Tribal Consultation Policies Still Lacking Amid Challenges of Trump Era

April 23, 2019
In The News

Nearly two decades after the first executive order on tribal consultation, the federal government is still struggling to meet their trust and treaty responsibilities, according to a new report.

Based on interviews with officials from 57 tribes, the Government Accountability Officefound serious lapses in outreach. Infrastructure projects often move forward with little to no input from Indian Country, or with inadequate explanations, the report said.

In one instance, a known tribal burial site in South Dakota was disturbed by a project approved by the government, according to the GAO. In another case, agency officials deemed their consultation efforts a success even though the injection well they approved was opposed by the tribes they contacted.

And one particular agency -- the one that approved the controversial Dakota Access Pipeline over Indian Country's objections -- has been working under procedures that haven't been approved by the Advisory Council on Historic Preservation. The situation at the U.S. Army Corps of Engineers has gone unresolved for more than two decades and, as a result, tribal input regarding their cultural sites has been limited, the report stated.

"ACHP documents we reviewed identified several inconsistencies between the Corps procedures and ACHP regulations, including that the Corps procedures (1) defined the geographic area to be analyzed narrowly, (2) improperly assigned the Corps’ analytical responsibilities to third parties, and (3) limited opportunities for consultation with tribes and others," the GAO wrote in the report, which was released on Friday.

Such conclusions come as little surprise to tribes, their advocates and key members of Congress. Although a presidential executive order in 2000 required federal agencies to develop and implement consultation policies, critics point out they are inconsistent and largely unenforceable in the courts.

"The United States has a long history of enacting policies or authorizing infrastructure development projects over the objections of tribes," Vanessa Ray-Hodge, an attorneyand citizen of the Pueblo of Acoma, told the House Subcommittee for Indigenous Peoples of the United States at a hearing earlier this month. "This has often resulted in the destruction of tribal communities and culture."

"Tribal consultation is implemented differently by each executive department and the sad reality -- especially now -- is that tribal consultation as just a box to check, or completely ignored," she added.

In hopes of changing the situation, Rep. Raúl Grijalva (D-Arizona), who was one of the lawmakers who requested the GAO study, is circulating a draft discussion version of the Requirements, Expectations, and Standard Procedures for Executive Consultation with Tribes Act, also known as the RESPECT Act. Tribes would be able to hold federal agencies accountable for failing to engage in "meaningful" consultation under the proposed measure.

"The RESPECT Act is a step on that road to partnership, cooperation, and respect between sovereigns," Matthew L.M. Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians who serves as the director of the Indigenous Law and Policy Center at Michigan State University College of Law, said in testimony on April 3.

The current administration did not send a witness to the hearing but its record on tribal consultation has been spotty. Unlike his Republican and Democratic predecessors, President Donald Trump has not reaffirmed the 2000 policy and instead has taken steps widely seen as an attack on the government's trust and treaty obligations.

Whether it was approvals of the Dakota Access Pipeline and the Keystone XL Pipeline, an ongoing reorganization of the Department of the Interior, a proposed wall along the U.S. border that runs through tribal nations or the reduction of the boundaries of the Bears Ears National Monument, tribes feel their concerns are being ignored in the Trump era.

“Last month, three of the five leaders of the Bears Ears Inter-Tribal Coalition appeared before this committee to tell us that they feel they were not heard during the president’s illegal alteration of the Bears Ears National Monument," Rep. Deb Haaland(D-New Mexico), who is one of the first two Native women in Congress, said at ahearing last month.

"They received one brief meeting with the Secretary, during which he ignored many of their concerns, while special interests received unfettered access to the process," she added, referring to former Secretary Ryan Zinke, who resigned from the Trump administration after facing questions about his dealings with tribes.

When asked whether the process satisfied Interior's tribal consultation policy, an official from the department couldn't answer.

"I was not involved in any monument-related discussions so I'm not really qualified to comment on that," said Scott Cameron, the Principal Deputy Assistant Secretary for Policy, Management, and Budget.

The GAO conducted its study of 21 federal agencies between January 2017 to March 2019, so all of the work occurred in the Trump era. Tribes were interviewed throughout 2017 and 2018 and site visits were conducted in Nebraska, South Dakota and Oregon in from July through September 2017, according to the report.

"For nearly 20 years, the federal government has recognized by Executive Order 13175 the need for such consultation and to collaborate with tribal leaders whenever federal policies affect them," said Sen. Tom Udall (D-New Mexico), who requested the study in his role as the vice chairman of the Senate Committee on Indian Affairs. "Yet the GAO report confirms what is well known in Indian Country: too often, we are failing to meet our responsibilities to Native communities."