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ACUS committee emphasizes tribal consultation’s government‑to‑government limits and need for agency expertise
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Summary
During deliberations on draft recommendations, the ACUS Rulemaking Committee highlighted that tribal consultation carries a distinct legal meaning, needs agency expertise and preparation of principals, and may require additional resources and FOIA/confidentiality protections.
Committee members and consultants devoted extended discussion to tribal consultation, stressing that it is a government‑to‑government process with specific legal implications and management requirements.
Consultant Seth Davis told the committee that tribal consultation is distinct in law and practice and is expressly recognized by Executive Order 13175. "Tribal consultation refers to a form of nation to nation relations and communication that involves formal dialogue between tribal leaders and federal decision makers," he said, and emphasized that many agencies have developed policies but that implementation varies.
Members asked the consultants to make the tribal recommendations more actionable. They requested clearer language on when an agency must designate a tribal consultation official or otherwise ensure coordination and urged that designated staff have expertise in federal Indian law and the trust responsibility. Committee members also pressed for authority‑specific guidance on whether a single designated official or an interdivisional coordination process would be most effective, with Bill and other members arguing for a single point of primary responsibility within an agency to avoid diffusion of accountability.
Consultants and members flagged resources as a cross‑cutting concern: effective tribal consultation often requires staff time on both sides and might require congressional or OMB attention to funding and staffing. Members also raised confidentiality and FOIA questions: tribal governments sometimes request that particular information be treated as sensitive, and committee members debated whether ACUS should recommend legislative changes or agency policy clarifications to protect tribal sensitive information from public disclosure.
The committee directed staff and consultants to draft more specific, implementable language in the tribal consultation sections and to return with revised text at the next meeting. That drafting task includes consideration of how to preserve government‑to‑government dialogue while avoiding procedural conflicts such as ex parte rules in adjudicatory or permitting contexts.
