Effective Native American Tribal Consultation on Infrastructure and Other Projects

"Tribal consultation" refers to the Federal government's legal obligation to consult with Native American and Alaska Native tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of Federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in. The project need not be on tribal land for consultation to be mandatory. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other Federal laws, require the lead Federal department or agency on each project to consult with all affected Indian tribes, nations, pueblos, and rancherias on a government-to-government basis. This is true whether the project is on public or private land. The rule of thumb is that if a project needs Federal permission to proceed, the Federal agency considering it must identify the Indian tribes in the project area and consult with them in a meaningful fashion before making any final decisions. Failure to do so may result in the tribe suing the Federal agency in U.S. District Court.  

Energy and mining companies, utilities, highway authorities, telecommunications providers, and other project proponents and their supporters are frequently caught off-guard by the tribal consultation requirement, particularly in parts of the United States located far away from the nearest Indian reservation. Of the 573 Native American and Alaska Native tribes officially recognized by the Federal government, about 325 retain a land base of some kind, often in Federal trust status, meaning the land cannot be sold or transferred to others without Congressional approval. Yet for the project proponent, locating these Indian reservation boundaries is only a first step. The proponent must also be aware of each tribe's original homelands – tribes' "aboriginal territory." Both NEPA and NHPA respect that tribal governments, which have existed since time immemorial and predate the founding of the United States, may retain ongoing cultural and spiritual connections to their original homelands, which in turn may be distant from their current reservation lands. The Federal agency charged with reviewing a given project faces the challenge of determining which tribes may be affected by the project, and providing an opportunity for those tribes to engage in meaningful consultation with the federal government when the project affects them. 

Learning Objectives:

1. Define "meaningful" Native American and Alaska Native tribal consultation under Federal law

2. Determine when lack of meaningful consultation enables tribes to sue federal agencies in order to stop or delay projects

3. Identify what steps project proponents can take to support the tribal consultation process and reduce risk