EO: Consultation & Coordination w/Tribes

[Aimee Houghton <aimeeh@cpeo.org>]

Attached, please find the May 14, 1998 Executive Order on "Consultation and
Coordination with Indian Tribal Governments."

Luke Jones, Envtl. Program Manager
Native American Consultants, Inc. (NACI)

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CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS

THE WHITE HOUSE
Office of the Press Secretary
(Birmingham, England)
_______________________________________
For Immediate Release May 14, 1998

EXECUTIVE ORDER

CONSULTATION AND COORDINATION
WITH INDIAN TRIBAL GOVERNMENTS

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. In treaties, our Nation has guaranteed 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, trust resources, and Indian tribal treaty and other rights.

Therefore, 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 Indian tribal
governments in the development of regulatory practices on Federal matters
that significantly or uniquely affect their communities; to reduce the
imposition of unfunded mandates upon Indian tribal governments; and to
streamline the application process for and increase the availability of
waivers to Indian tribal governments; it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) "State" or "States" refer to the States of the United States of America,
individually or collectively, and, where relevant, to State governments,
including units of local government and other political subdivisions
established by the States.

(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).

Sec. 2. Policymaking Criteria. In formulating policies significantly or
uniquely affecting Indian tribal governments, agencies shall be guided, to
the extent permitted by law, by principles of respect for Indian tribal
self-government and sovereignty, for tribal treaty and other rights, and for
responsibilities that arise from the unique legal relationship between the
Federal Government and Indian tribal governments.

Sec. 3. Consultation.

(a) Each agency shall have an effective process to permit elected officials
and other representatives of Indian tribal governments to provide meaningful
and timely input in the development of regulatory policies on matters that
significantly or uniquely affect their communities.

(b) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that is not required by statute, that
significantly or uniquely affects the communities of the Indian tribal
governments, and that imposes substantial direct compliance costs on such
communities, unless:

(1) funds necessary to pay the direct costs incurred by the Indian tribal
government in complying with the regulation are provided by the Federal
Government; or

(2) the agency, prior to the formal promulgation of the regulation,

(A) 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 the
Office of Management and Budget a description of the extent of the agency's
prior consultation with representatives of affected Indian tribal
governments,a summary of the nature of their concerns, and the agency's
position supporting the need to issue the regulation; and

(B) makes available to the Director of the Office of Management and Budget
any written communications submitted to the agency by such Indian tribal
governments.

Sec. 4. Increasing Flexibility for Indian Tribal Waivers.

(a) Agencies shall review the processes under which Indian tribal
governments 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 tribal government for a waiver of
statutory or regulatory requirements in connection with any program
administered by that 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. The agency shall provide the
applicant with timely written notice of the decision and, if the application
for a waiver is not granted, the reasons for such denial.

(d) This section applies only to statutory or regulatory requirements that
are discretionary and subject to waiver by the agency.

Sec. 5. Cooperation in developing regulations. On issues relating to
tribal self-government, trust resources, or treaty and other rights, each
agency should explore and, where appropriate, use consensual mechanisms for
developing regulations, including negotiated rulemaking.

Sec. 6. Independent agencies. Independent regulatory agencies are encourag
ed to comply with the provisions of this order.

Sec. 7. General provisions.

(a) This order is intended only to improve the internal management of the
executive branch and is not intended to, and does not, create any right,
benefit, or trust responsibility, substantive or procedural, enforceable at
law or equity by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.

(b) This order shall supplement but not supersede the requirements contained
in Executive Order 12866 ("Regulatory Planning and Review"), Executive Order
12988 ("Civil Justice Reform"), OMB Circular A-19, and the Executive
Memorandum of April 29, 1994, on Government-to-Government Relations with
Native American Tribal Governments.

(c) This order shall complement the consultation and waiver provisions in
sections 4 and 5 of the Executive order, entitled "Federalism," being issued
on this day.

(d) This order shall be effective 90 days after the date of this order.

 WILLIAM J. CLINTON
 THE WHITE HOUSE,
 May 14, 1998.