25 U.S.C. § 5301 — Congressional statement of findings

Page 709 TITLE 25—INDIANS § 5301 Sec. 5325. Contract funding and indirect costs. 5326. Indian Health Service: availability of funds for Indian self-determination or self-governance contract or grant sup- port costs. 5327. Department of the Interior: availability of funds for Indian self-determination or self-governance contract or grant support costs. 5328. Rules and regulations. 5329. Contract or grant specifications. 5330. Rescission of contract or grant and as- sumption of control of program, etc.; authority; grounds; procedure; correc- tion of violation as prerequisite to new contract or grant agreement; construc- tion with occupational safety and health requirements. 5331. Contract disputes and claims. 5332. Sovereign immunity and trusteeship rights unaffected. SUBCHAPTER II—CONTRACTS WITH STATES 5341. Donations for Indians; use of gifts; an- nual report to Congress. 5342. Contracts for education, medical atten- tion, relief and social welfare of Indi- ans. 5343. Use of Government property by States and Territories. 5344. Rules and regulations; minimum stand- ards of service. 5345. Contracts for education in public schools; submission of education plan by contractor as prerequisite; criteria for approval of plan by Secretary of the Interior; participation by non-In- dian students. 5346. Local committee of Indian parents in school districts having school boards composed of non-Indian majority. 5347. Reimbursement to school districts for educating non-resident students. 5348. Computation of student count. SUBCHAPTER III—INDIAN EDUCATION ASSISTANCE 5351. School construction, acquisition, or ren- ovation contracts. 5352. General education contract and grant provisions and requirements; school district quality and standards of excel- lence. 5353. Availability of funds to agencies, insti- tutions, and organizations. 5354. Rules and regulations. 5355. Eligibility for funds of tribe or tribal or- ganization controlling or managing private schools. 5356. Supplemental assistance to funds pro- vided to local educational agencies. SUBCHAPTER IV—TRIBAL SELF-GOVERNANCE— DEPARTMENT OF THE INTERIOR 5361. Definitions. 5362. Tribal Self-Governance Program. 5363. Funding agreements. 5364. Compacts. 5365. General provisions. 5366. Provisions relating to the Secretary. 5367. Construction programs and projects. 5368. Payment. 5369. Facilitation. 5370. Discretionary application of other sec- tions. 5371. Annual budget list. 5372. Reports. 5373. Regulations. 5374. Effect of circulars, policies, manuals, guidance, and rules. Sec. 5375. Appeals. 5376. Application of other provisions. 5377. Authorization of appropriations. SUBCHAPTER V—TRIBAL SELF-GOVERNANCE— INDIAN HEALTH SERVICE 5381. Definitions. 5382. Establishment. 5383. Selection of participating Indian tribes. 5384. Compacts. 5385. Funding agreements. 5386. General provisions. 5387. Provisions relating to the Secretary. 5388. Transfer of funds. 5389. Construction projects. 5390. Federal procurement laws and regula- tions. 5391. Civil actions. 5392. Facilitation. 5393. Budget request. 5394. Reports. 5395. Disclaimers. 5396. Application of other sections of this chapter. 5397. Regulations. 5398. Appeals. 5399. Authorization of appropriations. SUBCHAPTER VI—INDIAN LAW ENFORCEMENT FOUNDATION 5411. Definitions. 5412. Indian Law Enforcement Foundation. 5413. Administrative services and support. SUBCHAPTER VII—NATIONAL FUND FOR EXCELLENCE IN AMERICAN INDIAN EDUCATION 5421. National Fund for Excellence in Amer- ican Indian Education. 5422. Administrative services and support. 5423. Definitions. § 5301. Congressional statement of findings (a) Findings respecting historical and special legal relationship, and resultant responsibil- ities The Congress, after careful review of the Fed- eral Government’s historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that— (1) the prolonged Federal domination of In- dian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving In- dians of the full opportunity to develop leader- ship skills crucial to the realization of self- government, and has denied to the Indian peo- ple an effective voice in the planning and im- plementation of programs for the benefit of In- dians which are responsive to the true needs of Indian communities; and (2) the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian gov- ernments, organizations, and persons. (b) Further findings The Congress further finds that— (1) true self-determination in any society of people is dependent upon an educational proc- ess which will insure the development of quali- fied people to fulfill meaningful leadership roles; (2) the Federal responsibility for and assist- ance to education of Indian children has not Page 710 TITLE 25—INDIANS § 5301 effected the desired level of educational achievement or created the diverse opportuni- ties and personal satisfaction which education can and should provide; and (3) parental and community control of the educational process is of crucial importance to the Indian people. (Pub. L. 93–638, § 2, Jan. 4, 1975, 88 Stat. 2203.) Editorial Notes CODIFICATION Section was formerly classified to section 450 of this title prior to editorial reclassification and renumbering as this section. Statutory Notes and Related Subsidiaries SHORT TITLE OF 2020 AMENDMENT Pub. L. 116–260, div. DD, § 1, Dec. 27, 2020, 134 Stat. 3008, provided that: ‘‘This division [amending section 5363 of this title and repealing in part and omitting in part section 671 of Title 16, Conservation] may be cited as the ‘Montana Water Rights Protection Act’.’’ Pub. L. 116–180, § 1(a), Oct. 21, 2020, 134 Stat. 857, pro- vided that: ‘‘This Act [enacting sections 5364 to 5377 of this title, amending sections 5304, 5305, 5321, 5324, 5325, 5329, and 5361 to 5363 of this title, repealing sections 5364 to 5368 of this title, and enacting provisions set out as notes under sections 5305 and 5361 of this title] may be cited as the ‘Practical Reforms and Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act of 2019’ or the ‘PROGRESS for Indian Tribes Act’.’’ SHORT TITLE OF 2018 AMENDMENT Pub. L. 115–404, § 1, Dec. 31, 2018, 132 Stat. 5349, pro- vided that: ‘‘This Act [enacting section 5348 of this title] may be cited as the ‘Johnson-O’Malley Supple- mental Indian Education Program Modernization Act’.’’ SHORT TITLE OF 2000 AMENDMENT Pub. L. 106–568, title VIII, § 801, Dec. 27, 2000, 114 Stat. 2916, provided that: ‘‘This title [see Tables for classi- fication] may be cited as the ‘Native American Laws Technical Corrections Act of 2000’.’’ Pub. L. 106–568, title XIII, § 1301, Dec. 27, 2000, 114 Stat. 2936, provided that: ‘‘This title [enacting subchapter VII of this chapter] may be cited as the ‘American In- dian Education Foundation Act of 2000’.’’ Pub. L. 106–260, § 1, Aug. 18, 2000, 114 Stat. 711, pro- vided that: ‘‘This Act [see Tables for classification] may be cited as the ‘Tribal Self-Governance Amend- ments of 2000’.’’ SHORT TITLE OF 1994 AMENDMENT Pub. L. 103–413, § 1, Oct. 25, 1994, 108 Stat. 4250, pro- vided that: ‘‘This Act [see Tables for classification] may be cited as the ‘Indian Self-Determination Act Amendments of 1994’.’’ Pub. L. 103–413, title I, § 101, Oct. 25, 1994, 108 Stat. 4250, provided that: ‘‘This title [see Tables for classi- fication] may be cited as the ‘Indian Self-Determina- tion Contract Reform Act of 1994’.’’ Pub. L. 103–413, title II, § 201, Oct. 25, 1994, 108 Stat. 4270, provided that: ‘‘This title [enacting subchapter IV (§ 5361 et seq.) of this chapter and provisions set out as notes under section 5361 of this title] may be cited as the ‘Tribal Self-Governance Act of 1994’.’’ SHORT TITLE OF 1990 AMENDMENT Pub. L. 101–644, title II, § 201, Nov. 29, 1990, 104 Stat. 4665, provided that: ‘‘This title [see Tables for classi- fication] may be cited as the ‘Indian Self-Determina- tion and Education Assistance Act Amendments of 1990’.’’ SHORT TITLE OF 1988 AMENDMENT Pub. L. 100–472, title I, § 101, Oct. 5, 1988, 102 Stat. 2285, provided that: ‘‘This Act [see Tables for classification] may be cited as the ‘Indian Self-Determination and Education Assistance Act Amendments of 1988’.’’ SHORT TITLE Pub. L. 93–638, § 1, Jan. 4, 1975, 88 Stat. 2203, provided: ‘‘That this Act [enacting this chapter, section 13a of this title, and section 2004b of Title 42, The Public Health and Welfare, and amending section 3371 of Title 5, Government Organization and Employees, section 4762 of Title 42, and section 3806 of Title 50, War and Na- tional Defense] may be cited as the ‘Indian Self-Deter- mination and Education Assistance Act’.’’ Pub. L. 93–638, title I, § 101, Jan. 4, 1975, 88 Stat. 2206, provided that: ‘‘This title [enacting subchapter I (§ 5321 et seq.) of this chapter and section 2004b of Title 42, The Public Health and Welfare, and amending section 3371 of Title 5, Government Organization and Employees, section 4762 of Title 42, and section 3806 of Title 50, War and National Defense] may be cited as the ‘Indian Self- Determination Act’.’’ Pub. L. 93–638, title II, § 201, Jan. 4, 1975, 88 Stat. 2213, provided that: ‘‘This title [enacting subchapter III (§ 5351 et seq.) of this chapter, sections 5345 to 5347 of this title, and provisions set out as a note under sec- tion 5347 of this title] may be cited as the ‘Indian Edu- cation Assistance Act’.’’ Act April 16, 1934, ch. 147, 48 Stat. 596, which enacted sections 5342 to 5348 of this title, is popularly known as the ‘‘Johnson-O’Malley Act’’. SAVINGS PROVISIONS Pub. L. 100–472, title II, § 210, Oct. 5, 1988, 102 Stat. 2298, provided that: ‘‘Nothing in this Act [see Tables for classification] shall be construed as— ‘‘(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or ‘‘(2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to Indian people.’’ SEVERABILITY Pub. L. 100–472, title II, § 211, Oct. 5, 1988, 102 Stat. 2298, provided that: ‘‘If any provision of this Act [see Tables for classification] or the application thereof to any Indian tribe, entity, person or circumstance is held invalid, neither the remainder of this Act, nor the ap- plication of any provisions herein to other Indian tribes, entities, persons, or circumstances, shall be af- fected thereby.’’ CONSULTATION WITH ALASKA NATIVE CORPORATIONS Pub. L. 108–199, div. H, § 161, Jan. 23, 2004, 118 Stat. 452, as amended by Pub. L. 108–447, div. H, title V, § 518, Dec. 8, 2004, 118 Stat. 3267, provided that: ‘‘The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175 [set out below].’’ Executive Documents EX. ORD. NO. 13175. CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS Ex. Ord. No. 13175, Nov. 6, 2000, 65 F.R. 67249, provided: 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 mean- ingful consultation and collaboration with tribal offi- cials 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 man- dates upon Indian tribes; it is hereby ordered as fol- lows: Page 711 TITLE 25—INDIANS § 5301 SECTION 1. Definitions. For purposes of this order: (a) ‘‘Policies that have tribal implications’’ refers to regulations, legislative comments or proposed legisla- tion, 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 [now 25 U.S.C. 5130]. (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 regu- latory 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. SEC. 2. Fundamental Principles. In formulating or im- plementing 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 Con- stitution of the United States, treaties, statutes, Exec- utive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protec- tion. 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 In- dian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign pow- ers over their members and territory. The United States continues to work with Indian tribes on a gov- ernment-to-government basis to address issues con- cerning Indian tribal self-government, tribal trust re- sources, and Indian tribal treaty and other rights. (c) The United States recognizes the right of Indian tribes to self-government and supports tribal sov- ereignty and self-determination. SEC. 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 imple- menting policies that have tribal implications: (a) Agencies shall respect Indian tribal self-govern- ment 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 poli- cies 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 pre- serve the prerogatives and authority of Indian tribes. SEC. 4. Special Requirements for Legislative Proposals. Agencies shall not submit to the Congress legislation that would be inconsistent with the policymaking cri- teria in Section 3. SEC. 5. Consultation. (a) Each agency shall have an ac- countable process to ensure meaningful and timely input by tribal officials in the development of regu- latory 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 implications, 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 Gov- ernment; or (2) the agency, prior to the formal promulgation of the regulation, (A) consulted with tribal officials early in the proc- ess of developing the proposed regulation; (B) in a separately identified portion of the pre- amble 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 con- sultation with tribal officials, a summary of the na- ture of their concerns and the agency’s position sup- porting the need to issue the regulation, and a state- ment of the extent to which the concerns of tribal of- ficials 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 implications 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 sum- mary 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 con- cerns 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 writ- ten communications submitted to the agency by tribal officials. (d) On issues relating to tribal self-government, trib- al trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appro- priate, use consensual mechanisms for developing regu- lations, including negotiated rulemaking. SEC. 6. Increasing Flexibility for Indian Tribal Waivers. (a) Agencies shall review the processes under which Indian tribes apply for waivers of statutory and regu- latory 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 In- dian tribe for a waiver of statutory or regulatory re- quirements in connection with any program adminis- tered by the agency with a general view toward in- creasing opportunities for utilizing flexible policy ap- proaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Fed- eral 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 pro- vided by law or regulation. If the application for waiver is not granted, the agency shall provide the applicant Page 712 TITLE 25—INDIANS § 5301 with timely written notice of the decision and the rea- sons therefor. (d) This section applies only to statutory or regu- latory requirements that are discretionary and subject to waiver by the agency. SEC. 7. Accountability. (a) In transmitting any draft final regulation that has tribal implications to OMB pursuant to Executive Order 12866 of September 30, 1993 [5 U.S.C. 601 note], each agency shall include a certification from the offi- cial designated to ensure compliance with this order stating that the requirements of this order have been met in a meaningful and timely manner. (b) In transmitting proposed legislation that has trib- al implications to OMB, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant require- ments 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. SEC. 8. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order. SEC. 9. General Provisions. (a) This order shall supple- ment but not supersede the requirements contained in Executive Order 12866 (Regulatory Planning and Re- view) [5 U.S.C. 601 note], Executive Order 12988 (Civil Justice Reform) [28 U.S.C. 519 note], OMB Circular A–19, and the Executive Memorandum of April 29, 1994, on Government-to-Government Relations with Native American Tribal Governments [set out below]. (b) This order shall complement the consultation and waiver provisions in sections 6 and 7 of Executive Order 13132 (Federalism) [5 U.S.C. 601 note]. (c) Executive Order 13084 (Consultation and Coordina- tion with Indian Tribal Governments) [former 25 U.S.C. 450 note] 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, en- forceable at law by a party against the United States, its agencies, or any person. WILLIAM J. CLINTON. EX. ORD. NO. 13647. ESTABLISHING THE WHITE HOUSE COUNCIL ON NATIVE AMERICAN AFFAIRS Ex. Ord. No. 13647, June 26, 2013, 78 F.R. 39539, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote and sustain pros- perous and resilient Native American tribal govern- ments, it is hereby ordered as follows: SECTION 1. Policy. The United States recognizes a gov- ernment-to-government relationship, as well as a unique legal and political relationship, with federally recognized tribes. This relationship is set forth in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. Honoring these relationships and respecting the sovereignty of tribal nations is crit- ical to advancing tribal