Tribal Consultation: Additional Federal Actions Needed for Infrastructure Projects
GAO-19-22
Published: Mar 20, 2019. Publicly Released: Apr 19, 2019.
Fast Facts
Federal agencies are required, at times, to consult with tribes on infrastructure projects like pipelines that may harm tribal natural and cultural resources.
According to tribal and agency officials, there are several factors making these consultations less effective. For example:
Some tribal representatives held the view that agencies did not consider their input and that consultations started too late.
Agencies reported difficulty obtaining the contact information needed to start consulting and other challenges.
Our recommendations included developing a government-wide system to identify and notify tribes of consultations.
Windmill project
Highlights
What GAO Found
Based on interviews with officials from 57 tribes and 21 federal agencies, as well as comments submitted by 100 tribes in 2016 on tribal consultation for infrastructure projects, GAO identified key factors that tribes and agencies believe hinder effective consultation on infrastructure projects.
Some of the key factors identified by tribes included
agencies initiating consultation late in project development stages,
agencies not adequately considering tribal input when making decisions about proposed infrastructure projects, and
agencies not respecting tribal sovereignty or the government-to-government relationship between federally recognized tribes and the federal government.
Some of the key factors identified by the agencies included
challenges in obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities;
agency resource constraints to effectively support consultation; and
difficulties coordinating with other federal agencies when there are multiple agencies involved in particular infrastructure projects.
The 21 agencies in GAO's review have taken some steps to facilitate tribal consultation, but the extent to which these steps have been taken varied by agency. For example, GAO found the following:
Three agencies have developed systems to help identify tribes that should be consulted on infrastructure projects, and 18 agencies have developed systems to help notify tribes of consultation opportunities. For instance, the Department of Housing and Urban Development developed a system that aims to identify over 500 tribes' geographic areas of interest and includes their contact information.
The Federal Permitting Improvement Steering Council (FPISC)—which was created to make the process for federal approval for certain (large) infrastructure projects more efficient—recommended in its fiscal year 2018 best practices report the development of a central federal information system of tribal areas of interest and points of contact for consultation. In July 2018, the Department of Housing and Urban Development submitted a proposal to the FPISC to expand the department's system in response to the FPISC recommendation. Although the FPISC has discussed the proposal, as of October 2018 it had not yet decided whether and how to respond to it. If the FPISC decides to move forward and develop a centralized system, a plan with well-defined goals and clear roles and responsibilities, among other things, will provide greater assurance that a centralized system will be implemented in accordance with successful practices for developing government websites.
Five agencies' tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered, but 16 agencies do not call for such communication in their policies.
Why GAO Did This Study
Federal agencies are required in certain circumstances to consult with tribes on infrastructure projects and other activities, such as permitting natural gas pipelines, which may affect tribal natural and cultural resources. GAO was asked to review federal agencies' processes for consulting with tribes on infrastructure.
This report examines, among other things, key factors tribes and selected federal agencies identified that hinder effective consultation on infrastructure projects and steps agencies have taken to facilitate tribal consultation. GAO examined laws, regulations, and policies and interviewed officials from 21 federal agencies that are generally members of the FPISC. GAO also summarized comments that 100 tribes submitted to federal agencies in 2016 to provide input on tribal consultation for infrastructure projects and interviewed available officials from 57 tribes and eight tribal organizations. Tribal and agency views are not generalizable.
Recommendations
GAO is making one matter for congressional consideration and 22 specific recommendations to 17 of 21 agencies and the FPISC on actions they can take to improve tribal consultation, including that the FPISC develop a plan for establishing a central federal information system and that agencies establish or update their policies to better communicate their consideration of tribal input. The agencies to which GAO made recommendations generally agreed with them.
Matter for Congressional Consideration
| Matter | Status | Comments |
|---|---|---|
| Congress should consider taking legislative action to resolve the long-standing issues between the Corps and the Advisory Council on Historic Preservation over the Corps Regulatory Program's procedures for implementing section 106 of the National Historic Preservation Act. (Matter for Consideration 1) | The Corps has begun taking actions to address these issues. Specifically, in February 2024 the Corps published a proposed rule in the Federal Register that, if finalized, would remove Appendix C to 33 C.F.R. Part 325 and require the agency to follow the Advisory Council on Historic Preservation regulations for implementing section 106 of the NHPA. As of March 2024, the agency was accepting public comments on the proposed rule. |
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Energy | The Secretary of Energy should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with Alaska Native Corporations (ANC) on the same basis as Indian tribes under Executive Order 13175. (Recommendation 1) |
As of October 2024, the Department of Energy indicated the agency was in the process of assessing, amending, and consolidating its existing consultation policies and practices to meet the statutory requirement to consult with Alaska Native Corporations.
