CHAPTER 11 EXAMINING THE LEGAL IMPLICATIONS OF GOVERNMENT-TO-GOVERNMENT TRIBAL CONSULTATION AND OFF-RESERVATION DEVELOPMENT

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 11
EXAMINING THE LEGAL IMPLICATIONS OF GOVERNMENT-TO-GOVERNMENT TRIBAL CONSULTATION AND OFF-RESERVATION DEVELOPMENT
Vanessa L. Ray-Hodge
SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL, LLP
Albuquerque, NM
Sarah M. Stevenson
Modrall Sperling
Santa Fe, NM

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VANESSA L. RAY-HODGE is an enrolled member of the Pueblo of Acoma and Partner in the Albuquerque office of Sonosky, Chambers, Sachse, Endreson & Perry, LLP. Prior to rejoining Sonosky, Ms. Ray-Hodge served as the Senior Counselor to Solicitor Hilary Tompkins at the Department of the Interior. At Interior, Ms. Ray-Hodge advised the Solicitor on Indian Affairs issues and was integral in a multitude of decisions. Some of her key efforts included addressing the Supreme Court's decision in Carcieri v. United States, to continue to take land into trust for tribes, culminating in the Solicitor's M-Opinion 37029 (March 12, 2014); participating in settlement of tribal trust lawsuits and working with the Secretary's Trust Reform Commission; advising senior Departmental officials on tribal consultation requirements, economic and natural resources development issues in Indian country including oil and gas operations, and Indian gaming and water rights litigation and settlement issues. Ms. Ray-Hodge represents tribal clients on a wide variety of legal issues, including advising clients on infrastructure development issues that occur both within and outside of Indian country, land into trust, gaming and economic development, treaty rights and water rights, and natural resources issues. She regularly assists tribes in navigating issues related to federal environmental and regulatory compliance statutes and in working with federal agencies at the local and national level. Ms. Ray-Hodge attended Wellesley College graduating in 2000 with a major in Anthropology and went on to Columbia Law School graduating in 2003 with honors as a Harlan Fiske Stone Scholar.

SARAH M. STEVENSON is an associate in the Natural Resources Department and a litigator representing private business and public entities. Her natural resources experience focuses on water law, including water adjudications and inter-state water compact disputes, and Native American law, including natural resource development projects on Native American land, and traditional cultural properties. Sarah has litigated business disputes, and employment and First Amendment cases. Sarah's recent experience includes obtaining a jury verdict as second chair attorney in a federal court employment case and conducting oral argument before the New Mexico Supreme Court in a state-law appeal. She has advised clients developing projects on Native American land on issues regarding indigenous rights, jurisdiction, and contract formation, and provides pro bono services to local families in conjunction with the New Mexico Immigrant Law Center. With a practice that includes cases in federal and state trial and appellate courts, including the United States Supreme Court, she advises and guides clients on a broad range of cases. Sarah attended Scripps College, where she received a B. A. in American Studies, with honors, and a minor in French. After college, Sarah served as a Peace Corps volunteer in Niger. Sarah graduated magna cum laude from Fordham University School of Law, and received a joint J.D./M. A. in International Political Economics and Development from Fordham University Graduate School of Arts and Sciences. While at Fordham, she was chosen as a Crowley Scholar in International Human Rights, participated in the Leitner Human Rights Clinic, and was a research assistant for Professor Russell Pearce. She clerked for the Honorable Patricio M. Serna of the New Mexico Supreme Court from 2009 to 2011. After her clerkship, Sarah returned to her hometown of Albuquerque. Southwest Super Lawyers® has recognized Sarah as a Southwest Rising Star in Appellate practice. She is admitted to practice in New Mexico and New York, and before the U.S. Court of Appeals for the Tenth Circuit, U.S. District Court for the District of New Mexico, and the U.S. District Court for the Northern District of Oklahoma

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The United States has a unique trust responsibility to Indian tribes that is grounded in treaties, executive orders, and federal laws. Federal case law confirms that the trust responsibility includes fiduciary obligations for the management of trust lands and natural resources, including the duties to act with good faith and loyalty. Consistent with this trust duty, past administrations have expressly supported the government-to-government relationship between Indian tribes and the federal government, including generally supporting a policy requiring federal agencies to consult with Indian tribes before taking federal actions that implicate tribal interests.

