[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3587 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 3587
To prescribe procedures for effective consultation and coordination by
Federal agencies with federally recognized Tribal Governments regarding
Federal Government actions that impact Tribal lands and interests to
ensure that meaningful Tribal input is an integral part of the Federal
decision-making process.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 28, 2021
Mr. Grijalva (for himself, Ms. Leger Fernandez, Mr. Huffman, Mrs.
Napolitano, Mr. Cohen, Ms. Tlaib, Mr. Soto, Mr. Garcia of Illinois, and
Mr. Lowenthal) introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on Natural
Resources, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To prescribe procedures for effective consultation and coordination by
Federal agencies with federally recognized Tribal Governments regarding
Federal Government actions that impact Tribal lands and interests to
ensure that meaningful Tribal input is an integral part of the Federal
decision-making process.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Requirements,
Expectations, and Standard Procedures for Effective Consultation with
Tribes Act'' or the ``RESPECT Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and purposes.
Sec. 4. Sense of Congress.
Sec. 5. Definitions.
TITLE I--STANDARDS FOR CONSULTATION
Sec. 101. Standards for consultation.
TITLE II--CONSULTATION PROCEDURES
Sec. 201. Assessing Tribal impacts.
Sec. 202. Consultation stage.
Sec. 203. Decision stage for proposed activity.
Sec. 204. Decision stage for proposed regulatory action.
TITLE III--DOCUMENTATION AND REPORTING
Sec. 301. Documentation and reporting.
TITLE IV--IMPLEMENTATION AND TRAINING
Sec. 401. Designated agency official.
Sec. 402. Consultation policy.
Sec. 403. Training.
TITLE V--TRIBAL SOVEREIGNTY
Sec. 501. Tribal sovereignty.
Sec. 502. Sensitive Tribal information.
TITLE VI--JUDICIAL REVIEW
Sec. 601. Judicial review.
SEC. 3. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) the United States has a unique, legally affirmed
government-to-government relationship with Tribal Governments,
as set forth in the Constitution of the United States,
treaties, statutes, Executive orders, and court decisions;
(2) the United States recognizes the right of Tribal
Governments to self-govern and supports Tribal sovereignty and
self-determination;
(3) the United States, through treaties, statutes, and
historical relations, has defined a unique trust relationship
and responsibility to protect and support Tribal Governments;
(4) owing to this trust relationship, the United States has
a responsibility to consult with Tribal Governments on a
government-to-government basis when formulating policies and
undertaking activities that may have impacts on Tribal lands
and interests;
(5) procedures for such consultation should be designed and
structured to give Tribal Governments the opportunity to
provide meaningful, informed input throughout the development
and decision-making processes;
(6) increasing Federal and Tribal capacities for effective
consultation while building institutional knowledge fosters
greater efficiency and will benefit future actions;
(7) the consultation process should be formalized according
to best practices that are designed and administered by the
agency and that fulfill the legal requirements mandated by this
Act;
(8) consulting with Tribal Governments during the
formulation of long-term management plans reduces the
likelihood of project delays and increases the efficiency of
project implementations; and
(9) effective consultation demands ongoing, respectful
communication between agencies and Tribal Governments.
(b) Purposes.--The purposes of this Act are--
(1) to establish and support a process of regular,
meaningful consultation and collaboration with Tribal
Governments in the initiation of Federal activities and the
development of Federal policies and regulations that impact
Tribal lands and interests;
(2) to strengthen the United States government-to-
government relationship with Tribal Governments; and
(3) to establish minimum standard procedures to ensure the
above goals are achieved.
SEC. 4. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) consultation constitutes more than simply notifying an
Tribal Government about a planned undertaking;
(2) effective, meaningful consultation requires a two-way
exchange of information, a willingness to listen, an attempt to
understand and to genuinely consider each other's opinions,
beliefs, and desired outcomes, and a seeking of agreement on
how to proceed concerning the issues at hand; and
(3) consultation can be considered effective and meaningful
when each party demonstrates a genuine commitment to learn,
acknowledge, and respect the positions, perspectives, and
concerns of the other parties and when Federal agencies
accommodate Tribal concerns to the extent feasible and
consistent with applicable law.
SEC. 5. DEFINITIONS.
For the purposes of this Act:
(1) Activity.--The term ``activity'' means any plan,
project, or program funded in whole or in part under the direct
or indirect jurisdiction of a Federal agency, including--
(A) those carried out by or on behalf of an agency;
(B) those carried out with Federal financial
assistance;
(C) those requiring a Federal permit, license, or
approval; and
(D) those subject to state or local regulation
administered pursuant to a delegation or approval by a
Federal agency.
