[Weekly Compilation of Presidential Documents Volume 36, Number 45 (Monday, November 13, 2000)]
[Pages 2806-2809]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 13175--Consultation and Coordination
With Indian Tribal Governments
November 6, 2000
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to establish
regular and meaningful consultation and collaboration with tribal
officials in the development of Federal policies that have tribal
implications, to strengthen the United States government-to-government
relationships with Indian tribes, and to reduce the imposition of
unfunded mandates upon Indian tribes; it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) ``Policies that have tribal implications'' refers to
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution
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of power and responsibilities between the Federal Government and Indian
tribes.
(b) ``Indian tribe'' means an Indian or Alaska Native tribe, band,
nation, pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(c) ``Agency'' means any authority of the United States that is an
``agency'' under 44 U.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) ``Tribal officials'' means elected or duly appointed officials
of Indian tribal governments or authorized intertribal organizations.
Sec. 2. Fundamental Principles. In formulating or implementing
policies that have tribal implications, agencies shall be guided by the
following fundamental principles:
(a) The United States has a unique legal relationship with Indian
tribal governments as set forth in the Constitution of the United
States, treaties, statutes, Executive Orders, and court decisions. Since
the formation of the Union, the United States has recognized Indian
tribes as domestic dependent nations under its protection. The Federal
Government has enacted numerous statutes and promulgated numerous
regulations that establish and define a trust relationship with Indian
tribes.
(b) Our Nation, under the law of the United States, in accordance
with treaties, statutes, Executive Orders, and judicial decisions, has
recognized the right of Indian tribes to self-government. As domestic
dependent nations, Indian tribes exercise inherent sovereign powers over
their members and territory. The United States continues to work with
Indian tribes on a government-to-government basis to address issues
concerning Indian tribal self-government, tribal trust resources, and
Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian tribes to self-
government and supports tribal sovereignty and self-determination.
Sec. 3. Policymaking Criteria. In addition to adhering to the
fundamental principles set forth in section 2, agencies shall adhere, to
the extent permitted by law, to the following criteria when formulating
and implementing policies that have tribal implications:
(a) Agencies shall respect Indian tribal self-government and
sovereignty, honor tribal treaty and other rights, and strive to meet
the responsibilities that arise from the unique legal relationship
between the Federal Government and Indian tribal governments.
(b) With respect to Federal statutes and regulations administered by
Indian tribal governments, the Federal Government shall grant Indian
tribal governments the maximum administrative discretion possible.
(c) When undertaking to formulate and implement policies that have
tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to
achieve program objectives;
(2) where possible, defer to Indian tribes to establish
standards; and
(3) in determining whether to establish Federal standards,
consult with tribal officials as to the need for Federal
standards and any alternatives that would limit the scope of
Federal standards or otherwise preserve the prerogatives and
authority of Indian tribes.
Sec. 4. Special Requirements for Legislative Proposals. Agencies
shall not submit to the Congress legislation that would be inconsistent
with the policymaking criteria in Section 3.
Sec. 5. Consultation. (a) Each agency shall have an accountable
process to ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications. Within
30 days after the effective date of this order, the head of each agency
shall designate an official with principal responsibility for the
agency's implementation of this order. Within 60 days of the effective
date of this order, the designated official shall submit to the Office
of Management and Budget (OMB) a description of the agency's
consultation process.
(b) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has tribal implications, that imposes
substantial direct compliance costs on Indian tribal governments, and
that is not required by statute, unless:
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(1) funds necessary to pay the direct costs incurred by the
Indian tribal government or the tribe in complying with the
regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the
regulation,
(A) consulted with tribal officials early in the process of
developing the proposed regulation;
(B) in a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register,
provides to the Director of OMB a tribal summary impact
statement, which consists of a description of the extent of
the agency's prior consultation with tribal officials, a
summary of the nature of their concerns and the agency's
position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of tribal
officials have been met; and
(C) makes available to the Director of OMB any written
communications submitted to the agency by tribal officials.
(c) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has tribal implications and that preempts
tribal law unless the agency, prior to the formal promulgation of the
regulation,
(1) consulted with tribal officials early in the process of
developing the proposed regulation;
(2) in a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register,
provides to the Director of OMB a tribal summary impact
statement, which consists of a description of the extent of
the agency's prior consultation with tribal officials, a
summary of the nature of their concerns and the agency's
position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of tribal
officials have been met; and
(3) makes available to the Director of OMB any written
communications submitted to the agency by tribal officials.
(d) On issues relating to tribal self-government, tribal trust
resources, or Indian tribal treaty and other rights, each agency should
explore and, where appropriate, use consensual mechanisms for developing
regulations, including negotiated rulemaking.
Sec. 6. Increasing Flexibility for Indian Tribal Waivers.
(a) Agencies shall review the processes under which Indian tribes
apply for waivers of statutory and regulatory requirements and take
appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by
law, consider any application by an Indian tribe for a waiver of
statutory or regulatory requirements in connection with any program
administered by the agency with a general view toward increasing
opportunities for utilizing flexible policy approaches at the Indian
tribal level in cases in which the proposed waiver is consistent with
the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by
law, render a decision upon a complete application for a waiver within
120 days of receipt of such application by the agency, or as otherwise
provided by law or regulation. If the application for waiver is not
granted, the agency shall provide the applicant with timely written
notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory
requirements that are discretionary and subject to waiver by the agency.
Sec. 7. Accountability.
(a) In transmitting any draft final regulation that has tribal
implications to OMB pursuant to Executive Order 12866 of September 30,
1993, each agency shall include a certification from the official
designated to ensure compliance with this order stating that the
requirements of this order have been met in a meaningful and timely
manner.
(b) In transmitting proposed legislation that has tribal
implications to OMB, each agency shall include a certification from the
official designated to ensure compliance with this order that all
relevant requirements of this order have been met.
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(c) Within 180 days after the effective date of this order the
Director of OMB and the Assistant to the President for Intergovernmental
Affairs shall confer with tribal officials to ensure that this order is
being properly and effectively implemented.
Sec. 8. Independent Agencies. Independent regulatory agencies are
encouraged to comply with the provisions of this order.
Sec. 9. General Provisions. (a) This order shall supplement but
not supersede the requirements contained in Executive Order 12866
(Regulatory Planning and Review), Executive Order 12988 (Civil Justice
Reform), OMB Circular A-19, and the Executive Memorandum of April 29,
1994, on Government-to-Government Relations with Native American Tribal
Governments.
(b) This order shall complement the consultation and waiver
provisions in sections 6 and 7 of Executive Order 13132 (Federalism).
(c) Executive Order 13084 (Consultation and Coordination with Indian
Tribal Governments) is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date of this
order.
Sec. 10. Judicial Review. This order is intended only to improve
the internal management of the executive branch, and is not intended to
create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law by a party against the United States, its
agencies, or any person.
William J. Clinton
The White House,
November 6, 2000.
[Filed with the Office of the Federal Register, 8:45 a.m., November 8,
2000]
Note: This Executive order was published in the Federal Register on
November 9.