Tribal Consultation:

Additional Federal Actions Needed for Infrastructure Projects

GAO-19-22: Published: Mar 20, 2019. Publicly Released: Apr 19, 2019.

Additional Materials:

Contact:

Anne-Marie Fennell
(202) 512-3841
fennella@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Federal agencies are required, at times, to consult with tribes on infrastructure projects like pipelines that may harm tribal natural and cultural resources.

According to tribal and agency officials, there are several factors making these consultations less effective. For example:

Some tribal representatives held the view that agencies did not consider their input and that consultations started too late.

Agencies reported difficulty obtaining the contact information needed to start consulting and other challenges.

Our recommendations included developing a government-wide system to identify and notify tribes of consultations.

 

Windmill project

Windmill project

Additional Materials:

Contact:

Anne-Marie Fennell
(202) 512-3841
fennella@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

Based on interviews with officials from 57 tribes and 21 federal agencies, as well as comments submitted by 100 tribes in 2016 on tribal consultation for infrastructure projects, GAO identified key factors that tribes and agencies believe hinder effective consultation on infrastructure projects.

Some of the key factors identified by tribes included

agencies initiating consultation late in project development stages,

agencies not adequately considering tribal input when making decisions about proposed infrastructure projects, and

agencies not respecting tribal sovereignty or the government-to-government relationship between federally recognized tribes and the federal government.

Some of the key factors identified by the agencies included

challenges in obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities;

agency resource constraints to effectively support consultation; and

difficulties coordinating with other federal agencies when there are multiple agencies involved in particular infrastructure projects.

The 21 agencies in GAO's review have taken some steps to facilitate tribal consultation, but the extent to which these steps have been taken varied by agency. For example, GAO found the following:

Three agencies have developed systems to help identify tribes that should be consulted on infrastructure projects, and 18 agencies have developed systems to help notify tribes of consultation opportunities. For instance, the Department of Housing and Urban Development developed a system that aims to identify over 500 tribes' geographic areas of interest and includes their contact information.

The Federal Permitting Improvement Steering Council (FPISC)—which was created to make the process for federal approval for certain (large) infrastructure projects more efficient—recommended in its fiscal year 2018 best practices report the development of a central federal information system of tribal areas of interest and points of contact for consultation. In July 2018, the Department of Housing and Urban Development submitted a proposal to the FPISC to expand the department's system in response to the FPISC recommendation. Although the FPISC has discussed the proposal, as of October 2018 it had not yet decided whether and how to respond to it. If the FPISC decides to move forward and develop a centralized system, a plan with well-defined goals and clear roles and responsibilities, among other things, will provide greater assurance that a centralized system will be implemented in accordance with successful practices for developing government websites.

Five agencies' tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered, but 16 agencies do not call for such communication in their policies.


Why GAO Did This Study

Federal agencies are required in certain circumstances to consult with tribes on infrastructure projects and other activities, such as permitting natural gas pipelines, which may affect tribal natural and cultural resources. GAO was asked to review federal agencies' processes for consulting with tribes on infrastructure.

This report examines, among other things, key factors tribes and selected federal agencies identified that hinder effective consultation on infrastructure projects and steps agencies have taken to facilitate tribal consultation. GAO examined laws, regulations, and policies and interviewed officials from 21 federal agencies that are generally members of the FPISC. GAO also summarized comments that 100 tribes submitted to federal agencies in 2016 to provide input on tribal consultation for infrastructure projects and interviewed available officials from 57 tribes and eight tribal organizations. Tribal and agency views are not generalizable.

What GAO Recommends

GAO is making one matter for congressional consideration and 22 specific recommendations to 17 of 21 agencies and the FPISC on actions they can take to improve tribal consultation, including that the FPISC develop a plan for establishing a central federal information system and that agencies establish or update their policies to better communicate their consideration of tribal input. The agencies to which GAO made recommendations generally agreed with them.

For more information, contact Anne-Marie Fennell at (202) 512-3841 or fennella@gao.gov.