(2) Agency.--The term ``agency'' means any authority of the
United States that is an agency under section 551 of title 5,
United States Code.
(3) Lead agency.--The term ``lead agency'' means a
designated agency that will fulfill the collective consultation
responsibilities under this Act if more than one agency is
involved in an activity or regulatory action. Any agency that
does not designate a lead agency shall remain individually
responsible for the consultation responsibilities of that
agency under this Act.
(4) Memorandum of agreement.--The term ``memorandum of
agreement'' means a document that records the terms and
conditions agreed upon by an agency, or lead agency, and a
Tribal Government or designated Tribal Leader Task Force
through the consultation process regarding an activity or
regulatory action.
(5) New discovery.--The term ``new discovery'' means any
unexpected development that occurs during the course of an
activity, such as the discovery of a new archeological site,
unanticipated impacts on organisms or ecosystems, or the
realization of unintended consequences that may have impacts on
Tribal lands and interests.
(6) Regulatory action.--The term ``regulatory action''
means any regulation, policy, guidance, or grant funding
formula change that is proposed by an agency.
(7) Sacred site.--The term ``sacred site'' means any
geophysical or geographical area or feature that is identified
by a Tribal Government--
(A) as sacred by virtue of its established
religious significance to, or ceremonial use by, a
Tribal religion; or
(B) to be of established cultural significance.
(8) Standard method of communication.--The term ``standard
method of communication'' means the mode of communication that
the agency uses in the typical course of communicating with
persons outside the Federal Government.
(9) Standard process.--The term ``standard process'' means
a process for Federal agency and Tribal Government interactions
agreed to by both parties through consultation and certified in
a memorandum of agreement that applies to certain specified
activities or regulatory actions, or to limited categories of
activities or regulatory actions.
(10) Tribal government.--The term ``Tribal Government''
means the governing body of any Indian or Alaska Native Tribe,
band, nation, pueblo, village, community, component band or
component reservation, individually identified (including
parenthetically) in the list published most recently as of the
date of enactment of this Act pursuant to section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C.
5131).
(11) Tribal impact.--The term ``Tribal impact'' means any
Federal action that may have an impact on one or more Tribal
Governments on matters, including--
(A) Tribal cultural practices, lands, resources, or
access to traditional areas of cultural or religious
importance;
(B) Tribal treaty-protected rights;
(C) the ability of a Tribal Government to govern or
provide services to its members;
(D) a Tribal Government's formal relationship with
the Federal Government; or
(E) the consideration of the Federal Government's
trust responsibility to Tribal Governments.
(12) Tribal leader task force.--The term ``Tribal Leader
Task Force'' means a task force that is collaboratively
determined by affected Tribal Governments.
TITLE I--STANDARDS FOR CONSULTATION
SEC. 101. STANDARDS FOR CONSULTATION.
(a) Scope.--Consultation with Tribal Governments shall occur before
undertaking any proposed Federal activity or finalizing any Federal
regulatory action that may have Tribal impacts. Additionally,
consultation with Tribal Governments 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 1151 of title 18, United
States Code, but is not limited to activities on such lands.
(b) Limitation.--Nothing in this Act shall--
(1) 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 Act; or
(2) preclude an agency from additional consultation that
complies with agency regulations for consultation, advances
agency consultation practices, or supports agency efforts to
build or strengthen government-to-government relationships with
Tribal Governments.
TITLE II--CONSULTATION PROCEDURES
SEC. 201. ASSESSING TRIBAL IMPACTS.
As early as possible in the planning stage of an activity or a
regulatory action, the agency, or lead agency, shall--
(1) prepare a Tribal Impact Statement that identifies any
potential Tribal impacts of the proposed activity or regulatory
action. At a minimum, the Tribal Impact Statement shall include
the scope of the activity or regulatory action being
considered, including any geographic areas important to Tribal
Governments that might be affected, as well as a list of all
affected Tribal Governments;
(2) make a good faith effort to identify areas that contain
sacred sites important to Tribal Governments, whether such
sacred sites are explicitly known to an agency or not; and
(3) publish the completed Tribal Impact Statement in the
Federal Register, excluding all information designated as
sensitive by a Tribal Government pursuant to section 502,
before any further action on the proposed activity or
regulatory action.
SEC. 202. CONSULTATION STAGE.
