Title II — Consultation Procedure

Scope— Agencies shall have an accountable process to ensure meaningful and timely input by Indian tribes and tribal officials prior to undertaking any activity that may have substantial direct impacts on the lands or interests of one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Consultation with Indian tribes shall occur for all activities that would affect any part of any Federal land that shares a border with Indian country as defined in section 1151 of title 18, United States Code, but is not limited to activities on such lands.

Multi-Agency activities— In the case of agency-drafted proposed legislation, the drafting agency, and any other agency that will be implementing the legislation, shall each be considered involved in the activity. If more than one agency is involved in an activity, some or all of the agencies may designate a lead agency, which shall fulfill their collective consultation responsibilities. Those agencies that do not designate a lead agency shall remain individually responsible for their consultation responsibilities under this Act.

Limitation— Nothing in this Act shall exempt an agency from additional consultation required under any other law or from taking any other consultative actions as required by any other law or agency prerogative in addition to those required by this Act. Nor does it preclude an agency from additional consultation that complies with agency regulations for consultation, advances agency consultation practices, or supports agency efforts to build or strengthen government-to-government relationships with Indian tribes. The requirements of this Act supplement, but do not replace, other consultation requirements such as the Federal Energy Regulatory Commission regulations for license applicants.

Planning document— As early as possible in the planning stage of an activity, the agency shall compile a draft of the scope of the project, including any geographic areas important to Indian tribes that might be affected and any other anticipated tribal impacts. The agency shall make a good faith effort to include areas that might reasonably be expected to contain sites important to Indian tribes whether or not such sites are explicitly known to the agency.

Tribal consultation partners— The agency shall consult with all Indian tribes that may be impacted by an activity. When appropriate, the agency shall consult with regional and national tribal organizations such as the National Congress of American Indians, the National Tribal Environmental Council, the Native American Fish and Wildlife Society, the United South and Eastern Tribes, the National Association of Tribal Historic Preservation Officers, the Michigan Anishinaabek Cultural Preservation and Repatriation Alliance, and the Affiliated Tribes of Northwest Indians, to determine which Indian tribes may be affected by the activity. Under no circumstance shall the agency treat consultation with intertribal organizations as a substitute for consultation with each affected Indian tribe, unless the Indian tribes comprising such an organization agree that consultation should proceed through the intertribal organization. The agency shall remain responsible for its consultation responsibilities under this Act to any affected Indian tribes not participating in such an agreement. Other resources for identifying Indian tribes that need to be consulted include officials, such as cultural resource specialists, from other agencies who have consulted with Indian tribes in the region in the past, ethnographies, local histories, local university experts, oral accounts, the National Park Service’s Native American Consultation Database, MAPS: GIS Windows on Native Lands, Current Places, and History, and the Library of Congress Indian Land Cessions document Web site.

Initial contact with consultation partners— The agency—

Consultation meeting arrangements— The agency shall negotiate with stakeholder representatives to determine the time, place, agenda, travel funds, facilitator, format, and goals of a consultation meeting. The agency shall make a good faith effort to engage in consultation, keeping thorough documentation of all steps taken to contact and engage the Indian tribe in consultation. If, after a good faith effort, the agency fails to engage the Indian tribal government, it may terminate its scoping stage consultation efforts by providing all consultation partners with a written notification and explanation for its decision, signed by the head of the agency, and proceed to the decision stage procedures described in section 204.

Consultation meeting format— A consultation meeting shall begin with confirmation of the format, facilitator, and agenda, with adequate time scheduled for introductions and for interaction throughout the meeting among participants. Whenever possible, tribal stakeholders shall be brought into the ongoing planning process directly by forming ad hoc workgroups including tribal leaders or their designees and, if appropriate, initiating a process for consensual development of regulations, such as negotiated rulemaking. The meeting shall conclude with planning for the next meeting, if necessary.

Termination of scoping stage consultation without a memorandum of agreement— The agency shall make a good faith effort through sustained interaction and collaboration to reach a consensus resulting in a memorandum of agreement. If, after a good faith effort, the agency determines that further consultation will not be productive, it may terminate consultation by providing all consultation partners with a written notification and explanation for its decision, signed by the head of the agency, and proceed to the decision stage procedures described in section 204. The Indian tribal government may at any point decide to terminate consultation. In such case, the agency shall provide the Indian tribal government with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that will become part of the agency’s official consultation record. Any nongovernmental consultation partners may decide to withdraw from consultation at any time. In such case, the agency shall provide the withdrawing nongovernmental consultation partner with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that will become part of the agency’s official consultation record.

Proposal document— The agency shall compile a document consisting of the plan for the activity, its anticipated tribal impacts, any memorandum of agreement, and any written statements made by consulting partners during the scoping stage as described in section 203. The agency shall include sufficient supporting documentation to the extent permitted by law and within available funds to enable any reviewing parties to understand its basis. The agency may use documentation prepared to comply with other laws to fulfill the requirements of this provision to the extent that such documentation is sufficiently pertinent to and focused on the relevant issues as to allow reasonable ease of review. The agency shall mail and e-mail, if possible, a copy of the Proposal Document to all consultation partners, including any who withdrew from the process. At a minimum, the document shall go to the tribal leader and all members of any elected tribal governing body. The agency shall follow up with phone calls to confirm receipt of the document. After these steps have been completed, the Proposal Document shall be published in the Federal Register, subject to the provisions of section 207.

Public comment period— The agency shall provide a period of not less than 90 days after publication in the Federal Register for comments on the Proposal Document. A 30-day extension shall be granted upon request by any member of the Indian tribe.

Preliminary decision— After expiration of the comment period, the agency shall prepare a preliminary decision letter, signed by the head of the agency. The letter shall state the decision to proceed or not proceed with the activity, the decision’s rationale, any changes in the proposal made in response to comments, and any points where the decision conflicts with the expressed requests of any of the consultation partners. It shall particularly address why the decision was made to disregard any such requests. The agency shall mail and e-mail, if possible, a copy of the letter to all consultation partners, including any who withdrew from the process. At a minimum, the letter shall go to the tribal leader and all members of the tribal governing body. The agency shall follow up with phone calls to confirm receipt of the letter.

Final decision— The agency shall provide a 60-day period following the issuance of the preliminary decision letter for response by the consultation partners. Thereafter, the agency shall notify in writing, signed by the head of the agency, the consultation partners, including any who withdrew from the process, of the agency’s final decision.

Official consultation record— The agency shall keep an official consultation record that allows accurate tracking of the process so that agencies and consulting parties can correct any errors or omissions, and provides an official record of the process that can be referred to in any litigation that may arise. The agency shall document all efforts to initiate consultation as well as documenting the process once it has begun. Such documentation, including, but not limited to, correspondence, telephone logs, and e-mails, shall be included in the agency’s official consultation record. The agency shall also keep notes so that the consultation record documents the content of consultation meetings, site visits, and phone calls in addition to information about dates and who participated.

Payment for tribal documentation work— If the agency asks an Indian tribe for specific information or documentation regarding the location, nature, and condition of individual sites, to conduct a survey, or in any way fulfill the duties of the agency in a role similar to that of a consultant or contractor, then the agency must pay for such services, if so requested by the Indian tribe, as it would for any private consultant or contractor.

Report to congress— Each agency shall on a biennial basis submit to Congress a report on its consultation activities.