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 President’s 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 Nation’s 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
President’s 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.