(a) Initial Consultation Outreach.--The agency, or lead agency,
shall--
(1) transmit, via the agency's standard method of
communication, a formal request for a consultation meeting,
along with along with a copy of the proposed activity or
regulatory action as well as copy of the Tribal Impact
Statement as prepared according to section 201, to each
affected Tribal Government identified in the Tribal Impact
Statement. In the case of a proposed activity, the documents
shall also be transmitted to relevant Tribal governmental
agencies (including the Tribal Historic Preservation Officer or
cultural resource manager), and relevant non-Tribal
stakeholders (including the State Historic Preservation Officer
and local governments that have jurisdiction on any affected
land via agreement with the agency);
(2) at the request of an affected Tribal Government,
transmit, via the agency's standard method of communication, a
copy of the Tribal Impact Statement and the letter requesting a
consultation meeting to non-governmental Tribal stakeholders;
(3) not request consultation with non-governmental Tribal
stakeholders without the written consent of the affected Tribal
Government;
(4) follow up within 5 business days to ensure receipt of
the documents by all intended recipients; and
(5) if the documents were not received by any of the
intended recipients, retransmit all materials via a form of
communication that is suitable to the recipient.
(b) Non-Response to Consultation Outreach.--If, after a good faith
effort, the agency, or lead agency, fails to engage an affected Tribal
Government in the consultation process, the agency, or lead agency, may
conclude its consultation efforts by providing the Tribal Government
with a written notification and explanation for its decision, signed by
the head of the agency, or lead agency, which shall be made part of the
official consultation record as described in section 301(a).
(c) Meeting Arrangements.--
(1) The agency, or lead agency, shall negotiate with each
affected Tribal Government to determine the format, agenda, and
goals of a consultation meeting, and shall keep thorough
documentation of all steps taken to engage the affected Tribal
Government in consultation meetings.
(2) In appropriate circumstances, affected Tribal
Governments may elect to form a Tribal Leader Task Force, to
aid in consultation on activities that are regional in scope or
that affect multiple Tribal Governments. To the maximum extent
possible, the Tribal Leader Task Force shall represent a cross-
section of Tribal interests with respect to the proposed
activity or regulatory action. Affected Tribal Governments that
do not elect to join a Tribal Leader Task Force shall be
consulted separately.
(d) Consultation Meeting Requirements.--A consultation meeting
shall--
(1) begin with confirmation of the format, agenda, and
goals of the meeting, with adequate time scheduled for
introductions and any ceremonial proceedings;
(2) be structured to allow for meaningful and respectful
interaction throughout the meeting among all meeting
participants; and
(3) conclude with planning for the next meeting, if
necessary, as well as confirmation of the method of any
potential interim communications between all parties
participating in the consultation.
(e) Conclusion of Consultation With a Memorandum of Agreement.--
(1) Except as provided by subsection (b), subsection (f),
and subsection (g), consultation shall conclude only upon the
execution of a memorandum of agreement signed by the head of
the agency, or lead agency, and the head of the affected Tribal
Government or the members of the designated Tribal Leader Task
Force.
(2) The memorandum of agreement--
(A) may address multiple activities or regulatory
actions if the activities or regulatory actions are
similar and repetitive in nature, or are multistate or
regional in scope, or where routine management
activities are undertaken at Federal installations,
facilities, or other land management units;
(B) may establish standard processes for certain
categories of activities and regulatory actions
determined through consultation and defined in the
memorandum of agreement;
(C) shall, in the case of a proposed activity--
(i) include a provision for monitoring and
reporting on the implementation of the
activity;
(ii) include provisions for reconsideration
if the activity has not been completed within a
specified time; and
(iii) include provisions to address new
discoveries, which may include halting the
activity and returning to the consultation
stage.
(3) The signed memorandum of agreement may be amended at
any time by the joint approval of all signatories.
(f) Conclusion of Consultation Without a Memorandum of Agreement.--
(1) The agency, or lead agency, shall make a good faith
effort through sustained interaction and collaboration to reach
a consensus resulting in a memorandum of agreement.
(2) If, after a good faith effort, the agency, or lead
agency, determines that further consultation will not be
productive, it may conclude consultation by providing the
Tribal Government with a written notification and explanation
for its decision, including identification of any legal,
policy, or factual barriers that prevented the agency from
reaching agreement with the affected Tribal Government, signed
by the head of the agency, or lead agency, which shall be made
part of the official consultation record as described in
section 301(a).
