Many people understand the tribal consultation process required by numerous federal statutes, regulations, and executive orders as it applies to federal agencies.  However, few understand that this process is also required at the state and local government levels, as well as the private sector, whenever federal funds, grants, or loans are used for any given project or program or federal permits, licenses, or approvals are required.  Rules governing consultation are rooted in numerous federal statutes, regulations, and executive orders.  Among these are the Commerce Clause in the U.S. Constitution, National Historic Preservation Act (NHPA), Native American Graves Protection and Repatriation Act (NAGPRA), National Environmental Policy Act (NEPA), latest Executive Order 13175, and numerous federal agency regulations.  In fact, all federal departments and agencies are in the process of overhauling their consultation requirements in response to the November 5, 2009, Presidential Memorandum on Tribal Consultation.

To be honest, the tribal consultation process is relatively simple and anyone can follow the steps.  However, when the process is accomplished without a relationship with a tribe, it can become taxing, arduous, time consuming, and can stall a project for indefinite periods of time – often leading to judicial challenges.  Strong relationships, on the other hand, between non-tribal entities and tribal governments can streamline the process, making it more efficient and user friendly.

Take the words from Robert Thrower, Tribal Historical Preservation Officer for the Poarch Band of Creeks in Alabama.

“You can teach people anything they need to know about consultation.  I don’t consider a relationship just sitting here talking about what we have to do and going through the motions and making X number of meetings, …  Sometimes people forget there’s a place for humanity in consultation if you view it as a relationship instead of going through the necessary steps.  That’s bureaucratic thought, ‘We have to do this, [because it] is required.’  Yes it is, but do you look at it as a fulfillment of a requirement or do you look at it as an opportunity to build a meaningful on-going relationship?  That’s the distinction.”

So, as Robert states, the most successful consultation process is one that is coupled to a strong working relationship.  Not just, as he says, “We have to do this, [because it] is required.”  This leads me to two distinct definitions of consultation – formal and informal.  Let’s look at each.

Formal consultation is going through the motions and meeting the regulatory and policy requirements.  You send the letter to the tribe requesting their input on a particular project or program proposal.  There is no response so you schedule a meeting with the tribe.  You meet with the tribal representatives and receive feedback.  Finally the decision is made and you send out a letter to the public (and tribe) notifying them of the decision.  Now the fireworks begin – the tribe let’s you know that you didn’t adequately consult with them and failed to take into consideration their concerns.  Basically, you are back to square one!

Informal consultation, on the other hand, means you have a strong relationship with the tribe and meet with them on a regular basis – say monthly.  You discuss upcoming projects before any letter goes out to the public announcing a program or project proposal.  You discuss things other than business, such as tribal history, cultural protocols, and learn about your customer.  You share a meal together and talk about things other than business.  The result is you are displaying respect, building trust, and recognizing the tribe as a sovereign entity.

So, now you have a project come up at the last minute, make a quick call to the tribe and share the information about it.  This happens, by the way, before you even send a notice to the public.  You get one of two responses from the tribe. “No, this not a project we believe has any impact on our tribal interests and you can move forward without any further consultation.”  Or, “Yes, this is something we are interested in and would like to meet with you to discuss it in detail.”  In the second scenario, you then meet with the tribe and document their concerns and preview your decision with the tribe before releasing it publicly.  You ensure the tribe sees their “fingerprints” on the decision.  In other words, your decision respectfully addresses the tribe’s concerns and interests and is very visible in the decision.  You have also met the requirements of the formal consultation process in this scenario.

Most tribal representatives I visit with prefer informal consultation, as it is more efficient and built on a foundation of trust.  As Russ Townsend, Tribal Historic Preservation Officer for the Eastern Cherokee puts it:

“Where we have good relationships with federal agencies…they have people in their point of contact who are willing to call us, are willing to make allowances to our schedule, who are willing to keep us informed about projects that they aren’t sure we’d be concerned about [or] that we might be concerned about.  They really go that extra distance and that really puts us at ease and we have confidence in that person.”

What Russ is really describing is trust.  And trust is the key link in an informal consultation process!

If you are on the fence deciding whether or not to invest your organization’s time and energy in developing a good strong relationship with a tribe or tribes, let me assure you that the investment will have returns greater than you ever expected.  You will not only save time and money, but the enrichment of learning and befriending someone culturally different will enrich your life many times over.