A flurry memoranda was signed by many government agencies and the White House in the wake of the November 2021 Tribal Nations Summit. These memoranda are intended to fulfill the Biden administration’s promises to consult with indigenous peoples and acknowledge their cultures, sacred sites, historical knowledge, and customs in the contexts environmental planning, sustainability, justice, and ongoing federal decision making and regulatory rulemaking.
The ongoing discussion focuses on Indigenous Traditional Ecological Knowledge, (ITEK), and the need to consult with Tribal communities in planning. This is something that has not happened in the past. In 2022, the Biden administration should provide more guidance and focus on these issues for all parties, including developers and investors as well as regulators and Tribes. These issues will be given more attention in 2022, which will add another step to the already lengthy NEPA process.
These initiatives are also scheduled to coincide with an increase in environmental reviews for infrastructure projects under the Infrastructure Investment and Jobs Act. (IIJA)which includes at minimum $13 billion for Native communities to upgrade roads, expand broadband access, fund sanitation, water rights and environmental reclamation projects. Just this week, the Department of the Interior announced that the White House Council on Native American Affairs (DOI), will host an engagement session with Tribal leaders on the implementation of the IIJA.
Proponents of infrastructure projects and other major projects should engage early with Tribal communities to ensure strong consultation and incorporation during the NEPA process. They should also monitor and ensure compliance with the federal government’s ITEK guidance later in the year.
Since Week One at White House, Biden administration has repeatedly committed itself to working closely with Tribal communities through various mechanism, including the Memorandum On Tribal Consultation And Strengthening Nation–to-Nation Relations (January 26, 2021); Executive Order. 13,985: Advancing Racial Equity through the Federal Government (January 20, 2020); and E.O. 14,031: Promoting Equity, Justice and Opportunity for Asian Americans and Native Hawaiians (May 28, 2021).
Tribal communities lauded the Biden administration’s focus on ITEK, their customs and cultures, beliefs, and environmental stewardship. Federal agencies have sought guidance in the past on how to consult with Tribes about ITEK issues. However, many observers have dismissed these efforts as inconsistent or greenwashing. There are however, positive changes in the air and momentum is building. The three significant memoranda that were issued in November show the administration’s commitment towards Tribes and the environment.
The White House Council on Environmental Quality (CEQ), and the White House Office of Science Technology Policy, (OSTP) released the memorandum. They recognize ITEK as crucial to federal government decision makers, and promise to consult with Tribal communities. It states:
ITEK is a collection of observations, oral, and written knowledge, practices and beliefs that promote sustainability and responsible stewardship. It involves the interaction between humans and their natural resources. It can be used to explain phenomena in biological, physical, cultural, and spiritual systems. ITEK evolved over the millennia and continues to evolve. It includes insights based upon direct contact with the environment, long-term experiences, extensive observations, lessons learned, and skills that have been passed down from generation to generation.
The memorandum also stated that ITEK should be included in federal decision making when necessary. The memorandum also calls for the creation the Interagency Working Group on Indigenous Traditional Ecological Knowledge. This group will develop ITEK guidance and promote ITEK to be one of the many important knowledge bodies that contributes to the scientific and technical advancements of the United States as well as to our collective understanding the natural world. The guidance on ITEK will be released by the working group in 2022. It will aim to ensure that Federal agencies engage in meaningful, meaningful, and robust consultations with Tribal officials in order to develop federal research policies, decisions, and policies. Given the above,Fourth National Climate AssessmentITEK was cited as a key to reducing climate change’s impacts and emissions. This is why the memorandum reiterated that. It is likely that guidance will also address climate change. The memorandum closes with an appendix that includes past ITEK successes among Tribes and federal governments.
This memorandum is a first step in a process to create guidance out of the group. It will be shaped with input from the Tribal Nations. ITEK practitioners and holders, agency experts, and public. Stakeholders, project proponents, and the general public should be prepared for this process in 2022.