(g) Tribal Withdrawal From Consultation.--An affected Tribal
Government may at any point decide to withdraw from the consultation
process. In such case, the agency, or lead agency, shall provide the
affected Tribal Government with the opportunity to submit a written
statement, explanation, or comment on the consultation proceedings that
will become part of the official consultation record as described in
section 301(a).
SEC. 203. DECISION STAGE FOR PROPOSED ACTIVITY.
(a) Proposal Document.--Upon completion of the consultation stage
pursuant to section 202, the agency, or lead agency, shall--
(1) compile a proposal document consisting of the plan for
the proposed activity, its anticipated Tribal impacts, and any
signed memorandum of agreement;
(2) include sufficient supporting documentation to the
extent permitted by law to enable any reviewing parties to
understand its basis;
(3) transmit, via the agency's standard method of
communication, a copy of the proposal document to the affected
Tribal Governments, including those that withdrew from the
process;
(4) follow up within 5 business days to ensure receipt of
the proposal document by all intended recipients;
(5) if the proposal document was not received by an
intended recipient, retransmit all material via a form of
communication that is suitable to the recipient; and
(6) after the verified receipt of the proposal document by
all intended recipients, the proposal document shall be
published in the Federal Register, excluding all information
designated as sensitive by a Tribal Government pursuant to
section 502.
(b) Public Comment Period.--The agency, or lead agency, shall
provide a period of not less than 90 days after publication of the
proposal document in the Federal Register for public comment. A 30-day
extension of the 90-day period shall be automatically granted upon
request by an affected Tribal Government.
(c) Preliminary Decision Document.--After expiration of the public
comment period pursuant to subsection (b), the agency, or lead agency,
shall prepare a preliminary decision letter, signed by the head of the
agency, or lead agency, that shall--
(1) state the decision to proceed or not proceed with the
activity;
(2) state the rationale for the decision;
(3) list any changes to the proposed activity made in
response to the comments filed pursuant to subsection (b);
(4) specifically address any points where the decision
conflicts with the request of an affected Tribal Government,
including a detailed explanation of why the request was
disregarded;
(5) transmit, via the agency's standard method of
communication, a copy of the preliminary decision letter to the
affected Tribal Governments, including those that withdrew from
the process;
(6) follow up within 5 business days to ensure receipt of
the preliminary decision letter by all intended recipients; and
(7) if the preliminary decision letter was not received by
an intended recipient, retransmit the material via a form of
communication that is suitable to the recipient.
(d) Tribal Response Period.--The agency, or lead agency, shall
provide a period of no less than 45 days after issuance of the
preliminary decision letter for a response by an affected Tribal
Government.
(e) Final Decision Document.--After expiration of the Tribal
Response Period pursuant to subsection (d), the agency, or lead agency,
shall prepare a letter stating the final decision of the agency, signed
by the head of the agency, or lead agency, that shall--
(1) state the decision to proceed or not proceed with the
activity;
(2) state the rationale for the decision;
(3) list any changes to the preliminary decision in
response to comments received from an affected Tribal
Government pursuant to subsection (d);
(4) specifically address any points where the final
decision conflicts with the request of an affected Tribal
Government, including a detailed explanation of why the request
was disregarded;
(5) transmit, via the agency's standard method of
communication, a copy of the final decision letter to the
affected Tribal Governments, including those that withdrew from
the process;
(6) follow up after 5 business days to ensure receipt of
the final decision letter by all intended recipients; and
(7) if the final decision letter was not received by an
intended recipient, retransmit the material via a form of
communication that is suitable to the recipient.
(f) Publication of Letter.--The agency shall make public the final
decision letter, excluding all information designated as sensitive by a
Tribal Government pursuant to section 502.
SEC. 204. DECISION STAGE FOR PROPOSED REGULATORY ACTION.
(a) Decision Document.--Upon completion of the consultation stage
pursuant to section 202, the agency, or lead agency, shall prepare a
decision letter, signed by the head of the agency, or lead agency, that
shall--
(1) state the decision to proceed or not proceed with the
proposed regulatory action;
(2) state the rationale for the decision;
(3) list any changes to the proposed regulatory action made
at the request of an affected Tribal Government during the
consultation process as outlined in section 202;
(4) specifically address any points where the decision
conflicts with the request of an affected Tribal Government,
along with a detailed explanation of why the request was
disregarded;
(5) transmit, via the agency's standard method of
communication, a copy of the decision letter to the affected
Tribal Governments, including those that withdrew from the
process;
(6) follow up within 5 business days to ensure receipt of
the decision letter by all intended recipients; and
(7) if the decision letter was not received by an intended
recipient, retransmit the material via a form of communication
that is suitable to the recipient.
