As discussed throughout this series, mine permitting in the United States is a complicated process. The permitting authorities are a mix of state and federal agencies, and that mix varies depending on where the mine is located. In many cases, the legal framework for permitting includes a requirement to survey the mine area for cultural and historic resources as well as a consultation with those Native Americans who have historic connections to the mine area.
Whenever a mining project requires a federal permit, the project conducts a review of historic and cultural resources under Section 106 of the National Historic Preservation Act (“NHPA”), typically in coordination with historic preservation officers from tribes and states. The NHPA process includes consultation with tribes and other affected Native American interests. Similarly, if the mining project is subject to NEPA (discussed in our earlier installment: The Impact of the National Environmental Policy Act), the NEPA process includes tribal consultation. Most state mine permitting processes also include a similar consultation requirement. Finally, President Clinton issued an Executive Order in November 2000 setting out a framework for all federal agencies to consult with Indian tribal governments on any federal policies that have tribal implications. That Executive Order has proved durable across presidential administrations, and in November of 2002, the Biden administration issued uniform standards for Tribal consultation (the “Uniform Standards”), drawing on President Clinton’s Executive Order.
Tribal consultation is different in kind from other interactions with stakeholders affected by a proposed mining project. As noted in the Uniform Standards:
Tribal consultation is a two-way, Nation-to-Nation exchange of information and dialogue between official representatives of the United States and of Tribal Nations regarding Federal policies that have Tribal implications. Consultation recognizes Tribal sovereignty and the Nation-to-Nation relationship between the United States and Tribal Nations and acknowledges that the United States maintains certain treaty and trust responsibilities to Tribal Nations.
Federally recognized Indian Tribes are sovereigns, and the consultation between a permitting authority and a Tribe is a government-to-government consultation.1 Given that the consultation process rests on Tribal sovereignty, that consultation process cannot be diminished in pursuit of efficiency. And the consultation process can slow the permitting process.2
Given that the consultation process rests on Tribal sovereignty, that consultation process cannot be diminished in pursuit of efficiency. And the consultation process can slow the permitting process.
More specifically, the Uniform Standards require development of a notice of consultation with sufficient information to “facilitate meaningful consultation,” a series of meetings within 30 days’ notice of the meeting, and an opportunity for written comment (with another 30 day period).3 The agency must also prepare a written record of the consultation process.4 That process will take time.
Through this process, a federal agency must give “meaningful consideration” to information provided by a Tribe and will seek consensus or a mutually desired outcome with the Tribe.5
It is unlikely that a mining project would be permitting on lands held in trust for a tribe where the tribe objected to that project. But the consultation process is not limited to lands within a tribe’s reservation. The lands dedicated to tribal reservations are typically a small portion of the lands historically used by a tribe and its people. As a result, lands outside the reservation may include both historic cultural resources and areas still under active use by the tribe. The consultation process is designed to assure that a permitting authority is fully aware of the impacts of a project to areas of interest to a tribe, and to address and mitigate those issues through the permitting process.
The most effective way to assure timely and effective tribal consultation is to start the process as early as possible, perhaps even before exploration.
The most effective way to assure timely and effective tribal consultation is to start the process as early as possible, perhaps even before exploration. The permitting agency is responsible for meeting legal requirements for consultation, and a project proponent may need to provide support and resources to governmental agencies to assure that the agency has the capacity to manage the consultation process. But in addition to the agency process, a project proponent should proactively develop lines of communication and effective strategies to address concerns raised through those lines of communication.
One potential cause of delay is lack of information about the sites and features that are to be considered and discussed. Absent early detailed conversations with the tribe, it will be difficult for the project proponent or the permitting agency to know what matters to the tribe. Also, tribes are concerned about publicizing the location of historic cultural site because artifact hunters may despoil those sites. Engagement is important. Regulation or guidance documents may specific a certain number of meetings or a set time frame for consultation. But a successful and timely consultation process will almost certainly engender a deeper level of engagement.
1 Vanessa L. Ray-Hodge & Sarah M. Stevenson, “Examining the Legal Implications of Government-to-Government Tribal Consultation and Off-Reservation Development,” Indian Law and Natural Resources: The Basics and Beyond 11-1 (Rocky Mt. Min. L. Fdn. 2017)
2 Kevin K. Washburn, “The March of Co-Management--The Expanding Role of Tribes,” 69 Nat. Resources &
Energy L. Inst. 32-1, 32-11 (2023).
3 Id. at § 6.
4 Id. at § 7.
5 Id.
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