,i #aacth ,,congress #ast ,session ,h4 ,r4 #afjj ,,in ,,the ,,house ,,of ,,representatives ,april #ag1 #bjac ,mr4 ,grijalva introduced the following bill2 which was referred to the ,committee on ,natural ,resources ,a ,,bill ,to prescribe procedures for effective consultation and coordination by ,federal agencies with federally recognized ,indian tribes regarding ,federal ,government activities that impact tribal lands and interests to ensure that meaningful tribal input is an integral part of the ,federal decisionmaking process4 #a4 ,short title2 table of contents2 findings2 declaration of goals2 definitions 7a7 ,short title ,this ,act may be cited as the ,requirements1 ,expectations1 and ,standard ,procedures for ,executive ,consultation with ,tribes ,act or the ,,respect ,act4 7b7 ,table of contents ,the table of contents of this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents2 findings2 declaration of goals2 definitions4 ,title ,i--,,sense ,,of ,,congress ,sec4 #aja4 ,sense of ,congress4 ,title ,,ii--,,consultation ,,procedure ,sec4 #bja4 ,requirement for consultation4 ,sec4 #bjb4 ,timing4 ,sec4 #bjc4 ,scoping stage consultation4 ,sec4 #bjd4 ,decision stage procedures4 ,sec4 #bje4 ,documentation and reporting4 ,sec4 #bjf4 ,implementation4 ,sec4 #bjg4 ,sensitive tribal information4 ,title ,,iii--,,tribal ,,sovereignty ,sec4 #cja4 ,tribal sovereignty4 ,title ,,iv--,,indian ,,tribal ,,waivers ,sec4 #dja4 ,indian tribal waivers4 ,title ,v--,,judicial ,,review ,sec4 #eja4 ,judicial review4 7c7 ,findings ,congress finds that-- 7#a7 the ,united ,states has a unique1 legally affirmed government-to-government relationship with ,indian tribal governments as set forth in the ,constitution of the ,united ,states1 treaties1 statutes1 ,executive orders1 and court decisions2 7#b7 the ,united ,states recognizes the right of ,indian tribes to self-government and supports tribal sovereignty and self-determination2 7#c7 the ,united ,states has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with ,indian tribes2 7#d7 the ,united ,states has a responsibility to consult with ,indian tribes on a government-to-government basis when formulating policies and undertaking activities that will have impacts on tribal lands and interests2 7#e7 procedures for such consultation should be designed and structured to give ,indian tribes opportunities to provide meaningful1 informed input throughout the development and decisionmaking processes2 7#f7 building institutional knowledge and capacity for effective consultation fosters greater efficiency and benefits for future projects2 7#g7 the consultation process should be institutionalized according to best practices that are designed and administered by the agency and that fulfill the legal requirements mandated by this ,act2 7#h7 consulting with ,indian tribes during the formulation of long-term management plans reduces the likelihood of project delays and increases the efficiency of project implementations2 and 7#i7 effective consultation demands ongoing1 respectful communication between agencies and ,indian tribes4 7d7 ,declaration of goals ,the goals of this ,act are-- 7#a7 to establish and support a process of regular1 meaningful consultation and collaboration with ,indian tribes in the development of ,federal policies and the initiation of ,federal activities that impact tribal lands and interests2 7#b7 to strengthen the ,united ,states government-to-government relationships with ,indian tribes2 7#c7 to establish minimum standard procedures to ensure the above goals are achieved2 and 7#d7 to recognize tribal regulatory authority and jurisdiction generally1 and specifically through the waiver process4 7e7 ,definitions ,for the purposes of this ,act3 7#a7 ,indian tribe ,the term ,indian tribe means an ,indian or ,alaska ,native tribe1 band1 nation1 pueblo1 village1 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 #aiid 7#be ,u4,s4,c4 #dgi;a71 including all tribes that have been added to the list since the ,act became law4 7#b7 ,agency ,the term agency means any authority of the ,united ,states that is an agency under section #cejb7a7 of title #dd1 ,united ,states ,code4 7#c7 ,activity ,the term activity means a project1 program1 policy or other action including1 infrastructure projects1 regulations1 program comments by ,federal entities1 and agency-drafted proposed legislation1 that is funded in whole or in part under the direct or indirect jurisdiction of an agency1 including those carried out by or on behalf of an agency2 those carried out with ,federal financial assistance2 or those requiring a ,federal permit1 license1 or approval4 7#d7 ,sacred ,site ,the term sacred site means any specific1 discrete1 narrowly delineated location on ,federal land that is identified by an ,indian tribe-- 7,a7 as sacred by virtue of its established religious significance to1 or ceremonial