self-determination and pros- perity. As we work together to forge a brighter future for all Americans, we cannot ignore a history of mistreatment and destructive policies that have hurt tribal commu- nities. The United States seeks to continue restoring and healing relations with Native Americans and to strengthen its partnership with tribal governments, for our more recent history demonstrates that tribal self- determination—the ability of tribal governments to de- termine how to build and sustain their own commu- nities—is necessary for successful and prospering com- munities. We further recognize that restoring tribal lands through appropriate means helps foster tribal self-determination. This order establishes a national policy to ensure that the Federal Government engages in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including by better carrying out its trust responsibilities. This policy is established as a means of promoting and sustaining prosperous and re- silient tribal communities. Greater engagement and meaningful consultation with tribes is of paramount importance in developing any policies affecting tribal nations. To honor treaties and recognize tribes’ inherent sov- ereignty and right to self-government under U.S. law, it is the policy of the United States to promote the de- velopment of prosperous and resilient tribal commu- nities, including by: (a) promoting sustainable economic development, particularly energy, transportation, housing, other in- frastructure, entrepreneurial, and workforce develop- ment to drive future economic growth and security; (b) supporting greater access to, and control over, nu- trition and healthcare, including special efforts to con- front historic health disparities and chronic diseases; (c) supporting efforts to improve the effectiveness and efficiency of tribal justice systems and protect tribal communities; (d) expanding and improving lifelong educational op- portunities for American Indians and Alaska Natives, while respecting demands for greater tribal control over tribal education, consistent with Executive Order 13592 of December 2, 2011 (Improving American Indian and Alaska Native Educational Opportunities and Strengthening Tribal Colleges and Universities) [former 20 U.S.C. 7401 note]; and (e) protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures. SEC. 2. Establishment. There is established the White House Council on Native American Affairs (Council). The Council shall improve coordination of Federal pro- grams and the use of resources available to tribal com- munities. SEC. 3. Membership. (a) The Secretary of the Interior shall serve as the Chair of the Council, which shall also include the heads of the following executive depart- ments, agencies, and offices: (i) the Department of State; (ii) the Department of the Treasury; (iii) the Department of Defense; (iv) the Department of Justice; (v) the Department of Agriculture; (vi) the Department of Commerce; (vii) the Department of Labor; (viii) the Department of Health and Human Services; (ix) the Department of Housing and Urban Develop- ment; (x) the Department of Transportation; (xi) the Department of Energy; (xii) the Department of Education; (xiii) the Department of Veterans Affairs; (xiv) the Department of Homeland Security; (xv) the Social Security Administration; (xvi) the Office of Personnel Management; (xvii) the Office of the United States Trade Rep- resentative; (xviii) the Office of Management and Budget; (xix) the Environmental Protection Agency; (xx) the Small Business Administration; (xxi) the Council of Economic Advisers; (xxii) the Office of National Drug Control Policy; (xxiii) the Domestic Policy Council; (xxiv) the National Economic Council; (xxv) the Office of Science and Technology Policy; (xxvi) the Council on Environmental Quality; (xxvii) the White House Office of Public Engagement and Intergovernmental Affairs; (xxviii) the Advisory Council on Historic Preserva- tion; Page 713 TITLE 25—INDIANS § 5301 (xxix) the Denali Commission; (xxx) the White House Office of Cabinet Affairs; and (xxxi) such other executive departments, agencies, and offices as the Chair may, from time to time, des- ignate. (b) A member of the Council may designate a senior- level official, who is a full-time officer or employee of the Federal Government, to perform his or her func- tions. (c) The Department of the Interior shall provide fund- ing and administrative support for the Council to the extent permitted by law and within existing appropria- tions. (d) The Council shall coordinate its policy develop- ment through the Domestic Policy Council. (e) The Council shall coordinate its outreach to feder- ally recognized tribes through the White House Office of Public Engagement and Intergovernmental Affairs. (f) The Council shall meet three times a year, with any additional meetings convened as deemed necessary by the Chair. The Chair may invite other interested agencies and offices to attend meetings as appropriate. SEC. 4. Mission and Function of the Council. The Coun- cil shall work across executive departments, agencies, and offices to coordinate development of policy rec- ommendations to support tribal self-governance and improve the quality of life for Native Americans, and shall coordinate the United States Government’s en- gagement with tribal governments and their commu- nities. The Council shall: (a) make recommendations to the President, through the Director of the Domestic Policy Council, con- cerning policy priorities, including improving the effec- tiveness of Federal investments in Native American communities, where appropriate, to increase the im- pact of Federal resources and create greater opportuni- ties to help improve the quality of life for Native Americans; (b) coordinate, through the Director of the Office of Public Engagement and Intergovernmental Affairs, Federal engagement with tribal governments and Na- tive American stakeholders regarding issues important to Native Americans, including with tribal consortia, small businesses, education and training institutions including tribal colleges and universities, health-care providers, trade associations, research and grant insti- tutions, law enforcement, State and local governments, and community and non-profit organizations; (c) coordinate a more effective and efficient process for executive departments, agencies, and offices to honor the United States commitment to tribal con- sultation as set forth in Executive Order 13175 of No- vember 6, 2000 (Consultation and Coordination With In- dian Tribal Governments), and my memorandum of No- vember 5, 2009 (Tribal Consultation); and (d) assist the White House Office of Public Engage- ment and Intergovernmental Affairs in organizing the White House Tribal Nations Conference each year by bringing together leaders invited from all federally rec- ognized Indian tribes and senior officials from the Fed- eral Government to provide for direct government-to- government discussion of the Federal Government’s In- dian country policy priorities. SEC. 5. General Provisions. (a) The heads of executive departments, agencies, and offices shall assist and pro- vide information to the Council, consistent with appli- cable law, as may be necessary to carry out the func- tions of the Council. (b) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment, agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (c) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (d) For purposes of this order, ‘‘federally recognized tribe’’ means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Sec- retary of the Interior acknowledges to exist as an In- dian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a [now 25 U.S.C. 5130]. (e) For purposes of this order, ‘‘American Indian and Alaska Native’’ means a member of an Indian tribe, as membership is defined by the tribe. (f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. BARACK OBAMA. EX. ORD. NO. 14112. REFORMING FEDERAL FUNDING AND SUPPORT FOR TRIBAL NATIONS TO BETTER EMBRACE OUR TRUST RESPONSIBILITIES AND PROMOTE THE NEXT ERA OF TRIBAL SELF-DETERMINATION Ex. Ord. No. 14112, Dec. 6, 2023, 88 F.R. 86021, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: SECTION 1. Policy. My Administration is committed to protecting and supporting Tribal sovereignty and self- determination, and to honoring our trust and treaty obligations to Tribal Nations. We recognize the right of Tribal Nations to self-determination, and that Federal support for Tribal self-determination