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| Environmental Protection Agency | The Administrator of the Environmental Protection Agency should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 2) |
In January 2022, EPA finalized its "Guiding Principles for Consulting with Alaska Native Claims Settlement Act Corporations", that clarify the agency's consultation and coordination practices with Alaska Native Corporations (ANCs). The guidance document outlines a four step approach for consulting with ANCs--identification, notification, input and follow-up. It also recognizes the important distinction that exists when EPA consults with federally recognized tribes pursuant to the federal trust responsibility. EPA made the guidance document publicly available on its tribal consultation and coordination webpage. In addition, EPA developed and circulated a best practices implementation guide as an internal resource for EPA staff to promote better understanding of ANCs and to support a coordinated and consistent approach across EPA programs when consulting with ANCs.
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| Department of Housing and Urban Development | The Secretary of Housing and Urban Development should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 3) |
As of February 2022, the Department of Housing and Urban Development updated its tribal consultation website on CodeTalk to clarify that it will include Alaska Native Corporations (ANC) in its consultation commitments when developing legislation, regulations and policies that affect tribes. CodeTalk is a website designed to deliver electronic information to Native American communities. On CodeTalk, the agency distinguished the federal relationship to ANCs, from the government-to-government relationship between the federal government and each federally recognized American Indian and Alaska Native tribe. Recognizing the distinction, the Department states they will include ANCs in consultations when taking departmental action that has a substantial direct effect on ANCs.
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| United States Fish and Wildlife Service | The Director of the Fish and Wildlife Service should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 4) |
In September 2019, the Fish and Wildlife Service indicated that it had determined that utilizing the Department of the Interior's Policy on Consultation with Alaska Native Claims Settlement Act Corporations would be the most effective and timely mechanism to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175.
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| Department of Homeland Security | The Secretary of Homeland Security should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 5) |
In October 2019, the Department of Homeland Security completed updating its draft policy directive to include consulting with ANCs on the same basis as Tribes. The Department then consulted with Tribes and ANCs on the draft policy. In February 2023, the Department issued its final tribal consultation policy directive along with implementing instructions outlining responsibilities, requirements, and procedures for consulting Tribes and ANCs. For example, the implementing instructions defined Indian Tribes and ANCs, and outlined steps for designated agency consultation officials to notify, seek input, adjudicate, and follow-up with Tribes and ANCs that provide input on agency actions. Both documents were made publicly available on the Department's website.
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| Under Secretary for Rural Development | The Assistant to the Secretary of Agriculture for Rural Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on proposed infrastructure projects. (Recommendation 6) |
In May 2024, USDA issued guidance applicable to all mission areas and agencies, including Rural Development, on tribal consultation report-out processes to supplement USDA's recently updated departmental regulation on tribal consultation. Specifically, the guidance directs agency staff serving as a consultation lead to compile and send a consultation report to all Tribes participating in the consultation. The consultation report is to include a brief overview of how information and recommendations were considered in USDA decisions, any follow-up actions completed or to be completed by USDA, and appropriate points of contact if there are questions. The guidance also includes a consultation report out letter template for agency staff use. The guidance applies to all agency consultations, including those for infrastructure projects. The guidance will be incorporated in a forthcoming departmental manual with best practices for consulting with Tribes.
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| Civil Works | The Director of Civil Works of the Corps should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 7) |
In December 2023 the Corps approved an update to its tribal consultation policy to cover several areas, including a process for agency officials to document how tribal input from tribal consultation was considered in agency decisions. The updated policy directs the relevant decision-making official to provide a timely response, in writing or in person, to each Tribe engaged in consultation about how their input was considered in agency decision-making. If tribal input or recommendations are not incorporated into the decision, the written response should explain why the agency did not do so. The policy was finalized after the Corps had gathered public comments to inform the revisions and completed tribal outreach and consultation on the revised policy.
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| Bureau of Ocean Energy Management | The Director for the Bureau of Ocean Energy Management should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 8) |
In November 2020, the Bureau of Ocean Energy Management (BOEM) amended its tribal consultation guidance to include text that describes how agency staff are to inform tribes or Alaska Native corporations (ANC) about how the views they express to BOEM are considered in agency decision-making. Among other things, the revised guidance states that BOEM will provide feedback to tribes and ANCs during the consultation process, including how BOEM is considering issues raised by tribes and ANCs. In addition, after BOEM makes a decision following consultation, BOEM is to explain its rationale for making its decision and to what extent tribal or ANC feedback and concerns affected the decision.