use by1 an ,indian religion2 or 7,b7 to be of established cultural significance4 7#e7 ,memorandum of ,agreement ,the term memorandum of agreement means a document that records the terms and conditions agreed upon by an agency and an ,indian tribe through the consultation process regarding an activity1 including any measures to be taken to resolve or mitigate adverse impacts on the ,indian tribe4 7#f7 ,new ,discovery ,the term new discovery means any unexpected development that occurs during the course of an activity1 such as the discovery of a new archeological site1 unanticipated impacts on organisms or ecosystems1 or the realization of unintended consequences of a new regulation1 that may have impacts on tribal lands and interests4 7#g7 ,standard ,process ,the term standard process means a streamlined process for agency-,indian tribe interaction agreed to by both parties through consultation and certified in a memorandum of agreement that applies to certain specified activities or limited categories of activities4 ,i ,,sense ,,of ,,congress #aja4 ,sense of ,congress ,it is the sense of ,congress that consultation constitutes more than simply notifying an ,indian tribe about a planned undertaking4 ,consultation entails a process of open1 ongoing communication1 interaction and coordination that may include written correspondence1 meetings1 telephone conferences1 site visits1 e-mails1 on-line information sharing1 consensual mechanisms for developing regulations including negotiated rulemaking1 and more4 ,consultation means the process of seeking1 discussing1 and considering the views of other participants1 and1 where feasible1 seeking agreement with them regarding proposed activities and other matters4 ,mutual understanding and respect is the basis of effective1 meaningful consultation4 ,effective1 meaningful consultation requires a two-way exchange of information1 a willingness to listen1 an attempt to understand and genuinely consider each other's opinions1 beliefs1 and desired outcomes1 and a seeking of agreement on how to proceed concerning the issues at hand4 ,effective1 meaningful consultation does not guarantee such agreement1 but at a minimum contributes to the building of relationships based on mutual respect and understanding4 ,consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn1 acknowledge and respect the positions1 perspectives1 and concerns of the other parties4 ,ultimately1 effective1 meaningful consultation means collaboration4 ,,ii ,,consultation ,,procedure #bja4 ,requirement for consultation 7a7 ,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 tribes1 on the relationship between the ,federal ,government and ,indian tribes1 or on the distribution of power and responsibilities between the ,federal ,government and ,indian tribes4 ,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 #aaea of title #ah1 ,united ,states ,code1 but is not limited to activities on such lands4 7b7 ,multi-,agency activities ,in the case of agency-drafted proposed legislation1 the drafting agency1 and any other agency that will be implementing the legislation1 shall each be considered involved in the activity4 ,if more than one agency is involved in an activity1 some or all of the agencies may designate a lead agency1 which shall fulfill their collective consultation responsibilities4 ,those agencies that do not designate a lead agency shall remain individually responsible for their consultation responsibilities under this ,act4 7c7 ,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 ,act4 ,nor does it preclude an agency from additional consultation that complies with agency regulations for consultation1 advances agency consultation practices1 or supports agency efforts to build or strengthen government-to-government relationships with ,indian tribes4 ,the requirements of this ,act supplement1 but do not replace1 other consultation requirements such as the ,federal ,energy ,regulatory ,commission regulations for license applicants4 #bjb4 ,timing ,consultation as described in sections #bjc and #bjd shall be completed prior to the expenditure of any ,federal funds on the activity or prior to the issuance of any license other than for funding nondestructive project planning activities provided that such actions do not restrict the subsequent consideration of alternatives to avoid1 minimize1 or mitigate the activity's adverse tribal impacts4 #bjc4 ,scoping stage consultation 7a7 ,planning document ,as early as possible in the planning stage of an activity1 the agency shall compile a draft of the scope of the project1 including any geographic areas important to ,indian tribes that might be affected and any other anticipated tribal impacts4 ,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 agency4 7b7 ,tribal consultation partners ,the agency shall consult with all ,indian tribes that may be impacted by an