has been the most effective policy for the economic growth of Tribal Na- tions and the economic well-being of Tribal citizens. Federal policies of past eras, including termination, re- location, and assimilation, collectively represented at- tacks on Tribal sovereignty and did lasting damage to Tribal communities, Tribal economies, and the institu- tions of Tribal governance. By contrast, the self-deter- mination policies of the last 50 years—whereby the Federal Government has worked with Tribal Nations to promote and support Tribal self-governance and the growth of Tribal institutions—have revitalized Tribal economies, rebuilt Tribal governments, and begun to heal the relationship between Tribal Nations and the United States. Despite the progress of the last 50 years, Federal funding and support programs that are the backbone of Federal support for Tribal self-determination are too often administered in ways that leave Tribal Nations unduly burdened and frustrated with bureaucratic proc- esses. The Federal funding that Tribal Nations rely on comes from myriad sources across the Federal Govern- ment, often with varying and complex application and reporting processes. While Tribal Nations continue to rebuild, grow, and thrive, some Tribal Nations do not have the capacity and resources they need to access Federal funds—and even for those that do, having to re- peatedly navigate Federal processes often unneces- sarily drains those resources. My Administration has taken steps to meaningfully reform existing Federal processes for Tribal Nations. Executive Order 14058 of December 13, 2021 (Trans- forming Federal Customer Experience and Service De- livery to Rebuild Trust in Government) [31 U.S.C. 501 note], directed executive departments and agencies (agencies) to reduce administrative burdens and im- prove efficiency in public-facing and internal Federal processes, while the Presidential Memorandum of Jan- uary 26, 2021 (Tribal Consultation and Strengthening Nation-to-Nation Relationships) [set out as a note below], and the Presidential Memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation) [set out as a note below], reiterated our commitment to, and established uniform standards for, Tribal con- sultation. These previous actions have laid an impor- tant foundation for the policies and procedures set forth in this order. Now is the time to build upon this foundation by ush- ering in the next era of self-determination policies and our unique Nation-to-Nation relationships, during which we will better acknowledge and engage with Page 714 TITLE 25—INDIANS § 5301 Tribal Nations as respected and vital self-governing sovereigns. As we continue to support Tribal Nations, we must respect their sovereignty by better ensuring that they are able to make their own decisions about where and how to meet the needs of their communities. No less than for any other sovereign, Tribal self-gov- ernance is about the fundamental right of a people to determine their own destiny and to prosper and flour- ish on their own terms. This order solidifies my Administration’s commit- ment to this next era of Tribal self-determination poli- cies that are rooted in prioritizing partnerships with Tribal leaders, respect for Tribal sovereignty, trust in Tribal priorities, and dignity for Tribal Nations. In keeping with our trust and treaty obligations to Tribal Nations, and our commitment to advancing Tribal sov- ereignty, it is the policy of the United States to design and administer Federal funding and support programs for Tribal Nations, consistent with applicable law and to the extent practicable, in a manner that better rec- ognizes and supports Tribal sovereignty and self-deter- mination. To realize this policy, the Federal Govern- ment must improve how it approaches the work of ad- ministering Tribal programs and supporting Tribal communities. We must ensure that Federal programs, to the max- imum extent possible and practicable under Federal law, provide Tribal Nations with the flexibility to im- prove economic growth, address the specific needs of their communities, and realize their vision for their fu- ture. We must improve our Nation-to-Nation relation- ships by reducing administrative burdens and by ad- ministering funding in a manner that provides Tribal Nations with the greatest possible autonomy to address the specific needs of their people. We must make it easier for Tribal Nations to access the Federal funding and resources for which they are eligible and that they need to help grow their economies and provide their citizens with vital and innovative services. We must promote partnerships with Tribal Nations, recognizing that they bring invaluable expertise on countless mat- ters from how to more effectively meet the needs of their citizens to how to steward their ancestral home- lands. We must promote effective consideration of the unique needs of Tribal Nations from the very beginning of our design, update, or review of processes and throughout every step of administering Federal funding and support programs. We must implement laws, poli- cies, and programs in ways that allow Tribal Nations to take ownership of resources and services for their com- munities. We need to identify any statutory and regu- latory changes that are necessary or may be helpful to ensure that Federal funding and support programs ef- fectively address the needs of Tribal Nations, and rec- ommend legislative changes, where appropriate. Fi- nally, we must, through Tribal consultation, contin- ually improve our understanding of the funding and programmatic needs of Tribal Nations. The foregoing is not only good policy, but is also consistent with our commitment to fulfilling the United States’ unique trust responsibility to Tribal Nations and the deep re- spect we have for Tribal Nations. SEC. 2. Definitions. For purposes of this order: (a) The term ‘‘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). (b) The term ‘‘Federal funding and support programs for Tribal Nations’’ includes funding, programs, tech- nical assistance, loans, grants, or other financial sup- port or direct services that the Federal Government provides to Tribal Nations or Indians because of their status as Indians. It also includes actions or programs that do not exclusively serve Tribes, but for which Tribal Nations are eligible along with non-Tribal enti- ties. It does not include programs for which both Indi- ans and non-Indians are eligible. (c) The terms ‘‘Tribes’’ and ‘‘Tribal Nations’’ mean any Indian tribe, band, nation, or other organized group or community considered an ‘‘Indian Tribe’’ under section 4 of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5304. SEC. 3. Agency Coordination on Better Supporting Tribal Nations and Identifying Opportunities for Reform. Agen- cies shall work with the White House Council on Native American Affairs (WHCNAA) to coordinate implemen- tation of this order, share leading practices, and iden- tify potential opportunities for Federal policy reforms that would promote accessible, equitable, and flexible administration of Federal funding and support pro- grams for Tribal Nations. The WHCNAA shall assist agencies in coordinating the Tribal consultations re- quired by section 4 of this order to minimize the burden on Tribal Nations in participating. SEC. 4. Embracing Our Trust Responsibilities by Assess- ing Unmet Federal Obligations to Support Tribal Nations. The Director of the Office of Management and Budget (OMB) and the Assistant to the President and Domestic Policy Advisor (Domestic Policy Advisor) shall lead an effort, in collaboration with WHCNAA, to identify chronic shortfalls in Federal funding and support pro- grams for Tribal Nations, and shall submit rec- ommendations to the President describing the addi- tional funding and programming necessary to better live up to the Federal Government’s trust responsibil- ities and help address the needs of all Tribal Nations, as follows: (a) Within 240 days of the date of this order [Dec. 6, 2023], the Director of OMB and the Domestic Policy Ad- visor shall, in consultation with the head of each agen- cy that is a member of WHCNAA, and in consultation with Tribal leaders or their designees, develop guidance for assessing the additional funding each agency needs for its existing Federal funding and support programs for Tribal Nations to better live up to the Federal Gov- ernment’s trust responsibilities and help address the needs of all Tribal Nations. (b) Within 540 days of the