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| Bureau of Reclamation | The Commissioner of the Bureau of Reclamation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 9) |
In July 2020, the Bureau of Reclamation reviewed and modified its consultation protocol--entitled Working With Indian Tribal Governments: Consultation, Cultural Awareness, and Protocol Guidelines--to provide guidance to staff on communicating with tribes about how tribal consultation was considered in agency decisions. Specifically, the protocol directs staff to notify tribes in writing by mailed letter and e-mail when an agency decision is made following a consultation. The guidance states that the letter should include an explanation of the agency's decision and any decisions or changes that were made as a result of the consultation. According to the guidance, the letter should also include an explanation to address situations where the tribe's desired outcome cannot be accommodated.
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| Department of Energy | The Secretary of Energy should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 10) |
As of October 2024, the Department of Energy indicated the agency is in the process of revising and implementing a Consultation Action Plan that documents policies regarding how input from tribal consultation was considered in agency decisions on infrastructure projects, and how consultation and engagement can be improved. The agency is also working to make appropriate revisions to the Department of Energy's American Indian Tribal Government Interactions and Policy (Order 144.1).
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| Federal Communications Commission | The Chairman of the Federal Communications Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 11) |
In July 2020, the Federal Communications Commission (FCC) issued internal guidance for staff on how agency officials are to communicate with tribes about how the FCC collects and considers tribal input in agency decision-making on proposed infrastructure projects. The guidance outlines steps for communicating with tribes on decision-making for proposed projects requiring FCC approval under specific circumstances. For example, FCC is involved in cases where the project applicant and tribe disagree on whether the applicant has met obligations to identify a proposed project's impacts of concern to a tribe or have substantive disagreement on the project's potential to affect a historic property of significance to a tribe. The guidance states that FCC staff make determinations after considering evidence provided by both parties and will notify both parties of a final decision. In cases where there is substantive disagreement, the guidance further notes that FCC will directly communicate with a tribe to explain how its input was taken into consideration in determining what is required for the project to proceed.
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| Federal Emergency Management Agency | The Administrator of the Federal Emergency Management Agency should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 12) |
In July 2019, the Federal Emergency Management Agency (FEMA) updated its tribal consultation policy (FEMA Policy No. 1001-002-02) to include a protocol with steps for conducting tribal consultation on agency actions that have tribal implications. The protocol outlines four phases of tribal consultation, including a follow-up phase for communicating with tribes after consultation. Specifically, the updated policy states that after FEMA consults with tribal officials and their appointed designees, FEMA is to consider the input received during the consultation period and incorporate that input into the agency's decision-making process. FEMA is then to follow up with all tribal officials who were engaged in the consultation and communicate how their input was used to inform the agency's final decision.
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| Federal Energy Regulatory Commission | The Chairman of the Federal Energy Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 13) |
Effective November 2019, the Federal Energy Regulatory Commission revised its Policy Statement on Consultation with Indian Tribes in Commission Proceedings by adding language stating that the Commission will use the agency's environmental and decisional documents to communicate how tribe's input from consultation was considered in agency decisions on infrastructure projects. In addition, the Commission added specific reference to treaty rights to the policy statement, and consultation with Alaska Native Corporations (ANCs) on the same basis as Indian tribes under Executive Order 13175.
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| Federal Highway Administration | The Administrator of the Federal Highway Administration should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 14) |
In August 2023, the Department of Transportation updated its department wide tribal consultation policy. We are seeking additional information from the Federal Highway Administration (FHWA) about its plans to update the FHWA consultation policy.
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| United States Fish and Wildlife Service | The Director of the Fish and Wildlife Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 15) |
In October 2018, the Fish and Wildlife Service (FWS) updated its Tribal Consultation Handbook to include general guidance regarding communication after consultation. Specifically, the handbook recommends agency and tribal officials consider developing consultation protocols that include concurrence on a conclusion process with steps for communicating after consultation. For example, the handbook recommends stipulating in consultation protocols that FWS officials should notify tribes of its decision on a particular action through formal written communication from a senior FWS official, to the most senior tribal official involved in the consultation. In addition, the guidance recommends stipulating that written notification should include discussion of the agency's basis for its decision, how the final decision was or was not able to accommodate tribal concerns raised during the consultation process. (Note: In our March 2019 report, we reviewed agencies' tribal consultation policies updated as of July 2018.)
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| Department of Homeland Security | The Secretary of Homeland Security should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 16) |
In October 2019, the Department of Homeland Security developed draft updates of its directive and implementing instruction that include a process for agency officials to communicate with Tribes and Alaska Native Corporations (ANCs) on how input from consultation was considered in the decision-making process on matters with tribal implications. The Department then consulted with Tribes and ANCs on these updates. In February 2023, the Department finalized its tribal consultation policy directive and implementing instructions. In particular, the implementing instruction describes four steps of consultation including a final follow-up and closure step which notes that how results are incorporated will depend on the nature of the action and the tribal implication. For instance, if promulgating a rule with tribal implications, the preamble of the regulations should discuss the consultation effort, comments received, and how comments were addressed. In addition, the instruction states a summary of how input is incorporated in final decisions should generally be prepared and shared with those providing input in the consultation. Both documents were made publicly available on the Department's website.