(b) Publication in Federal Register.--The decision letter shall be
published in the Federal Register alongside the final decision on the
regulatory action, excluding all information designated as sensitive by
a Tribal Government pursuant to section 502.
TITLE III--DOCUMENTATION AND REPORTING
SEC. 301. DOCUMENTATION AND REPORTING.
(a) Official Consultation Record.--The agency, or lead agency,
shall--
(1) keep an official consultation record that allows
accurate tracking of the process so that the agency and all
consulting parties can correct any errors or omissions, and
provides an official record of the process that can be referred
to in any litigation that may arise;
(2) document all efforts to initiate consultation as well
as documenting the process once it has begun, such as
correspondence, telephone logs, and emails;
(3) keep notes so that the consultation record documents
the content of consultation meetings, site visits, and phone
calls in addition to information about dates and who
participated;
(4) include all documentation in the official consultation
record; and
(5) ensure that all information designated as sensitive by
a Tribal Government pursuant to section 502 is kept
confidential.
(b) Payment for Tribal Documentation Work.--If the agency, or lead
agency, asks a Tribal Government for specific information or
documentation that in any way fulfills the duties of the agency in a
role similar to that of a consultant or contractor, then the agency, or
lead agency, must pay for such services, if so requested by the Tribal
Government, as it would for any private consultant or contractor.
(c) Report to Congress.--Each agency shall submit a biennial report
on its consultation activities to Congress, including outcomes.
TITLE IV--IMPLEMENTATION AND TRAINING
SEC. 401. DESIGNATED AGENCY OFFICIAL.
No later than 90 days after the date of the enactment of this Act--
(1) the head of each agency shall designate an official
with principal responsibility for the agency's implementation
of this Act; and
(2) each bureau or office within the agency shall designate
one or more officials with the responsibility to work with the
principal agency official on implementation of this Act.
SEC. 402. CONSULTATION POLICY.
No later than 180 days after enactment of this Act, the designated
agency official shall submit to the Office of Management and Budget a
description of the agency's consultation policy, including all
designated agency officials, in conformity with this Act.
SEC. 403. TRAINING.
Each agency shall design training for staff aimed at improving the
agency's capacity for interacting with Tribal Governments and executing
the consultation process. The training shall--
(1) promote consultation, communication, collaboration, and
other interactions with Tribal Governments;
(2) outline and reinforce the agency duties concerning
Tribal interests; and
(3) strengthen the understanding of the United States
government-to-government relationship with Tribal Governments.
TITLE V--TRIBAL SOVEREIGNTY
SEC. 501. TRIBAL SOVEREIGNTY.
(a) In General.--Agencies shall recognize and respect 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 Tribal Governments.
(b) Maximum Tribal Administrative Discretion.--With respect to
Federal statutes and regulations administered by Tribal Governments,
the Federal Government shall grant Tribal Governments the maximum
administrative discretion possible.
(c) Alternatives to Federal Regulation.--With respect to the
formulation and implementation of policies that have an impact on
Tribal matters, agencies shall--
(1) encourage Tribal Governments to develop their own
policies to achieve program objectives;
(2) when possible, defer to Tribal Governments to establish
standards; and
(3) in determining whether to establish Federal standards,
consult with Tribal Governments 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 Tribal Governments.
SEC. 502. SENSITIVE TRIBAL INFORMATION.
Notwithstanding chapter 7 of title 5, United States Code (commonly
known as the Administrative Procedure Act), consultation meetings shall
be closed to the public at the request of the Tribal Government.
Notwithstanding section 552 of title 5, United States Code (commonly
known as the Freedom of Information Act), all information designated by
the Tribal Government as sensitive, such as the location of sacred
sites or other details of cultural or religious practices, shall be
deleted from any public publication made as part of the consultation
process or in the process of carrying out the activity. Once
information has been designated as sensitive, the agency will determine
in consultation with the Tribal Government who may have access to the
information for the purposes of carrying out the activity.
TITLE VI--JUDICIAL REVIEW
SEC. 601. JUDICIAL REVIEW.
A Tribal Government may seek judicial review of a determination of
an agency under this Act in accordance with subchapter II of chapter 5
of title 5, United States Code, and chapter 7 of title 5, United States
Code (commonly known as the Administrative Procedure Act), if the
Tribal Government has exhausted all other administrative remedies
available to the Tribal Government.
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