date of this order, the head of each agency that is a member of WHCNAA shall con- sult the guidance developed under subsection (a) of this section and submit a report to the Director of OMB and the Domestic Policy Advisor that identifies the funding needed for each agency’s existing Federal funding and support programs for Tribal Nations to better live up to the Federal Government’s trust responsibilities and help address the needs of Tribal Nations in the agency’s areas of responsibility. (c) The Director of OMB and the Domestic Policy Ad- visor shall develop, based on the agency reports pro- vided under subsection (b) of this section and in con- sultation with Tribes and WHCNAA, recommendations for the Federal Government to take steps toward better living up to its trust responsibilities and helping ad- dress the needs of all Tribal Nations. These rec- ommendations should identify any budgetary, statu- tory, regulatory, or other changes that may be nec- essary to ensure that Federal laws, policies, practices, and programs support Tribal Nations more effectively. These recommendations shall be submitted to the President, and shall be considered by agencies and OMB in developing the President’s Budget beginning with the next regular President’s Budget development cycle. (d) After submission of the reports and recommenda- tions described in subsections (b) and (c) of this section, the Executive Director of WHCNAA shall annually con- vene appropriate representatives of WHCNAA member agencies to share best practices, track progress on im- plementing the recommendations, and evaluate the need for reassessment of funding. (e) Following submission of the recommendations de- scribed in subsection (c) of this section, WHCNAA member agencies shall report annually to the Director of OMB on progress made in response to such rec- ommendations. The Director of OMB shall provide a summary of agencies’ progress and any new rec- ommendations to Tribal leaders at the annual White House Tribal Nations Summit. SEC. 5. Agency Actions to Increase the Accessibility, Eq- uity, Flexibility, and Utility of Federal Funding and Sup- port Programs for Tribal Nations. Agency heads shall Page 715 TITLE 25—INDIANS § 5301 take the following actions to increase the accessibility, equity, flexibility, and utility of Federal funding and support programs for Tribal Nations, while increasing the transparency and efficiency of Federal funding processes to better live up to the Federal Government’s trust responsibilities and support Tribal self-deter- mination: (a) Agencies shall design, revise, provide waivers for, and otherwise administer Federal funding and support programs for Tribal Nations to achieve the following objectives, to the maximum extent practicable and consistent with applicable law: (i) promote compacting, contracting, co-manage- ment, co-stewardship, and other agreements with Trib- al Nations that allow them to partner with the Federal Government to administer Federal programs and serv- ices; (ii) identify funding programs that may allow for Tribal set-asides or other similar resource or benefits prioritization measures and, where appropriate, estab- lish Tribal set-asides or prioritization measures that meet the needs of Tribal Nations; (iii) design application and reporting criteria and processes in ways that reduce administrative burdens, including by consolidating and streamlining such cri- teria and processes within individual agencies; (iv) take into account the unique needs, limited ca- pacity, or significant barriers faced by Tribal Nations by providing reasonable and appropriate exceptions or accommodations where necessary; (v) increase the flexibility of Federal funding for Tribal Nations by removing, where feasible, unneces- sary limitations on Tribal spending, including by maxi- mizing the portion of Federal funding that can be used for training, administrative costs, and additional per- sonnel; (vi) improve accessibility by identifying matching or cost-sharing requirements that may unduly reduce the ability of Tribal Nations to access resources and re- moving those burdens where appropriate; (vii) respect Tribal data sovereignty and recognize the importance of Indigenous Knowledge by, when ap- propriate and permitted by statute, allowing Tribal Na- tions to use self-certified data and avoiding the estab- lishment of processes that require Tribal Nations to apply to, or obtain permission from, State or local gov- ernments to access Federal funding or to be part of a Federal program; (viii) provide Tribal Nations with the flexibility to apply for Federal funding and support programs through inter-Tribal consortia or other entities while requiring non-Tribal entities that apply for Federal funding on behalf of, or to directly benefit, Tribal Na- tions to include proof of Tribal consent; and (ix) provide ongoing outreach and technical assist- ance to Tribal Nations throughout the application and implementation process while continually improving agencies’ understanding of Tribal Nations’ unique needs through Tribal consultation and meaningful partnerships. (b) Agencies, in coordination with OMB and con- sistent with applicable law, should assess Tribal Na- tions’ access to competitive grant funding by tracking applications from Tribal Nations to competitive grant programs and their funding award success rate. (c) Agencies should proactively and systematically identify and address, where possible, any additional undue burdens not discussed in this order that Tribal Nations face in accessing or effectively using Federal funding and support programs for Tribal Nations and their root causes, including those causes that are regu- latory, technological, or process-based. (d) Agencies’ implementation efforts shall appro- priately maintain or enhance protections afforded under existing Federal law and policy, including those related to treaty rights and trust obligations, Tribal sovereignty and jurisdiction, civil rights, civil lib- erties, privacy, confidentiality, Indigenous Knowledge, and information access and security. (e) The WHCNAA, with support from the Secretary of the Interior as appropriate, shall ensure that Tribal Nations can easily identify in one location all sources of Federal funding and support programs for Tribal Na- tions, and all agencies that provide such funding shall coordinate with the Secretary of the Interior or the Secretary’s designee to compile and regularly update the necessary information to support this resource. (f) Agencies shall identify opportunities, as appro- priate and consistent with applicable law, to modify their respective regulations, internal and public-facing guidance, internal budget development processes, and policies to include responsiveness to and support for the needs of Tribal Nations as part of their respective agencies’ missions. (g) Agencies shall issue internal guidance or direc- tives, and provide additional staff training or support, as needed and as appropriate and consistent with appli- cable law, to promote the implementation of the lead- ing practices identified in this section and their inte- gration into agencies’ processes for developing policies and programs. SEC. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) Agencies not covered by section 2(a) of this order, including independent agencies, are strongly encour- aged to comply with the provisions of this order. (d) This order is not intended to, and does not, create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agen- cies, or entities, its officers, employees, or agents, or any other person. J.R. BIDEN, JR. GOVERNMENT-TO-GOVERNMENT RELATIONS WITH NATIVE AMERICAN TRIBAL GOVERNMENTS Memorandum of President of the United States, Apr. 29, 1994, 59 F.R. 22951, provided: Memorandum for the Heads of Executive Depart- ments and Agencies The United States Government has a unique legal re- lationship with Native American tribal governments as set forth in the Constitution of the United States, trea- ties, statutes, and court decisions. As executive depart- ments and agencies undertake activities affecting Na- tive American tribal rights or trust resources, such ac- tivities should be implemented in a knowledgeable, sensitive manner respectful of tribal sovereignty. Today, as part of an historic meeting, I am outlining principles that executive departments and agencies, in- cluding every component bureau and office, are to fol- low in their interactions with Native American tribal governments. The purpose of these