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| Department of Housing and Urban Development | The Secretary of Housing and Urban Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 17) |
As of February 2022, the agency updated its tribal consultation website on CodeTalk to clarify its approach for communicating how tribal input was considered when it consults with tribes on infrastructure projects. CodeTalk is a website designed to deliver electronic information to Native American communities. The Department states on CodeTalk that it will advise tribes on how key general comments were considered when the Department announces its decisions on the corresponding infrastructure project.
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| National Park Service | The Director for the National Park Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 18) |
In December 2019, the National Park Service (NPS) updated its annual tribal consultation reporting template to include a request for information from its parks and programs about whether they have communicated with tribes about how tribal input from consultation was considered in NPS decisions, and the manner in which the communication occurred (e.g., in writing, in person, or other). The updated template also states that the conclusion of the consultation process requires communicating with tribes about the results of the process. NPS implemented use of the updated template as part of its collection of information in 2020 on NPS consultation activities conducted in fiscal years 2018 and 2019. Information from this template was reported in a summary report on NPS partnerships and consultations with tribes in June 2020.
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| Nuclear Regulatory Commission | The Chairman of the Nuclear Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 19) |
In December 2020, the Nuclear Regulatory Commission issued interim guidance for staff on informing tribes of final agency decisions and responding to tribal input. The guidance clarifies that staff are responsible for providing written communication to federally recognized tribes who provide input on any agency regulatory action, as soon as practical, after the agency's final decision. This interim guidance will be included in the next update of the agency's tribal consultation policy, Management Directive 5.1, "Consultation and Coordination with Governments and Indian Tribes."
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| Department of Transportation | The Secretary of Transportation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 20) |
In August 2023, the Department of Transportation issued its revised tribal consultation policy and procedures (DOT Order 5301.1A). The revised policy outlines processes for consulting with Tribes. Among other things, It requires the Department to explain the basis of the Department's responses to Tribal comments regarding a proposed action with Tribal implications using email, direct mail, or on the Department's website. As a result of its revised guidance, DOT agencies will have better assurance that they are adequately communicating with tribes about how their input was considered.
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| Federal Permitting Improvement Steering Council | The Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to develop a plan to establish a central information system for identifying and notifying tribes that includes (1) well-defined goals for the system, (2) specifies FPISC members' roles and responsibilities for establishing and maintaining the system given existing statutory authority, and (3) identifies resources required for developing and maintaining the system. (Recommendation 21) |
In March 2020, the Advisory Council on Historic Preservation (ACHP) and the Department of Housing and Urban Development (HUD), in consultation with the Federal Permitting Improvement Steering Council, Office of the Executive Director (FPISC-OED), developed a written implementation and communication plan for establishing a central information system for identifying and notifying tribes on matters related to infrastructure projects. The plan, developed with input from FPISC members, outlines goals of providing accurate tribal contact information in one central database to facilitate tribal consultation and steps for ensuring long-term maintenance of the system by utilizing and adapting HUD's existing Tribal Directory Assessment Tool (TDAT). Among other things, the plan identifies roles and responsibilities for FPISC members in establishing and maintaining the system. For example, the plan identifies HUD as the day-to-day manager of the system and responsible for implementing system improvements. In addition, the plan describes steps HUD, ACHP and FPISC-OED will take to provide communication and training about the system to federal, state, and local governments and federally recognized tribes. The plan also includes cost estimates for system improvements and maintenance, and further identifies potential short-term and long-term funding sources to support these activities.
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| Federal Permitting Improvement Steering Council | As a central information system is established, the Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to consider how they will communicate with and involve tribes to help maintain accurate tribal data in the system. (Recommendation 22) |
In March 2020, the Advisory Council on Historic Preservation (ACHP) and the Department of Housing and Urban Development (HUD), in consultation with the Federal Permitting Improvement Steering Council, Office of the Executive Director (FPISC-OED), developed a written implementation and communication plan for utilizing and adapting HUD's existing Tribal Directory Assessment Tool (TDAT) as a centralized system for identifying and notifying tribes on matters related to infrastructure projects. Among other things, the plan outlines steps for communicating with tribes about TDAT and involving tribes to help maintain accurate tribal data in the system. For example, the plan describes HUD as leading communication and messaging responsibilities to tribes with support from ACHP and FPISC-OED about TDAT. HUD and ACHP, with assistance from FPISC-OECD, will also engage FPISC members to ensure there is consistent message on TDAT conveyed to tribes from all levels of the federal government. In addition, the plan describes proposed enhancements to TDAT, including the addition of a protocol box where tribes can add preferences on communication methods and points of contact, that will help ensure agencies are outreaching to the correct tribal contacts using preferred communication methods.
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