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Thursday, January 20, 2011

A Devilish Definition

I’ve just become aware of a draft Department of the Interior (DOI) tribal consultation policy that’s been posted on the web at http://www.doi.gov/governments/loader.cfm?csModule=security/getfile&pageid=119393 . The status of this document is not clear to me, but it’s being reviewed and commented on by tribes and, I take it, some DOI agencies. Whether, how, and when it will be made available for public review and comment is a mystery to me.

At a glance, the policy looks like a well-meaning document whose devils are, as usual, in the details. One detail that jumped out at me on first reading is at Section III.D, the definition of “Departmental Action with Tribal Implications.” This is a very important definition, DATIs are the things that DOI agencies are directed to consult about. If it’s a DATI you consult; if it’s not a DATI you don’t have to. Here’s the definition:

Departmental Action with Tribal Implications – Regulation, rulemaking, policy, guidance, legislative proposal made by the Department, grant funding formula changes, or operational activity that may have a substantial direct effect on Tribe or Tribal members’ traditional way of life, Tribal lands, Tribal resources, or access to traditional areas of cultural or religious importance on Federally-managed lands; or the ability of the Tribe to govern its members or to provide services to its members; or that may impact the Tribe(s) relationship with the Department or the distribution of responsibilities between the Department and Indian Tribes. This term does not include matters that are the subject of litigation or in settlement negotiations, or matters that undertaken in accordance with an administrative or judicial order.

Right off the bat, I see several problems with this definition.

One is its very existence. What earthly business does the Department of the Interior have deciding what does and does not have “tribal implications?” Surely only a tribe can decide what has implications for it and its people. Is it sensible, or fair, for the actor – the one contemplating an action – to decide whether it has implications for those acted upon, without even talking with them?

Now, of course, pragmatically a line has to be drawn somewhere; it would be absurd to have, say, the U.S. Park Police consulting with tribes about what fuel mix to use in their helicopters. But there’s got to be a better way than issuing this sort of peremptory definition.

And insult is added to injury – or maybe it’s vice versa, by the language “that may have a substantial direct effect.” Who, pray, is going to decide what’s “substantial” as opposed to “insubstantial?” Or “direct” as opposed to “indirect,” or maybe “cumulative?” Nit-picky lawyers will have a field day with this. And what’s the rationale for NOT considering indirect effects, or the contribution of an action to cumulative effects? We consider such impacts under the National Environmental Policy Act (NEPA), and under Section 106 of the National Historic Preservation Act (NHPA) – and in the latter case we even consult about them. Are we now going to have DOI agencies saying “well, we consult with everybody ELSE about indirect and cumulative effects, but our policy is NOT to consult with tribes?

Then there’s the language about “areas of cultural or religious importance on Federally-managed lands.” So DOI agencies don’t have to talk with tribes about impacts on areas of cultural and religious importance unless they’re on Federally-managed lands? So if DOI is, say, going to permit implantation of a vast bank of solar arrays on a chunk of public land that’s within the viewshed of a tribal sacred mountain that happens to be on private land, that action has no tribal implications? Give us a break!

Finally, there’s the perfectly wonderful exclusion for “matters that are the subject of litigation or in settlement negotiations, or matters that undertaken in accordance with an administrative or judicial order.” This one discriminates not only against tribes, but against the English language. We’re talking, here, about a definition of “action with tribal implications.” It ought to be offensive to any rational English speaker to see matters of litigation – in which, one has to assume, a tribe might often be a litigant – defined as having no tribal implications. So we have a tribe fighting the Department tooth and claw over, say, a project affecting a spiritual place, or culturally important plants or animals, and as soon as they go to court the matter stops having tribal implications?

Of course, it’s perfectly understandable that when a case goes to court, it’s going to have a chilling effect on other forms of interaction between the parties, and DOI is perfectly justified in not wanting to create a policy that will limit its maneuvering room in the conduct of litigation. That has to be addressed, and I’m sure ways can be found to do so, but the sort of gross misuse of the language that’s reflected in this definition is simply not the way.

I don’t doubt the good-faith intent of the Department of the Interior to consult with tribes, but this kind of pettifogging definition mongering is not going to help advance that intent. “Departmental action with tribal implications” ought to be defined to mean whatever an agency of DOI does that a tribe thinks has implications for it, and agencies ought to consult programmatically with tribes to decide what they’re going to consult about and what they aren’t.

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