Matter for Congressional Consideration

  1. Status: Open

    Comments: When we determine what steps the Congress has taken, we will provide updated information

    Matter: Congress should consider taking legislative action to resolve the long-standing issues between the Corps and the Advisory Council on Historic Preservation over the Corps Regulatory Program's procedures for implementing section 106 of the National Historic Preservation Act. (Matter for Consideration 1)

Recommendations for Executive Action

  1. Status: Open

    Comments: As of April 2020, the Department of Energy plans to clarify and consolidate its consultation policies and practices for consultation with Alaska Native Corporations by June 2021.

    Recommendation: The Secretary of Energy should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with Alaska Native Corporations (ANC) on the same basis as Indian tribes under Executive Order 13175. (Recommendation 1)

    Agency Affected: Department of Energy

  2. Status: Open

    Comments: In December 2019, EPA created a draft document, Guiding Principles for Consulting with Alaska Native Claims Settlement Act Corporations, and issued it for consultation with Alaska Native Corporations (ANCs). The draft guiding principles seek to clarify EPA's consultation and coordination practices with ANCs. Additionally, according to agency officials, an EPA working group is in the process of developing an internal, best practices implementation guide. As of April 2020, EPA expects to finalize these guidance documents in 2020

    Recommendation: The Administrator of the Environmental Protection Agency should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 2)

    Agency Affected: Environmental Protection Agency

  3. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Housing and Urban Development should develop a documented policy or clarify existing policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 3)

    Agency Affected: Department of Housing and Urban Development

  4. Status: Closed - Implemented

    Comments: In September 2019, the Fish and Wildlife Service indicated that it had determined that utilizing the Department of the Interior's Policy on Consultation with Alaska Native Claims Settlement Act Corporations would be the most effective and timely mechanism to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175.

    Recommendation: The Director of the Fish and Wildlife Service should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 4)

    Agency Affected: Department of the Interior: United States Fish and Wildlife Service

  5. Status: Open

    Comments: In February 2019, the Department of Homeland Security provided GAO documentation supporting a planned time frame of March 2020 for developing and updating its consultation policy to implement the statutory requirement to consult with ANCs in response to this recommendation. We plan to close the recommendation after reviewing documentation that the policy has been updated.

    Recommendation: The Secretary of Homeland Security should establish a time frame for developing or updating policy to implement the statutory requirement to consult with ANCs on the same basis as Indian tribes under Executive Order 13175. (Recommendation 5)

    Agency Affected: Department of Homeland Security

  6. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Assistant to the Secretary of Agriculture for Rural Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on proposed infrastructure projects. (Recommendation 6)

    Agency Affected: Department of Agriculture: Rural Development

  7. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Director of Civil Works of the Corps should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 7)

    Agency Affected: Department of Defense: Department of the Army: Corps of Engineers: Civil Works

  8. Status: Open

    Comments: As of September 2019, Bureau of Ocean Energy Management (BOEM) plans to amend its tribal consultation policy with policies and procedures for communicating with tribes after consultation by December 2020.

    Recommendation: The Director for the Bureau of Ocean Energy Management should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 8)

    Agency Affected: Department of the Interior: Bureau of Ocean Energy Management

  9. Status: Closed - Implemented

    Comments: In July 2020, the Bureau of Reclamation reviewed and modified its consultation protocol--entitled Working With Indian Tribal Governments: Consultation, Cultural Awareness, and Protocol Guidelines--to provide guidance to staff on communicating with tribes about how tribal consultation was considered in agency decisions. Specifically, the protocol directs staff to notify tribes in writing by mailed letter and e-mail when an agency decision is made following a consultation. The guidance states that the letter should include an explanation of the agency's decision and any decisions or changes that were made as a result of the consultation. According to the guidance, the letter should also include an explanation to address situations where the tribe's desired outcome cannot be accommodated.

    Recommendation: The Commissioner of the Bureau of Reclamation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 9)

    Agency Affected: Department of the Interior: Bureau of Reclamation

  10. Status: Open

    Comments: As of April 2020, the Department of Energy indicated that it plans to document policies for communicating about how input from tribal consultation was considered in agency decisions on infrastructure projects by June 2021.

