September 13, 2016

Administration to Engage Tribes on How to Improve Government-to-Government Consultation for Infrastructure Development Projects

Holland & Knight Native American Law Blog
James T. Meggesto | Kayla Gebeck Carroll

In a statement issued on September 9, the Obama Administration announced it is taking steps to examine whether the current legal framework regarding tribal consultation is enough to protect tribal government interests regarding the economic, cultural and social vitality of tribal members by hosting formal government-to-government consultations to address two key questions:

  1. Within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions, as well as the protection of tribal lands, resources and treaty rights?
  2. Should new legislation be proposed to Congress to alter that statutory framework and promote those goals?

To read the announcement, please view the joint statement from the Department of Justice, The Department of the Army and the Department of the Interior regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers.

In an article in Law360, Holland & Knight Partner James Meggesto explained why improving existing consultation procedures is important. If tribes are not able to hold companies or agencies accountable for the impacts of their practices on tribal communities revealed in consultation, "then it's really a right without a remedy." With its call for reform, the Obama Administration is "taking a very important first step in examining whether the current legal framework is enough to address the concerns raised by Indian tribes." To learn more, please read Tribes May Have More Say In Projects After Dakota Pipeline (subscription may be required).

House Democrats Request GAO Investigation

One day prior to the Administration's statement requesting a formal inquiry into current consultation procedures, Congressman Raul Ruiz, M.D. (D-CA), Ranking Member of the House Subcommittee on Indian, Insular and Alaska Native Affairs and Congressman Raul Grijlava (D-AZ), Ranking Member of the House Committee on Natural Resources, urged the U.S. Governmental Accountability Office (GAO) to issue an investigative report reviewing compliance with tribal consultation policies, adequacy of superfund mitigation efforts on or near tribal lands and communities, and effectiveness of current programs and policies protecting tribal lands and trust resources. Ruiz and Grijalva were joined by 23 Democrats in submitting their request. For more information, please read Democrats Request GAO Investigation on Policies Protecting Health & Environmental Safety of Tribal Communities.

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