Consultation and Coordination With Indian
May 14, 1998
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. In treaties, our Nation has guaranteed
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, trust resources, and Indian tribal treaty and other rights.
Therefore, 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 Indian
tribal governments in the development of regulatory practices on Federal matters
that significantly or uniquely affect their communities; to reduce the
imposition of unfunded mandates upon Indian tribal governments; and to
streamline the application process for and increase the availability of waivers
to Indian tribal governments; it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a)"State" or "States" refer to the
States of the United States of America, individually or collectively, and, where
relevant, to State governments, including units of local government and other
political subdivisions established by the States.
(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.
Section 2. Policymaking Criteria. In formulating
policies significantly or uniquely affecting Indian tribal governments, agencies
shall be guided, to the extent permitted by law, by principles of respect for
Indian tribal self-government and sovereignty, for tribal treaty and others
rights, and for responsibilities that arise from the unique legal relationship
between the Federal Government and Indian tribal governments.
Section 3. Consultation. (a) Each agency shall have an
effective process to permit elected officials and other representatives of
Indian tribal governments to provide meaningful and timely input in the
development of regulatory policies on matters that significantly or uniquely
affect their communities.
(b) To the extent practicable and permitted by law, no agency
shall promulgate any regulation that is not required by statute, that
significantly or uniquely affects the communities of the Indian tribal
governments, and that imposes substantial direct compliance costs on such
(1) funds necessary to pay the direct costs incurred by the
Indian tribal government in complying with the regulation are provided by the
Federal Government; or
(2) the agency, prior to the formal promulgation of the
(A) 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 the Office of Management and Budget a
description of the extent of the agency's prior consultation with
representatives of affected Indian tribal governments, a summary of the
nature of their concerns, and the agency's position supporting the need to
issue the regulation; and
(B) makes available to the Director of the Office of
Management and Budget any written communications submitted to the agency by
such Indian tribal governments.
Section 4. Increasing Flexibility for Indian Tribal
(a) Agencies shall review the processes under which Indian
tribal governments 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 tribal government for a
waiver of statutory or regulatory requirements in connection with any program
administered by that 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. The agency shall
provide the applicant with timely written notice of the decision and, if the
application for a waiver is not granted, the reasons for such denial.
(d) This section applies only to statutory or regulatory
requirements that are discretionary and subject to waiver by the agency.
Section 5. Cooperation in developing regulations. On
issues relating to tribal self-government, trust resources, or treaty and other
rights, each agency should explore and, where appropriate, use consensual
mechanisms for developing regulations, including negotiated rulemaking.
Section 6. Independent agencies. Independent
regulatory agencies are encouraged to comply with the provisions of this order.
Section 7. General provisions. (a) This order is
intended only to improve the internal management of the executive branch and is
not intended to, and does not, create any right, benefit, or trust
responsibility, substantive or procedural, enforceable at law or equity by a
party against the United States, its agencies or instrumentalities, its officer
or employees, or any other person.
(b) 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.
(c) This order shall complement the consultation and waiver
provisions in sections 4 and 5 of the Executive order, entitled
"Federalism", being issued on this day.
(d) This order shall be effective 90 days after the date of
William J. Clinton
THE WHITE HOUSE
May 14, 1998