activity4 ,when appropriate1 the agency shall consult with regional and national tribal organizations such as the ,national ,congress of ,american ,indians1 the ,national ,tribal ,environmental ,council1 the ,native ,american ,fish and ,wildlife ,society1 the ,united ,south and ,eastern ,tribes1 the ,national ,association of ,tribal ,historic ,preservation ,officers1 the ,michigan ,anishinaabek ,cultural ,preservation and ,repatriation ,alliance1 and the ,affiliated ,tribes of ,northwest ,indians1 to determine which ,indian tribes may be affected by the activity4 ,under no circumstance shall the agency treat consultation with intertribal organizations as a substitute for consultation with each affected ,indian tribe1 unless the ,indian tribes comprising such an organization agree that consultation should proceed through the intertribal organization4 ,the agency shall remain responsible for its consultation responsibilities under this ,act to any affected ,indian tribes not participating in such an agreement4 ,other resources for identifying ,indian tribes that need to be consulted include officials1 such as cultural resource specialists1 from other agencies who have consulted with ,indian tribes in the region in the past1 ethnographies1 local histories1 local university experts1 oral accounts1 the ,national ,park ,service's ,native ,american ,consultation ,database1 ,,maps3 ,,gis ,windows on ,native ,lands1 ,current ,places1 and ,history1 and the ,library of ,congress ,indian ,land ,cessions document ,web site4 7c7 ,initial contact with consultation partners ,the agency-- 7#a7 shall send1 via ,united ,states mail and e-mail1 if possible1 a copy of the planning document and a letter requesting consultation meetings to the relevant tribal government officials including the tribal leader and all members of any elected tribal governing body1 such as a tribal council1 relevant tribal governmental agencies1 including the ,tribal ,historic ,preservation ,officer or cultural resource manager1 and relevant non-tribal stakeholders1 such as the ,state ,historic ,preservation ,officer and local governments that have jurisdiction on any affected land via agreement with the agency2 7#b7 at the request of the ,indian tribe1 shall send1 via ,united ,states mail and e-mail1 if possible1 a copy of the planning document and a letter requesting consultation meetings to nongovernmental tribal stakeholders1 such as elders councils and religious leaders2 7#c7 shall not request consultation with nongovernmental tribal stakeholders without the written consent of the ,indian tribe2 and 7#d7 shall follow-up with phone calls to confirm receipt of the documents by all recipients4 7d7 ,consultation meeting arrangements ,the agency shall negotiate with stakeholder representatives to determine the time1 place1 agenda1 travel funds1 facilitator1 format1 and goals of a consultation meeting4 ,the agency shall make a good faith effort to engage in consultation1 keeping thorough documentation of all steps taken to contact and engage the ,indian tribe in consultation4 ,if1 after a good faith effort1 the agency fails to engage the ,indian tribal government1 it may terminate its scoping stage consultation efforts by providing all consultation partners with a written notification and explanation for its decision1 signed by the head of the agency1 and proceed to the decision stage procedures described in section #bjd4 7e7 ,consultation meeting format ,a consultation meeting shall begin with confirmation of the format1 facilitator1 and agenda1 with adequate time scheduled for introductions and for interaction throughout the meeting among participants4 ,whenever possible1 tribal stakeholders shall be brought into the ongoing planning process directly by forming ad hoc workgroups including tribal leaders or their designees and1 if appropriate1 initiating a process for consensual development of regulations1 such as negotiated rulemaking4 ,the meeting shall conclude with planning for the next meeting1 if necessary4 7f7 ,termination of scoping stage consultation with a memorandum of agreement 7#a7 ,termination ,scoping stage consultation shall terminate upon the execution of a memorandum of agreement signed by the head of the agency and the ,indian tribal government4 7#b7 ,signatories ,the ,indian tribal government and the agency may jointly invite additional parties to be signatories of the memorandum of agreement4 ,the signatories have sole authority to execute1 amend1 or terminate the memorandum of agreement4 ,if any signatory determines that the terms of the memorandum of agreement cannot be or are not being carried out1 the signatories shall consult to seek amendment of the memorandum of agreement4 ,if the memorandum of agreement is not amended1 any signatory may terminate the agreement1 with the option to return to scoping stage consultation4 ,the agency