EX. ORD. NO. 13175. CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS
EX. ORD. NO. 13175. CONSULTATION AND COORDINATION WITH INDIAN
TRIBAL GOVERNMENTS
Ex. Ord. No. 13175, Nov. 6, 2000, 65 F.R. 67249, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) "Policies that have tribal implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on 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 andIndian tribes.
(b) "Indian tribe" means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(c) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) "Tribal officials" means elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.
Sec. 2. Fundamental Principles. In formulating or implementing policies that have tribal implications, agencies shall be guided by the following fundamental principles:
(a) The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.
(b) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination.
Sec. 3. Policymaking Criteria. In addition to adhering to the fundamental principles set forth in section 2, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have tribal
implications:
(a) Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.
(b) With respect to Federal statutes and regulations administered by Indian tribal governments, the Federal Government shall grant Indian tribal governments the maximum administrative discretion possible.
(c) When undertaking to formulate and implement policies that have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve program objectives;
(2) where possible, defer to Indian tribes to establish standards; and
(3) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.
Sec. 4. Special Requirements for Legislative Proposals. Agencies shall not submit to the Congress legislation that would be inconsistent with the policymaking criteria in Section 3.
Sec. 5. Consultation. (a) Each agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. Within 30 days after the effective date of this order, the head of each agency shall designate an official with principal responsibility for the agency's implementation of this order. Within 60 days of the effective date of this order, the designated official shall submit to the Office of Management and Budget (OMB) a description of the agency's consultation process.
(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the Indian tribal government or the tribe in complying with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) consulted with tribal officials early in the process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency's prior consultation with tribal officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(C) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation,
(1) consulted with tribal officials early in the process of developing the proposed regulation;
(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency's prior consultation with tribal officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(3) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(d) On issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appropriate, use consensual mechanisms
for developing regulations, including negotiated rulemaking.
Sec. 6. Increasing Flexibility for Indian Tribal Waivers.
(a) Agencies shall review the processes under which Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by law, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency, or as otherwise provided by law or regulation. If the application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
Sec. 7. Accountability.
(a) In transmitting any draft final regulation that has tribal implications to OMB pursuant to Executive Order 12866 of September 30, 1993 [5 U.S.C. 601 note], each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements of this order have been met in a meaningful and timely manner.
(b) In transmitting proposed legislation that has tribal implications to OMB, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this order the Director of OMB and the Assistant to the President for Intergovernmental Affairs shall confer with tribal officials to ensure that this order is being properly and effectively implemented.
Sec. 8. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.
Sec. 9. General Provisions. (a) This order shall supplement but not supersede the requirements contained in Executive Order 12866 (Regulatory Planning and Review) [5 U.S.C. 601 note], Executive Order 12988 (Civil Justice Reform) [28 U.S.C. 519 note], OMB Circular A-19, and the Executive Memorandum of April 29, 1994, on Government-to-Government Relations with Native American Tribal Governments [set out below].
(b) This order shall complement the consultation and waiver provisions in sections 6 and 7 of Executive Order 13132 (Federalism) [5 U.S.C. 601 note].
(c) Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments) is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date of this order.
Sec. 10. Judicial Review. This order is intended only to improve the internal management of the executive branch, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the United States, its agencies, or any person.
William J. Clinton.
GOVERNMENT-TO-GOVERNMENT RELATIONS WITH NATIVE AMERICAN TRIBAL GOVERNMENTS
Memorandum of President of the United States, Apr. 29, 1994, 59
F.R. 22951, provided:
Memorandum for the Heads of Executive Departments and Agencies
The United States Government has a unique legal relationship with
Native American tribal governments as set forth in the Constitution
of the United States, treaties, statutes, and court decisions. As
executive departments and agencies undertake activities affecting
Native American tribal rights or trust resources, such activities
should be implemented in a knowledgeable, sensitive manner
respectful of tribal sovereignty. Today, as part of an historic
meeting, I am outlining principles that executive departments and
agencies, including every component bureau and office, are to
follow in their interactions with Native American tribal
governments. The purpose of these principles is to clarify our
responsibility to ensure that the Federal Government operates
within a government-to-government relationship with federally
recognized Native American tribes. I am strongly committed to
building a more effective day-to-day working relationship
reflecting respect for the rights of self-government due the
sovereign tribal governments.