principles is to clar- ify our responsibility to ensure that the Federal Gov- ernment operates within a government-to-government relationship with federally recognized Native American tribes. I am strongly committed to building a more ef- fective day-to-day working relationship reflecting re- spect for the rights of self-government due the sov- ereign tribal governments. In order to ensure that the rights of sovereign tribal governments are fully respected, executive branch ac- tivities shall be guided by the following: (a) The head of each executive department and agen- cy shall be responsible for ensuring that the depart- ment or agency operates within a government-to-gov- ernment relationship with federally recognized tribal governments. (b) Each executive department and agency shall con- sult, to the greatest extent practicable and to the ex- tent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal Page 716 TITLE 25—INDIANS § 5301 governments. All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals. (c) Each executive department and agency shall as- sess the impact of Federal Government plans, projects, programs, and activities on tribal trust resources and assure that tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities. (d) Each executive department and agency shall take appropriate steps to remove any procedural impedi- ments to working directly and effectively with tribal governments on activities that affect the trust prop- erty and/or governmental rights of the tribes. (e) Each executive department and agency shall work cooperatively with other Federal departments and agencies to enlist their interest and support in coopera- tive efforts, where appropriate, to accomplish the goals of this memorandum. (f) Each executive department and agency shall apply the requirements of Executive Orders Nos. 12875 (‘‘En- hancing the Intergovernmental Partnership’’) [former 5 U.S.C. 601 note] and 12866 (‘‘Regulatory Planning and Review’’) [5 U.S.C. 601 note] to design solutions and tai- lor Federal programs, in appropriate circumstances, to address specific or unique needs of tribal communities. The head of each executive department and agency shall ensure that the department or agency’s bureaus and components are fully aware of this memorandum, through publication or other means, and that they are in compliance with its requirements. This memorandum is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to ad- ministrative or judicial review, or any other right or benefit or trust responsibility, substantive or proce- dural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or em- ployees, or any other person. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. TRIBAL CONSULTATION Memorandum of President of the United States, Nov. 5, 2009, 74 F.R. 57881, provided: Memorandum for the Heads of Executive Depart- ments And Agencies The United States has a unique legal and political re- lationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special rela- tionship, pursuant to Executive Order 13175 of Novem- ber 6, 2000, executive departments and agencies (agen- cies) are charged with engaging in regular and mean- ingful consultation and collaboration with tribal offi- cials in the development of Federal policies that have tribal implications, and are responsible for strength- ening the government-to-government relationship be- tween the United States and Indian tribes. History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and trib- al officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship. My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implica- tions including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress re- port on the status of each action included in its plan together with any proposed updates to its plan. Each agency’s plan and subsequent reports shall des- ignate an appropriate official to coordinate implemen- tation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Exec- utive Order 13175. In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Pol- icy, shall submit to me, within 1 year from the date of this memorandum, a report on the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress re- ports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report. The terms ‘‘Indian tribe,’’ ‘‘tribal officials,’’ and ‘‘policies that have tribal implications’’ as used in this memorandum are as defined in Executive Order 13175. The Director of the OMB is hereby authorized and di- rected to publish this memorandum in the Federal Reg- ister. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or enti- ties, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms. BARACK OBAMA. TRIBAL CONSULTATION AND STRENGTHENING NATION-TO- NATION RELATIONSHIPS Memorandum of President of the United States, Jan. 26, 2021, 86 F.R. 7491, provided: Memorandum for the Heads of Executive Depart- ments and Agencies American Indian and Alaska Native Tribal Nations are sovereign governments recognized under the Con- stitution of the United States, treaties, statutes, Exec- utive Orders, and court decisions. It is a priority of my Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Trib- al Nations cornerstones of Federal Indian policy. The United States has made solemn promises to Tribal Na- tions for more than two centuries. Honoring those com- mitments is particularly vital now, as our Nation faces crises related to health, the economy, racial justice, and climate change—all of which disproportionately harm Native Americans. History demonstrates that we best serve Native American people when Tribal govern- ments are empowered to lead their communities, and when Federal officials speak with and listen to Tribal leaders in formulating Federal policy that affects Trib- al Nations. To this end, Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments) [set out above], charges all executive de- partments and agencies with engaging in regular, meaningful, and robust consultation with Tribal offi- cials in the development of Federal policies that have Tribal implications. Tribal consultation under this order strengthens the Nation-to-Nation relationship be- tween the United States and Tribal Nations. The Presi- Page 717 TITLE 25—INDIANS § 5301 dential Memorandum of November 5, 2009 (Tribal Con- sultation) [set out above], requires each agency to pre- pare and periodically update a detailed plan of action to implement the policies and directives of Executive Order 13175. This memorandum reaffirms the policy an- nounced in that memorandum. SECTION 1. Consultation. My Administration is com- mitted to honoring Tribal sovereignty and including Tribal voices in policy deliberation that affects Tribal communities. The Federal Government has much to learn from Tribal Nations and strong communication is fundamental to a constructive relationship. Accord- ingly, I hereby direct as follows: (a) The head of each agency shall submit to the Di- rector of the Office of Management and Budget (OMB), within 90 days of the date of this memorandum [Jan. 26, 2021], a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. The plan shall be developed after consulta- tion by the agency with Tribal Nations and Tribal offi- cials as defined in Executive Order 13175. (b) Each agency’s plan and subsequent reports shall designate an appropriate agency official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. These officials shall submit reports to the Assistant to the President for Domestic Policy (APDP) and the Director of OMB, who will review agency plans and subsequent reports for consistency with the policies and directives of Exec- utive Order 13175. (c) The head of each agency shall submit to the Direc- tor of OMB, within 270 days of the date of this memo- randum, and annually thereafter, a progress report on the status of each action included in the agency’s plan, together with any proposed updates to its plan. (d) The Director of OMB, in coordination with the APDP, shall submit to the President, within 1 year from the date of this memorandum, a report on the im- plementation of Executive Order 13175 across the execu- tive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the Tribal consultation process more effective, if any, should be included in this report. SEC. 2. Definitions. The terms ‘‘Tribal officials,’’ ‘‘policies that have Tribal implications,’’ and ‘‘agency’’ as used in this memorandum are as defined in Execu- tive Order 13175. SEC. 3. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. SEC. 4. Publication. The Director of OMB is authorized and directed to publish this memorandum in the Fed- eral Register. J.R. BIDEN, JR. UNIFORM STANDARDS FOR TRIBAL CONSULTATION Memorandum of President of the United States, Nov. 30, 2022, 87 F.R. 74479, provided: Memorandum for the Heads of Executive Depart- ments and Agencies By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: SECTION 1. Background. The United States has a unique, legally affirmed Nation-to-Nation relationship with American Indian and Alaska Native Tribal Na- tions, which is recognized under the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. The United States recognizes the right of Tribal governments to self-govern and supports Trib- al sovereignty and self-determination. The United States also has a unique trust relationship with and re- sponsibility to protect and support Tribal Nations. In recognition of this unique legal relationship, and to strengthen the government-to-government relation- ship, Executive Order 13175 of November 6, 2000 (Con- sultation and Coordination With Indian Tribal Govern- ments) [set out above], charges all executive depart- ments and agencies (agencies) with engaging in reg- ular, meaningful, and robust consultation with Tribal officials in the development of Federal policies that have Tribal implications. Executive Order 13175 also sets forth fundamental principles and policymaking criteria. The Presidential Memorandum of January 26, 2021 (Tribal Consultation and Strengthening Nation-to-Na- tion Relationships) [set out above], requires agencies to submit detailed plans of action to implement the poli- cies and directives of Executive Order 13175. In re- sponse, all agencies subject to Executive Order 13175 submitted plans of action, including over 50 agencies that submitted a consultation plan of action for the first time. Agencies also conducted more than 90 na- tional-level Tribal consultations, focusing specifically on agency Tribal consultation policies. The purpose of this memorandum is to establish uniform minimum standards to be implemented across all agencies re- garding how Tribal consultations are to be conducted. This memorandum is designed to respond to the input received from Tribal Nations regarding Tribal con- sultation, improve and streamline the consultation process for both Tribes and Federal participants, and ensure more consistency in how agencies initiate, pro- vide notice for, conduct, record, and report on Tribal consultations. These are baseline standards; agencies are encouraged to build upon these standards to fulfill the goals and purposes of Executive Order 13175 con- sistent with their unique missions and engagement with Tribal Nations on agency-specific issues. SEC. 2. Consultation Principles. Tribal consultation is a two-way, Nation-to-Nation exchange of information and dialogue between official representatives of the United States and of Tribal Nations regarding Federal policies that have Tribal implications. Consultation recognizes Tribal sovereignty and the Nation-to-Nation relationship between the United States and Tribal Na- tions, and acknowledges that the United States main- tains certain treaty and trust responsibilities to Tribal Nations. Consultation requires that information ob- tained from Tribes be given meaningful consideration, and agencies should strive for consensus with Tribes or a mutually desired outcome. Consultation should gen- erally include both Federal and Tribal officials with de- cision-making authority regarding the proposed policy that has Tribal implications. Consultation will ensure that applicable information is readily available to all parties, that Federal and Tribal officials have adequate time to communicate, and that after the Federal deci- sion, consulting Tribal Nations are advised as to how their input influenced that decision-making. All of these principles should be applied to the extent prac- ticable and permitted by law. SEC. 3. Designating an Agency Point of Contact for Trib- al Consultation. (a) The head of each agency shall des- ignate a primary point of contact for Tribal consulta- tion matters who is responsible for advising agency staff on all matters pertaining to Tribal consultation and serving as the primary point of contact for Tribal officials seeking to consult with the agency. (b) The head of each agency shall consider desig- nating additional points of contact as necessary to fa- cilitate consultation on varied subject matter areas within the agency. (c) Each agency shall provide the names and contact information of the designated agency points of contact Page 718 TITLE 25—INDIANS § 5301 for Tribal consultation on its website, as well as to the White House Office of Intergovernmental Affairs and the White House Council on Native American Affairs. (d) The designated agency points of contact may dele- gate consultation responsibilities to other decision- making agency officials within their agency as nec- essary and appropriate. SEC. 4. Determining Whether Consultation Is Appro- priate. The head of each agency shall ensure that agen- cy staff undertake an analysis as early as possible to determine whether Tribal consultation is required or appropriate consistent with Executive Order 13175. This analysis should occur regardless of whether a Tribal government requests consultation. When a Tribal gov- ernment requests consultation, the agency—to the ex- tent that it has not yet performed the analysis to de- termine whether consultation is appropriate—shall conduct that analysis as soon as possible and respond to the Tribe within a reasonable time period. If there is a reasonable basis to believe that a policy may have Tribal implications, consistent with the definition in Executive Order 13175, the agency shall follow the ap- plicable requirements for consultation. Agencies may still engage in Tribal consultation even if they deter- mine that a policy will not have Tribal implications, and should consider doing so if they determine that a policy is of interest to a Tribe or Tribes. SEC. 5. Notice of Consultation. (a) When inviting a Tribe or Tribes to consult, the head of each agency should: (i) develop a notice of consultation, which includes: (A) sufficient information on the topic to be dis- cussed, in an accessible language and format, and context for the consultation topic, to facilitate meaningful consultation; (B) the date, time, and location of the consultation, as requested by the agency or as developed in con- sultation with the Tribe or Tribes; (C) if consulting virtually or by telephone, links to join or register in advance; (D) an explanation of any time constraints known to the agency at that time, such as statutory dead- lines; (E) deadlines for any written comments on the topic; and (F) names and contact information for agency staff who can provide more information; (ii) transmit the notice of consultation, using the agency’s standard method of communication, to each affected Tribal government and consider posting it to the agency’s website or any centralized Federal Gov- ernment site for providing notice of or coordinating Tribal consultations; (iii) provide notice of at least 30 days to the Tribe or Tribes of any planned consultations, except as provided in subsection (c) of this section; (iv) provide appropriate, available information on the subject of consultation including, where consistent with applicable law, a proposed agenda, framing paper, and other relevant documents to assist in the consulta- tion process; and (v) allow for a written comment period following the consultation of at least 30 days, except as provided in subsection (c) of this section. (b) The head of each agency shall ensure that agency officials responsible for sending invitations to consult to interested or potentially affected Tribal govern- ments use available tools, databases, and agency docu- mentation, as well as communicate with agency rep- resentatives who may be knowledgeable about those Tribes and the location(s) affected by the policy with Tribal implications, to ensure their invitation efforts are appropriately inclusive. Such efforts should ac- count for the fact that Tribes may have connections or legally protected rights to locations and resources be- yond their current Tribal lands and Tribal government offices such as off-reservation fishing, hunting, gath- ering, or other rights. (c) If there are time constraints such that 30 days’ no- tice of consultation is not possible, or that the post- consultation written comment period