shall provide all non-signatory consulting partners with the opportunity to submit a written statement1 explanation1 or comment on the consultation proceedings that shall become part of the agency's official consultation record4 7#c7 ,,moa ,the memorandum of agreement-- 7,a7 may address multiple activities if the activities are similar and repetitive or are multi-,state or regional in scope1 or where routine management activities are undertaken at ,federal installations1 facilities1 or other land management units2 7,b7 may establish standard processes for certain categories of activities determined through consultation and defined in the memorandum of agreement2 7,c7 shall include a provision for monitoring and reporting on its implementation2 7,d7 shall include provisions for termination or reconsideration if the activity has not been completed within a specified time2 and 7,e7 shall include provisions to address new discoveries1 which may include halting the activity and returning to scoping stage consultation4 7g7 ,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 agreement4 ,if1 after a good faith effort1 the agency determines that further consultation will not be productive1 it may terminate consultation by providing all consultation partners with a written notification and explanation for its decision1 signed by the head of the agency1 and proceed to the decision stage procedures described in section #bjd4 ,the ,indian tribal government may at any point decide to terminate consultation4 ,in such case1 the agency shall provide the ,indian tribal government with the opportunity to submit a written statement1 explanation1 or comment on the consultation proceedings that will become part of the agency's official consultation record4 ,any nongovernmental consultation partners may decide to withdraw from consultation at any time4 ,in such case1 the agency shall provide the withdrawing nongovernmental consultation partner with the opportunity to submit a written statement1 explanation1 or comment on the consultation proceedings that will become part of the agency's official consultation record4 #bjd4 ,decision stage procedures 7a7 ,proposal document ,the agency shall compile a document consisting of the plan for the activity1 its anticipated tribal impacts1 any memorandum of agreement1 and any written statements made by consulting partners during the scoping stage as described in section #bjc4 ,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 basis4 ,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 review4 ,the agency shall mail and e-mail1 if possible1 a copy of the ,proposal ,document to all consultation partners1 including any who withdrew from the process4 ,at a minimum1 the document shall go to the tribal leader and all members of any elected tribal governing body4 ,the agency shall follow up with phone calls to confirm receipt of the document4 ,after these steps have been completed1 the ,proposal ,document shall be published in the ,federal ,register1 subject to the provisions of section #bjg4 7b7 ,public comment period ,the agency shall provide a period of not less than #ij days after publication in the ,federal ,register for comments on the ,proposal ,document4 ,a #cj-;day extension shall be granted upon request by any member of the ,indian tribe4 7c7 ,preliminary decision ,after expiration of the comment period1 the agency shall prepare a preliminary decision letter1 signed by the head of the agency4 ,the letter shall state the decision to proceed or not proceed with the activity1 the decision's rationale1 any changes in the proposal made in response to comments1 and any points where the decision conflicts with the expressed requests of any of the consultation partners4 ,it shall particularly address why the decision was made to disregard any such requests4 ,the agency shall mail and e-mail1 if possible1 a copy of the letter to all consultation partners1 including any who withdrew from the process4 ,at a minimum1 the letter shall go to the tribal leader and all members of the tribal governing body4 ,the agency shall follow up with phone calls to confirm receipt of the letter4 7d7 ,final decision ,the agency shall provide a #fj-;day period following the issuance of the preliminary decision letter for response by the consultation partners4 ,thereafter1 the agency shall notify in writing1 signed by the head of the agency1 the consultation partners1 including any who withdrew from the process1 of the agency's final decision4 #bje4 ,documentation and reporting 7a7 ,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 omissions1 and provides an official record of the process that can be referred to in any litigation that may arise4 ,the agency shall document all efforts to initiate consultation as well as documenting the process once it has begun4 ,such documentation1 including1 but not limited to1 