Government-to-Government Tribal Relations

CECW-AG

MEMORANDUM FOR COMMANDERS, MAJOR SUBORDINATE COMMANDS AND DISTRICT COMMANDS

SUBJECT: Policy Guidance Letter No. 57, Indian Sovereignty and Government-to-Government Relations With Indian Tribes

1. Our Nation has long recognized the sovereign status of Indian tribes. The United States Constitution specifically addresses Indian sovereignty by classing Indian treaties among the "supreme Law of the land," and establishes Indian affairs as a unique focus of Federal concern. Principles outlined in the Constitution and treaties, as well as those established by Federal laws, regulations and Executive Orders, continue to guide our national policy towards Indian Nations.

2. On 29 April 1994, President Clinton reaffirmed the United States "unique legal relationship with Native American tribal governments." In recognition of the special considerations due to tribal interests, the President directed Federal agencies to operate within a government-to-government relationship with federally recognized Indian tribes; consult, to the greatest extent practicable and permitted by law, with Indian tribal governments; assess the impact of agency activities on tribal trust resources and assure that tribal interests are considered before the activities are undertaken; and remove procedural impediments to working directly with tribal governments on activities that affect trust property or governmental rights of the tribes. The full text of the Presidents directive is found in enclosure 1.

3. The U.S. Army Corps of Engineers has lasting and positive relations with many Indian tribal governments. Since 1990, Indian tribes have been local partners in the development and construction of over 200 water resources development projects and each year, tribes apply for hundreds of permits under the Corps Clean Water Act permitting responsibilities. Still, I want to ensure that all Corps Commands adhere to principles of respect for Indian tribal governments and honor our Nations trust responsibility. To this end I have enclosed U.S. Army Corps of Engineers Tribal Policy Principles, for use as interim guidance until more detailed statements are developed. These Principles have been developed with the Office of the Assistant Secretary of the Army (Civil Works) and are consistent with the Presidents goals and objectives.

JOE N. BALLARD
Lieutenant General, USA
Commanding

U.S. ARMY CORPS OF ENGINEERS

TRIBAL POLICY PRINCIPLES

INTRODUCTION. On April 29, 1994, President William J. Clinton issued a Memorandum for the Heads of Executive Departments and Agencies, titled "Government-to-Government Relations with Native American Tribal Governments". At the request of Dr. John Zirschky, Acting Assistant Secretary of the Army for Civil Works, the Army Corps of Engineers (Corps) established a Native American Inter-governmental Relations Task Force (Task Force) to make recommendations on opportunities to improve government-to-government interactions with Federally Recognized Tribes.

CONSULTATION. From February through June 1995, with the assistance of Task Force members, Corps staff met with government representatives from 186, or 57 percent, of the federally recognized Tribes in the lower 48 States. Nineteen workshops were held and there were over 550 Tribal participants. Information obtained from the workshops was compiled and evaluated, and subsequently published by the Corps Institute for Water Resources in a two-volume report entitled, Assessment of Corps/Tribal Intergovernmental Relations in August 1996. The Task Force reconvened in the spring of 1996 to assess the progress being made towards implementation. New information obtained from subsequent meetings and cooperative efforts with Tribes was considered. In addition, substantial information was obtained by the participation of Office of the Assistant Secretary of the Army (Civil Works) staff over the past twelve months in the Department of Defense (DoD) effort to develop a DoD-wide Tribal Policy. This effort has been assisted by representatives from the National Congress of American Indians (NCAI).

ARMY CIVIL WORKS TRIBAL POLICY PRINCIPLES ISSUED. The attached Army Corps of Engineers Tribal Policy Principles (Principles), are an outgrowth of the cooperative efforts and extensive learning process described above. The Principles were drafted by the Office of the Assistant Secretary of the Army (Civil Works) based upon Tribal input received over the past four years, coordinated with the Corps, and put into place, formally, on February 10, 1998. The Principles have been distributed to all Corps districts (37), divisions (8), labs, and other offices, as interim guidance, under the signature of Lieutenant General Joe N. Ballard, Chief of Engineers.

