (Apr. 29, 1994), 59 Fed. Reg. 22951 (May 4, 1994).
- 1998 Executive Order No. 13096 – American Indian and Alaska Native Education, 63 Fed. Reg. 4268 (August 6, 1998).
- 2000 Executive Order No. 13175 – Consultation and Coordination with Indian Tribal Government, 65 Fed. Reg. 67249 (Nov. 6, 2000).
- 2004 Presidential memorandum for the Heads of Executive Departments and Agencies – Government-to-Government Relationship with Tribal Governments (September 23, 2004).
- 2009 Presidential memorandum for the Heads of Executive Departments and Agencies—Tribal Consultation (November 5, 2009).
The duty to consult with the tribes on the matters that significantly or in a specific/unique way may affect the individuals inhabiting the tribes is defined generally as a set of activities aimed at obtaining meaningful, timely and informed impute from the tribal members. While the duty is codified in the number of statues, each federal agency interprets the legal requirements differently. Diverse professional activities, that agencies perform, lead to different interpretations of the consultation processes; currently no unified set of consultation components, that define in precise manner ways in which consultation is to be conducted across the agencies, exists. Substantive constraints further impede consultative practices to become a well organized and truly consultative two-way dialog; at times a consultation becomes a mere processes of formal documentation/information gathering vs. meaningful negotiations in which tribal members have an equal and a meaningful voice. In addition, most provisions are limited to the activities and services in the area of protecting cultural and/or religious practices and sites. This factor adds to the difficulties of enforcing consultation provisions to the all areas of the government trust responsibilities.
Why consult?
Consultation consists of a set of institutionalized procedures that foster open communication and engaged interaction between the tribe and the outside entity that is to work with the tribe and/or on the tribal territory. While consultation is considered an obligation for the institution interested to work with the tribe, the key to a meaningful consultation process is to see its significance as an opportunity to meet interests of all. It is also a primary mechanism that insures that the process of working with the tribe is efficient. The consultation is an essential procedure in determining what exactly is needed by the tribe and to meet these needs accordingly with no imposition of outside values and practices upon the tribal social and cultural settings, which in certain cases may cause violation of tribal sovereignty.
How and whom to consult?
Consultation as it is defined in the federal instruments entails “consultation and collaboration” as in the “Executive Order 13175. The 2009 Obama Memorandum requires “meaningful dialogue between Federal officials and tribal officials.” At the same time nearly all policies and statutes require a “government-to-government” way of conducting consultative processes. This means that a consultation must occur between the officials of relatively similar rank and of high social standings within a respective community. A lack of an explicit set of terms in the regulatory instruments, however, at times causes consultative processes to become a mere formality, conducted between private contractors, or occurring between a tribal member and a lower standing official who may not be in a position to make important decisions on behalf of the agency. These areas demand further attention and future work.
As a rule, a consultation begins with an agency official reviewing all known information about sites/assets as a way to identify the tribes and tribal members within the tribes with a potential interest in the proposed practice. It is essential to begin consultative processes early. Otherwise it might be difficult to insure that the tribal members are involved into the project from the moment of planning certain services and/or conducting certain practices. Many projects commenced prior to consulting with the tribes led to difficulties related to the ability of the tribal members to make timely and meaningful decisions related to the project. Having constructed a list of the tribes and tribal members potentially interested in the project, an agent official is to mail to the tribal officials the project proposal/plan of action, supporting information and a request to consult. In certain areas certain designated people are to be contacted (see Resources for Working with Tribes for more information). Many of the new policies provide between 30 and 60 days’ as a time period as a way to notify the tribe and to schedule a consultative session. When the tribal members respond, a consultation is scheduled as, at best, the face-to-face meeting. At times it might be conducted over the phone. The consultation remains an ongoing process of continuous communication between an agency and tribal members. While conducted between designated people, a consultation is essentially a way to engage the whole tribe in a dialog. That is, the general public has the right to review and comment on the proposal/project, where records of the meetings/discussions should be open and available to all members of the tribe. Agencies are to gather and respond to the tribal suggestions, and the tribe must have a right to refuse services. Consultation remains an ongoing process, and at times a way toward continuing relationship with the tribe after a project is completed.
Despite all the difficulties consultation is considered a sound management policy and a proper way to conduct relationships with the tribal commuities in the United States.