MOU Concerning Interagency Collaboration and Coordination for the Protection of Indigenous Sacred Sites
The MOU was signed in the following ways: Department of Agriculture (USDA), Department of Transportation, (DOT), Department of Energy, (DOE), Environmental Protection Agency, (EPA), CEQ), Advisory Council on Historic Preservation, (ACHP) and Tennessee Valley Authority (TVA). [the participating agencies]a commitment to improve the protection and access of Indigenous sacred sites by enhancing and improving interdepartmental collaboration, collaboration, action and decision making in regulatory and agency decisions. The key to the implementation of the MOU is a collection of statutes and executive order, including the National Historic Preservation Act, NEPA, Native American Graves Protection and Repatriation Act, (NAGPRA), and E.O. 13007: Indian Sacred Sites and Archaeological Resources Protection Act. American Indian Religious Freedom Act. Religious Freedom Restoration Act. 13175 Consultation and coordination with Indian Tribal governments. The MOU also includes 12 actions. These include the creation of an interagency group, the acknowledgment and incorporation ITEK in the best practices procedures, guidance for the management and treatment of sacred sites, and a call to a listening session within 120 day of execution of the MOU. Each agency must develop and implement mutually agreed upon actions, and amend the MOU as necessary, based on the consultations and listening session.
MOU Concerning Interagency Collaboration and Coordination for the Protection of Tribal Treaty Rights and Reserved Rights
The ACHP, USDA and Department of Commerce sign the MOU.[ing]Treaty rights, reserved and similar tribal rights to natural or cultural resources. This MOU builds on a 2016 agreement. The agencies also express their intent to show their commitments by incorporating treaty and reserved rights into agency decision making and regulatory processes. To ensure compliance with treaty obligations in regulatory processes and decision making, the agencies pledge to support the creation a database that includes all treaties between the United States (US) and Tribal Nations. The MOU also establishes an agency-based working group. This group will meet monthly and include a subgroup of agency lawyers to provide legal support.
Concerns are mounting
Despite the Biden administration’s efforts in embracing ITEK, respecting sacred sites, honoring treaties, combating climate change, and seeking ongoing and consistent consultations to Tribal communities in NEPA, skeptics across all sides of this discussion have concerns.
Additional red tape is added to the NEPA process.Additional discussions with Tribal communities will delay the already complex NEPA-required environmental review process by causing delays of months or even years.
Infrastructure Investment and Jobs Act.Will these additional requirements slow down the development of these projects, despite more than a trillion dollars being committed to infrastructure and funds specifically set aside for Tribal communities? It remains to be seen how Tribal communities respond to DOIs asking them to provide input on planning decisions for the IIJA. These programs include Tribal Climate Resilience, water infrastructure and drought resilience programmes; Indian water rights settlement investments; wildfire resilience programmes; ecosystem restoration programs; legacy polluting programs; and U.S. Geological Survey Infrastructure Law programs. What will the Biden administration do with these projects?
Use and incorporation of ITEK.Tribal members are unsure if any information provided will be used and incorporated into agency decisions and regulatory processes. They may also question whether providing ITEK to federal agency decision-making and regulatory processes will be beneficial to them.
Environmental justice.Some parties have questioned if all MOUs and EOs surrounding ITEK actually respect and honor Tribes and their sacred places and treaties, or if they are merely lip-service to these issues without making any substantive changes in practices.
Mitigation of litigation risk, or a new vehicle to challenge?Some believe upfront consultations will reduce litigation risk on the back end and improve the timeline of projects that are located in or near Tribal communities. These initiatives could also be used as a way to challenge agency decision-making.
Consistency across agencies.Due to the size of the United States and the number of agencies and projects involved, it is likely that there will be inconsistencies when it comes to the implementation and rollout of these directives. It remains to be seen if the working groups will achieve their coordination goals.
Focus on certain industries.Will Tribal consultations and directives relating to incorporation of ITEK focus on certain industries such as the fossil fuel sector?
There is broad consensus that respecting Tribal communities and their rights is important. However there are many stakeholders competing for a voice regarding these MOUs and, more generally project permitting within Tribal areas. There is no doubt that the ITEK and federal governments engagement with Tribes will be clarified through the aforementioned working group, listening sessions, as well as the 2022 guidance document. You can expect more executive orders, MOUs, and statutes on these topics, especially ITEK. These issues will be embedded in other issues, such as climate change, over the coming months and years. As usual, regulatory rulemakings and modifications can require pivoting at a moment’s warning for all stakeholders. It is wise that you have a predefined strategy, and effective counsel, to help navigate these changes as soon as they occur.
Proponents of federal land projects or those who require federal approvals will want to start considering these issues early in their planning process. While there are strategies that can be implemented to address these issues now, 2022 will offer more guidance and focus on how to incorporate these strategies into existing planning processes. Stakeholders will continue to keep an eye on developments in this area and may consider taking part in the public comments opportunities.
Copyright 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review Volume XII, Number 21,