correspondence1 telephone logs1 and e-mails1 shall be included in the agency's official consultation record4 ,the agency shall also keep notes so that the consultation record documents the content of consultation meetings1 site visits1 and phone calls in addition to information about dates and who participated4 7b7 ,payment for tribal documentation work ,if the agency asks an ,indian tribe for specific information or documentation regarding the location1 nature1 and condition of individual sites1 to conduct a survey1 or in any way fulfill the duties of the agency in a role similar to that of a consultant or contractor1 then the agency must pay for such services1 if so requested by the ,indian tribe1 as it would for any private consultant or contractor4 7c7 ,report to congress ,each agency shall on a biennial basis submit to ,congress a report on its consultation activities4 #bjf4 ,implementation ,not later than #cj days after the date of the enactment of this ,act1 the head of each agency shall designate an official with principal responsibility for the agency's review of existing consultation and coordination policies and procedures1 and implementation of this ,act4 ,not later than #fj days after the effective date of this order1 the designated official shall submit to the ,office of ,management and ,budget a description of the agency's revised consultation process in conformity with this ,act4 #bjg4 ,sensitive tribal information ,notwithstanding any provision of the ,administrative ,procedures ,act1 consultation meetings shall be closed to the public at the request of the ,indian tribal government4 ,notwithstanding any provision of the ,freedom of ,information ,act1 all information designated by the ,indian tribe as sensitive1 such as the location of ,sacred ,sites or other details of cultural or religious practices1 shall be deleted from any public publication made as part of the consultation process or in the process of carrying out the activity4 ,once information has been designated as sensitive1 the agency will determine in consultation with the ,indian tribe who may have access to the information for the purposes of carrying out the activity4 ,,iii ,,tribal ,,sovereignty #cja4 ,tribal sovereignty 7a7 ,in general ,agencies shall recognize and respect ,indian tribal self-government and sovereignty1 honor tribal treaty and other rights1 and strive to meet the responsibilities that arise from the unique legal relationship between the ,federal ,government and ,indian tribal governments4 7b7 ,maximum tribal administrative discretion ,with respect to ,federal statutes and regulations administered by ,indian tribal governments1 the ,federal ,government shall grant ,indian tribal governments the maximum administrative discretion possible4 7c7 ,alternatives to federal regulation ,when undertaking to formulate and implement policies that have tribal implications1 agencies shall-- 7#a7 encourage ,indian tribes to develop their own policies to achieve program objectives2 7#b7 where possible1 defer to ,indian tribes to establish standards2 and 7#c7 in determining whether to establish ,federal standards1 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 tribes4 ,,iv ,,indian ,,tribal ,,waivers #dja4 ,indian tribal waivers 7a7 ,application processes ,agencies shall review the processes under which ,indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes4 7b7 ,granting maximum tribal latitude ,each agency shall1 to the extent practicable and permitted by law1 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 level4 ,maximum tribal latitude shall be granted in cases in which the proposed waiver is consistent with the applicable ,federal policy objectives and is otherwise appropriate4 7c7 ,decision time line ,each agency shall1 to the extent practicable and permitted by law1 render a decision upon a complete application for a waiver within #abj days of receipt of such application by the agency1 or as otherwise provided by law or regulation4 ,if the application for waiver is not granted1 the agency shall provide the applicant with timely written notice of the decision and the reasons therefor4 7d7 ,limitation ,this section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency4 ,v ,,judicial ,,review #eja4 ,judicial review ,an ,indian tribe alleging that the requirements of this ,act have not been met may bring a civil action in a ,united ,states district court4 ,immediately upon1 or anytime after1 the filing of such a suit1 the court may restrain the agency from any further action in furtherance of the activity until such time as the court determines that the requirements of this ,act have been met4 ,the agency shall be liable for any damages that the court may award to compensate the ,indian tribe for adverse impacts resulting from an activity conducted without consultation fulfilling the provisions of this ,act4