    Recommendation: The Secretary of Energy should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 10)

    Agency Affected: Department of Energy

  11. Status: Closed - Implemented

    Comments: In July 2020, the Federal Communications Commission (FCC) issued internal guidance for staff on how agency officials are to communicate with tribes about how the FCC collects and considers tribal input in agency decision-making on proposed infrastructure projects. The guidance outlines steps for communicating with tribes on decision-making for proposed projects requiring FCC approval under specific circumstances. For example, FCC is involved in cases where the project applicant and tribe disagree on whether the applicant has met obligations to identify a proposed project's impacts of concern to a tribe or have substantive disagreement on the project's potential to affect a historic property of significance to a tribe. The guidance states that FCC staff make determinations after considering evidence provided by both parties and will notify both parties of a final decision. In cases where there is substantive disagreement, the guidance further notes that FCC will directly communicate with a tribe to explain how its input was taken into consideration in determining what is required for the project to proceed.

    Recommendation: The Chairman of the Federal Communications Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 11)

    Agency Affected: Federal Communications Commission

  12. Status: Closed - Implemented

    Comments: In July 2019, the Federal Emergency Management Agency (FEMA) updated its tribal consultation policy (FEMA Policy No. 1001-002-02) to include a protocol with steps for conducting tribal consultation on agency actions that have tribal implications. The protocol outlines four phases of tribal consultation, including a follow-up phase for communicating with tribes after consultation. Specifically, the updated policy states that after FEMA consults with tribal officials and their appointed designees, FEMA is to consider the input received during the consultation period and incorporate that input into the agency's decision-making process. FEMA is then to follow up with all tribal officials who were engaged in the consultation and communicate how their input was used to inform the agency's final decision.

    Recommendation: The Administrator of the Federal Emergency Management Agency should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 12)

    Agency Affected: Department of Homeland Security: Directorate of Emergency Preparedness and Response: Federal Emergency Management Agency

  13. Status: Closed - Implemented

    Comments: Effective November 2019, the Federal Energy Regulatory Commission revised its Policy Statement on Consultation with Indian Tribes in Commission Proceedings by adding language stating that the Commission will use the agency's environmental and decisional documents to communicate how tribe's input from consultation was considered in agency decisions on infrastructure projects. In addition, the Commission added specific reference to treaty rights to the policy statement, and consultation with Alaska Native Corporations (ANCs) on the same basis as Indian tribes under Executive Order 13175.

    Recommendation: The Chairman of the Federal Energy Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 13)

    Agency Affected: Federal Energy Regulatory Commission

  14. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Administrator of the Federal Highway Administration should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 14)

    Agency Affected: Department of Transportation: Federal Highway Administration

  15. Status: Closed - Implemented

    Comments: In October 2018, the Fish and Wildlife Service (FWS) updated its Tribal Consultation Handbook to include general guidance regarding communication after consultation. Specifically, the handbook recommends agency and tribal officials consider developing consultation protocols that include concurrence on a conclusion process with steps for communicating after consultation. For example, the handbook recommends stipulating in consultation protocols that FWS officials should notify tribes of its decision on a particular action through formal written communication from a senior FWS official, to the most senior tribal official involved in the consultation. In addition, the guidance recommends stipulating that written notification should include discussion of the agency's basis for its decision, how the final decision was or was not able to accommodate tribal concerns raised during the consultation process. (Note: In our March 2019 report, we reviewed agencies' tribal consultation policies updated as of July 2018.)

    Recommendation: The Director of the Fish and Wildlife Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 15)

    Agency Affected: Department of the Interior: United States Fish and Wildlife Service

  16. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Homeland Security should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 16)

    Agency Affected: Department of Homeland Security

  17. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Housing and Urban Development should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 17)

    Agency Affected: Department of Housing and Urban Development

  18. Status: Closed - Implemented

    Comments: In December 2019, the National Park Service (NPS) updated its annual tribal consultation reporting template to include a request for information from its parks and programs about whether they have communicated with tribes about how tribal input from consultation was considered in NPS decisions, and the manner in which the communication occurred (e.g., in writing, in person, or other). The updated template also states that the conclusion of the consultation process requires communicating with tribes about the results of the process. NPS implemented use of the updated template as part of its collection of information in 2020 on NPS consultation activities conducted in fiscal years 2018 and 2019. Information from this template was reported in a summary report on NPS partnerships and consultations with tribes in June 2020.

