Biden Administration Announces Tribal Consultation Policy

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The Biden administration has highlighted Tribal sovereignty and the federal trust responsibility to Tribal Nations as the cornerstones of its federal Indian policy. The involvement of Native American tribes is also a component of the Biden administration’s environmental justice initiatives. Accordingly, on January 26, the Biden administration issued a “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships” (Presidential Memorandum), which seeks to prioritize regular, meaningful, and robust federal consultation with Tribal Nations. According to the Presidential Memorandum, “History demonstrated that we best serve Native American people when Tribal governments are empowered to lead their communities, and when federal officials speak with and listen to Tribal leaders in formulating federal policy that affects Tribal Nations.”

The Presidential Memorandum reaffirms and relies upon a similar Obama-era policy and Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments), which charged all executive departments and agencies with engaging in consultation with Tribal officials in the development of federal policies that have Tribal implications. The Presidential Memorandum requires the head of each agency to develop a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175 and submit this plan within 90 days of the date of the Presidential Memorandum to the director of the Office of Management and Budget. Each agencies’ plan is directed to be developed after consultation by the agency with Tribal Nations and Tribal officials as defined in Executive Order 13175. According to the Presidential Memorandum, each agency must submit progress reports on proposed actions within 270 days and annually thereafter.

The Presidential Memorandum is a component of a broader initiative to strengthen relationships with Tribal Nations, which includes the historic confirmation of Rep. Deb Haaland as secretary of the Department of the Interior. Secretary Haaland is the first Native American to hold a Cabinet post.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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