In order to ensure that the rights of sovereign tribal
governments are fully respected, executive branch activities shall
be guided by the following:
(a) The head of each executive department and agency shall be
responsible for ensuring that the department or agency operates
within a government-to-government relationship with federally
recognized tribal governments.
(b) Each executive department and agency shall consult, to the
greatest extent practicable and to the extent permitted by law,
with tribal governments prior to taking actions that affect
federally recognized tribal governments. All such consultations are
to be open and candid so that all interested parties may evaluate
for themselves the potential impact of relevant proposals.
(c) Each executive department and agency shall assess the impact
of Federal Government plans, projects, programs, and activities on
tribal trust resources and assure that tribal government rights and
concerns are considered during the development of such plans,
projects, programs, and activities.
(d) Each executive department and agency shall take appropriate
steps to remove any procedural impediments to working directly and
effectively with tribal governments on activities that affect the
trust property and/or governmental rights of the tribes.
(e) Each executive department and agency shall work cooperatively
with other Federal departments and agencies to enlist their
interest and support in cooperative efforts, where appropriate, to
accomplish the goals of this memorandum.
(f) Each executive department and agency shall apply the
requirements of Executive Orders Nos. 12875 ("Enhancing the
Intergovernmental Partnership") [former 5 U.S.C. 601 note] and
12866 ("Regulatory Planning and Review") [5 U.S.C. 601 note] to
design solutions and tailor Federal programs, in appropriate
circumstances, to address specific or unique needs of tribal
communities.
The head of each executive department and agency shall ensure
that the department or agency's bureaus and components are fully
aware of this memorandum, through publication or other means, and
that they are in compliance with its requirements.
This memorandum is intended only to improve the internal
management of the executive branch and is not intended to, and does
not, create any right to administrative or judicial review, or any
other right or benefit or trust responsibility, substantive or
procedural, enforceable by a party against the United States, its
agencies or instrumentalities, its officers or employees, or any
other person.
The Director of the Office of Management and Budget is authorized
and directed to publish this memorandum in the Federal Register.
William J. Clinton.
-End-
-CITE-
25 USC Sec. 450a 01/06/03
-EXPCITE-
TITLE 25 - INDIANS
CHAPTER 14 - MISCELLANEOUS
SUBCHAPTER II - INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
-HEAD-
Sec. 450a. Congressional declaration of policy
-STATUTE-
(a) Recognition of obligation of United States
The Congress hereby recognizes the obligation of the United
States to respond to the strong expression of the Indian people for
self-determination by assuring maximum Indian participation in the
direction of educational as well as other Federal services to
Indian communities so as to render such services more responsive to
the needs and desires of those communities.
(b) Declaration of commitment
The Congress declares its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian
people as a whole through the establishment of a meaningful Indian
self-determination policy which will permit an orderly transition
from the Federal domination of programs for, and services to,
Indians to effective and meaningful participation by the Indian
people in the planning, conduct, and administration of those
programs and services. In accordance with this policy, the United
States is committed to supporting and assisting Indian tribes in
the development of strong and stable tribal governments, capable of
administering quality programs and developing the economies of
their respective communities.
(c) Declaration of national goal
The Congress declares that a major national goal of the United
States is to provide the quantity and quality of educational
services and opportunities which will permit Indian children to
compete and excel in the life areas of their choice, and to achieve
the measure of self-determination essential to their social and
economic well-being.
-SOURCE-
(Pub. L. 93-638, Sec. 3, Jan. 4, 1975, 88 Stat. 2203; Pub. L.
100-472, title I, Sec. 102, Oct. 5, 1988, 102 Stat. 2285.)
-MISC1-
AMENDMENTS
1988 - Subsec. (b). Pub. L. 100-472 added subsec. (b) and struck
out former subsec. (b) which read as follows: "The Congress
declares its commitment to the maintenance of the Federal
Government's unique and continuing relationship with and
responsibility to the Indian people through the establishment of a
meaningful Indian self-determination policy which will permit an
orderly transition from Federal domination of programs for and
services to Indians to effective and meaningful participation by
the Indian people in the planning, conduct, and administration of
those programs and services."
-End-