THE WHITE HOUSE
Office of the Press Secretary
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For Immediate Release |
November 6, 2000
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EXECUTIVE ORDER
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CONSULTATION AND COORDINATION
WITH INDIAN TRIBAL GOVERNMENTS
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 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.
Section 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.
Section 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.
Section 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.
Section 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
implica-tions, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required
by statute, unless:
(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
implica-tions 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 state-ment, 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.
Section 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 connec-tion 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.
Section 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 require-ments 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.
(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.
Section 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.
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