NEED FOR ACTION. Why were the Principles issued? The Chief and this office agreed that it was time to move forward into an new era of cooperation and partnership with Tribes. The Principles explicitly acknowledge the unique relationship with Indian Tribes as sovereign Nations, and remind Commanders and 32,000 Corps employees that Tribes retain their inherent rights to self government. The Principles require Command-level impact assessments on trust resources be conducted and that Tribal interests be considered before activities are undertaken. The Principles acknowledge that treaty rights will be respected, and require Corps staff to treat Tribal representatives with respect and dignity.

ANTICIPATED OUTCOMES. We believe strongly that the interim guidance will reaffirm good relationships and support work already underway, and pave the way for new and enhanced relationships, and new work. Using the Principles, the Office of the Assistant Secretary of the Army (Civil Works) and the Corps will explore, with renewed vigor, opportunities to remove impediments that prevent us from working directly with Tribal governments on matters involving trust resources, treaty responsibilities, and Tribes rights. It is anticipated that the Principles will help with the operation and maintenance of 44 Corps projects which involve trust assets affecting the well-being of 15 percent of the Tribes in the lower 48 States.

STIMULATE PARTNERSHIPS. Tribes have been partners with Army Civil Works, either as direct sponsors, or through sub-agreements, in over 300 projects which are in various stages of planning, engineering, or construction. In addition, Tribes have applied for over 500 Section 404 (Clean Water Act) permits under the Regulatory Program. Consistent with the Principles, Army Civil Works will look for new challenges, especially those using environmental restoration and protection, planning assistance, and technical support authorities. The 150 historic preservation specialists (most with graduate degrees) in the Corps which currently fulfill compliance, stewardship, curation, protection, and NAGPRA responsibilities, will be consulted to help meet these new challenges as we work with Tribes, and internally, on the many ideas received concerning the need for additional Tribal Coordinators (Indian Desks).

ARMY TRIBAL POC. Since April 1996, Mr. Chip Smith, Assistant for Environment and Regulatory Affairs, Office of the Assistant Secretary of the Army (Civil Works) has served as a principle point of contact for Tribal affairs, tasked with working with Tribes, promoting Tribal initiatives, participating on the DoD Tribal Policy Working Group, and coordinating with the Corps to facilitate Tribal involvement in programs, projects, and other activities. Mr. Smith, who is a professional archaeologist, historian, and cultural resource manager, and who is responsible for environmental policy can be reached at (703) 693-3655.

U.S. ARMY CORPS OF ENGINEERS

TRIBAL POLICY PRINCIPLES

TRIBAL SOVEREIGNTY - The U.S. Army Corps of Engineers recognizes that Tribal governments are sovereign entities, with rights to set their own priorities, develop and manage Tribal and trust resources, and be involved in Federal decisions or activities which have the potential to affect these rights. Tribes retain inherent powers of self-government.

TRUST RESPONSIBILITY - The U.S. Army Corps of Engineers will work to meet trust obligations, protect trust resources, and obtain Tribal views of trust and treaty responsibilities or actions related to the Corps, in accordance with provisions of treaties, laws and Executive Orders as well as principles lodged in the Constitution of the United States.

GOVERNMENT-TO-GOVERNMENT RELATIONS - The U.S. Army Corps of Engineers will ensure that Tribal Chairs/Leaders meet with Corps Commanders/Leaders and recognize that, as governments, Tribes have the right to be treated with appropriate respect and dignity, in accordance with principles of self-determination.

PRE-DECISIONAL AND HONEST CONSULTATION - The U.S. Army Corps of Engineers will reach out, through designated points of contact, to involve Tribes in collaborative processes designed to ensure information exchange, consideration of disparate viewpoints before and during decision making, and utilize fair and impartial dispute resolution mechanisms.

SELF RELIANCE, CAPACITY BUILDING, AND GROWTH - The U.S. Army Corps of Engineers will search for ways to involve Tribes in programs, projects and other activities that build economic capacity and foster abilities to manage Tribal resources while preserving cultural identities.

NATURAL AND CULTURAL RESOURCES - The U.S. Army Corps of Engineers will act to fulfill obligations to preserve and protect trust resources, comply with the Native American Graves Protection and Repatriation Act, and ensure reasonable access to sacred sites in accordance with published and easily accessible guidance.