    Recommendation: The Director for the National Park Service should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 18)

    Agency Affected: Department of the Interior: National Park Service

  19. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman of the Nuclear Regulatory Commission should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 19)

    Agency Affected: Nuclear Regulatory Commission

  20. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of Transportation should document in the agency's tribal consultation policy how agency officials are to communicate with tribes about how tribal input from consultation was considered in agency decisions on infrastructure projects. (Recommendation 20)

    Agency Affected: Department of Transportation

  21. Status: Closed - Implemented

    Comments: In March 2020, the Advisory Council on Historic Preservation (ACHP) and the Department of Housing and Urban Development (HUD), in consultation with the Federal Permitting Improvement Steering Council, Office of the Executive Director (FPISC-OED), developed a written implementation and communication plan for establishing a central information system for identifying and notifying tribes on matters related to infrastructure projects. The plan, developed with input from FPISC members, outlines goals of providing accurate tribal contact information in one central database to facilitate tribal consultation and steps for ensuring long-term maintenance of the system by utilizing and adapting HUD's existing Tribal Directory Assessment Tool (TDAT). Among other things, the plan identifies roles and responsibilities for FPISC members in establishing and maintaining the system. For example, the plan identifies HUD as the day-to-day manager of the system and responsible for implementing system improvements. In addition, the plan describes steps HUD, ACHP and FPISC-OED will take to provide communication and training about the system to federal, state, and local governments and federally recognized tribes. The plan also includes cost estimates for system improvements and maintenance, and further identifies potential short-term and long-term funding sources to support these activities.

    Recommendation: The Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to develop a plan to establish a central information system for identifying and notifying tribes that includes (1) well-defined goals for the system, (2) specifies FPISC members' roles and responsibilities for establishing and maintaining the system given existing statutory authority, and (3) identifies resources required for developing and maintaining the system. (Recommendation 21)

    Agency Affected: General Services Administration: Federal Permitting Improvement Steering Council

  22. Status: Closed - Implemented

    Comments: In March 2020, the Advisory Council on Historic Preservation (ACHP) and the Department of Housing and Urban Development (HUD), in consultation with the Federal Permitting Improvement Steering Council, Office of the Executive Director (FPISC-OED), developed a written implementation and communication plan for utilizing and adapting HUD's existing Tribal Directory Assessment Tool (TDAT) as a centralized system for identifying and notifying tribes on matters related to infrastructure projects. Among other things, the plan outlines steps for communicating with tribes about TDAT and involving tribes to help maintain accurate tribal data in the system. For example, the plan describes HUD as leading communication and messaging responsibilities to tribes with support from ACHP and FPISC-OED about TDAT. HUD and ACHP, with assistance from FPISC-OECD, will also engage FPISC members to ensure there is consistent message on TDAT conveyed to tribes from all levels of the federal government. In addition, the plan describes proposed enhancements to TDAT, including the addition of a protocol box where tribes can add preferences on communication methods and points of contact, that will help ensure agencies are outreaching to the correct tribal contacts using preferred communication methods.

    Recommendation: As a central information system is established, the Executive Director of the FPISC Office of the Executive Director should work collaboratively with FPISC members to consider how they will communicate with and involve tribes to help maintain accurate tribal data in the system. (Recommendation 22)

    Agency Affected: General Services Administration: Federal Permitting Improvement Steering Council

 

Explore the full database of GAO's Open Recommendations »

Oct 6, 2020

Sep 23, 2020

Aug 6, 2020

Aug 5, 2020

Jul 23, 2020

Jul 14, 2020

Jun 25, 2020

May 29, 2020

Looking for more? Browse all our products here