In 1994, President Clinton issued a Presidential Memorandum on Government-to-Government Relations with Native American Tribal Governments, setting forth the requirement that executive agencies consult with tribal governments before taking action that will affect the tribal governments. 59 Fed. Reg. 22951 (May 4, 1994).¹ Then in 2000, President Clinton went further and issued Executive Order 13175 "in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications."² Executive Order 13175 further requires federal agencies to "meaningfully consult" with Indian tribes prior to issuing any policy or regulation that has a "substantial direct effect[] on one or more Indian tribes." Exec. Order 13175 at § I. President George W. Bush issued a presidential memorandum that recognized and reiterated the importance of government-to-government tribal consultation and Executive Order 13175. Presidential Memorandum, Government-to-Government Relationship with Tribal Government (Sept. 23, 2004). Five years later, President Obama also reaffirmed Executive Order 13175, noting that "meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient." Presidential Memorandum, Tribal Consultation (Nov. 5, 2009).

The notion of tribal consultation is not limited to Presidential pronouncements but is also reflected in specific agency policies, practices, and statutory mandates that may be triggered when a federal agency seeks to take a particular action that implicates tribal interests, such as services provided to Indian tribes, trust resources or trust assets. The tribal consultation requirement can thus be broader than just implicating agency policies or regulatory changes. It can extend to certain agency functions, including personnel actions, or agency actions involving project specific permitting approvals where the project may be located either on or off Indian or tribal lands ("tribal land").³ For example, the National Historic Preservation Act of 1966 ("NHPA") was the first federal statute to require consultation on historic properties--although it did not specifically extend that requirement to tribal lands until 1992. The NHPA imposes a mandatory requirement on federal agencies to consult with Native American tribes and Native Hawaiian organizations when an undertaking for which the agency will issue a permit or otherwise play a role in may have an effect on land of which a tribe attaches cultural, spiritual, or religious significance. Government-to-government consultation, regardless of the location of the undertaking, must be reasonable and made in good faith to identify Native American tribes or

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Native Hawaiian organizations with whom consultation must be conducted, to identify properties of historic, religious, spiritual, or cultural importance within the designated area, and to consider and mitigate effects to such properties caused by the undertaking.

In the wake of the historic #NODAPL movement involving the Standing Rock Sioux Tribe, tribal consultation and its application and implementation under various policies or federal statutes came to the forefront and has become the subject of a fair amount of discussion by Indian tribes and other stakeholders. Tribal consultation impacts not only federal agencies and Indian tribes, but those individuals or entities that need various federal approvals and practitioners must understand tribal consultation and its implications. But what does "meaningful" tribal consultation actually mean and is it really important to energy or natural resource development projects, e.g., what, if any, remedies do tribes have to enforce consultation under these federal policies and statutes?

This paper first examines and discusses the scope of the general tribal consultation requirement under Executive Orders and federal agency policies by reviewing cases in which tribes have sought to enforce these policies. This paper then looks at and analyzes the tribal consultation policy under the NHPA, focusing on the contours of the good faith effort to conduct government-to-government consultation off of tribal lands as considered by recent court decisions. The paper also reviews a specific aspect of good faith efforts to conduct government-to-government consultations: the confidentiality afforded materials provided by Native American nations to federal agencies. Lastly, this paper provides some summary thoughts and recommendations to consider when tribal consultation is implicated as part of the federal approval process.

I. Federal Agencies' Obligation to Engage in Government-to-Government Consultation Under Tribal Consultation Policies.

Various Executive Orders and Presidential memorandum supporting tribal consultation are often raised as an independent basis for tribal consultation, but practitioners must be careful about how these are used in...