described in sub- section (a)(v) of this section must be shorter than 30 days, the notice of consultation should include infor- mation as to why the standard notice or written com- ment period cannot be provided. Upon the request of a Tribe, or where it would serve Tribal interests or fulfill certain trust obligations to Tribal Nations, agencies should consider adjusting deadlines for notice of con- sultations and for accepting written comments. SEC. 6. Conducting the Consultation. Throughout a con- sultation, the head of each agency, or appropriate rep- resentatives, shall recognize and respect Tribal self- government and sovereignty; identify and consider Tribal treaty rights, reserved rights, and other rights; respect and elevate Indigenous Knowledge, including cultural norms and practices relevant to such consulta- tions; and meet the responsibilities that arise from the unique legal relationship between the Federal Govern- ment and Tribal governments. The head of each agency should ensure that agency representatives with appro- priate expertise and, to the extent practicable, deci- sion-making authority regarding the proposed policy are present at the Nation-to-Nation consultation. The head of each agency should consider conducting the consultation in a manner that prioritizes participation of official Tribal government leaders. SEC. 7. Record of the Consultation. (a) The head of each agency shall maintain a record of the consultation process that includes: (i) a summary of Tribal input received; (ii) a general explanation of how Tribal input influ- enced or was incorporated into the agency action; and (iii) if relevant, the general reasoning for why Tribal suggestions were not incorporated into the agency ac- tion or why consensus could not be attained. (b) The head of each agency shall timely disclose to the affected Tribe or Tribes the outcome of the con- sultation and decisions made as a result of the con- sultation. To the extent permitted by applicable law, the head of each agency shall seek to ensure that infor- mation designated as sensitive by a Tribal government is not publicly disclosed. Agencies should obtain ad- vance informed consent from Tribal communities for the use of sensitive information provided by the Tribe, and should inform Tribal representatives that certain Federal laws, including the Freedom of Information Act [5 U.S.C. 552], may require disclosure of such infor- mation. (c) For national and regional consultations, or if oth- erwise appropriate, the head of each agency should also consider publicly posting the record of consultation to foster ease of reference and use by other agencies, em- ployees, and processes, and to minimize burdens on Tribes to provide similar input in multiple consulta- tions. Decisions regarding whether to publicly post a record of consultation should be made with Tribal input. (d) The record of consultation does not waive any privilege or other exception to disclosure pursuant to the Freedom of Information Act or its implementing regulations. SEC. 8. Training. (a) The head of each agency shall re- quire annual training regarding Tribal consultation for agency employees who work with Tribal Nations or on policies with Tribal implications. This training shall include, at minimum, review of Executive Order 13175, this memorandum, and any applicable Tribal consulta- tion policy of the agency. (b) In addition, the Secretary of the Interior and the Director of the Office of Personnel Management (OPM), in consultation with Tribal Nations, shall establish training modules regarding Tribal consultation to be available for agency employees who work with Tribal Nations or on policies with Tribal implications. These training modules should explain the concepts of Tribal consultation, the Nation-to-Nation relationship, and Tribal sovereignty. Agencies may use these training modules to satisfy the annual training requirement set forth in subsection (a) of this section. (c) Within 180 days of the date of this memorandum [Nov. 30, 2022], the Director of OPM, in consultation Page 719 TITLE 25—INDIANS § 5304 with the Secretary of the Interior, shall report to the President on progress toward establishing training modules regarding Tribal consultation and shall iden- tify additional resources or other support necessary to implement this training. SEC. 9. Definitions. The terms ‘‘Tribal officials,’’ ‘‘policies that have Tribal implications,’’ and ‘‘agency’’ as used in this memorandum are as defined in Execu- tive Order 13175. The terms ‘‘Tribes’’ and ‘‘Tribal Na- tions’’ as used in this memorandum have the same defi- nition as the term ‘‘Indian Tribe’’ as defined in Execu- tive Order 13175. SEC. 10. Scope. Nothing in this memorandum shall be construed to impair or otherwise affect the ability of heads of agencies to set more specific or more stringent standards, or to incorporate other best practices, for conducting Tribal consultation. SEC. 11. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) Independent agencies are strongly encouraged to comply with the provisions of this memorandum. (e) The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register. J.R. BIDEN, JR. § 5302. Congressional declaration of policy (a) Recognition of obligation of United States The Congress hereby recognizes the obligation of the United States to respond to the strong ex- pression of the Indian people for self-determina- tion by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities. (b) Declaration of commitment The Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and re- sponsibility to, individual Indian tribes and to the Indian people as a whole through the estab- lishment of a meaningful Indian self-determina- tion policy which will permit an orderly transi- tion from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services. In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the de- velopment of strong and stable tribal govern- ments, capable of administering quality pro- grams and developing the economies of their re- spective communities. (c) Declaration of national goal The Congress declares that a major national goal of the United States is to provide the quan- tity and quality of educational services and op- portunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-deter- mination essential to their social and economic well-being. (Pub. L. 93–638, § 3, Jan. 4, 1975, 88 Stat. 2203; Pub. L. 100–472, title I, § 102, Oct. 5, 1988, 102 Stat. 2285.) Editorial Notes CODIFICATION Section was formerly classified to section 450a of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 1988—Subsec. (b). Pub. L. 100–472 added subsec. (b) and struck out former subsec. (b) which read as follows: ‘‘The Congress declares its commitment to the mainte- nance of the Federal Government’s unique and con- tinuing relationship with and responsibility to the In- dian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of pro- grams for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those pro- grams and services.’’ § 5303. Tribal and Federal advisory committees Notwithstanding any other provision of law (including any regulation), the Secretary of the Interior and the Secretary of Health and Human Services are authorized to jointly establish and fund advisory committees or other advisory bod- ies composed of members of Indian tribes or members of Indian tribes and representatives of the Federal Government to ensure tribal partici- pation in the implementation of the Indian Self- Determination and Education Assistance Act (Public Law 93–638) [25 U.S.C. 5301 et seq.]. (Pub. L. 101–644, title II, § 204, as added Pub. L. 103–435, § 22(b), Nov. 2, 1994, 108 Stat. 4575.) Editorial Notes REFERENCES IN TEXT The Indian Self-Determination and Education Assist- ance Act, referred to in text, is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. CODIFICATION Section was enacted as part of the Indian Self-Deter- mination and Education Assistance Act Amendments of 1990, and not as part of the Indian Self-Determina- tion and Education Assistance Act which comprises this chapter. Section was formerly classified to section 450a–1 of this title prior to editorial reclassification and renum- bering as this section. § 5304. Definitions For purposes of this chapter, the term— (a) ‘‘construction programs’’ means pro- grams for the planning, design, construction, repair, improvement, and expansion of build- ings or facilities, including, but not limited to, housing, law enforcement and detention facili-