SM 500.7 - Consultation with Indian and Alaska Native Tribes, Alaska Native Corporations, and Native Hawaiian Organizations

Issuance Number:      500.7

Subject:                            Consultation with Indian and Alaska Native Tribes, Alaska Native Corporations,                                                                and Native Hawaiian Organizations 

Issuance Date:             11/22/2024

Expiration Date:         11/22/2029

Responsible Office:    Office of Science Quality and Integrity; Office of Tribal Relations

Instruction:                  This is a new Survey Manual (SM) chapter.

Approving Official:    /s/ Craig Robinson

                                       Director, Office of Science Quality and Integrity

1.     Purpose and Scope.  This SM chapter supplements the policies of the Department of the Interior (DOI), developed in formal consultation with federally recognized American Indian and Alaska Native Tribes (Tribes), Alaska Native Claims Settlement Act Corporations (ANCs), and Native Hawaiian Organizations (NHOs) in 2022, and are in accordance with DOI Manual (512 DM 4 Section 4.5.C.(2) and 512 DM 6 Section 6.5.C.(1)).  This chapter provides commensurate Bureau-level policies for how the U.S. Geological Survey (USGS or the Bureau) notifies and engages in consultation with Tribes, ANCs, and NHOs about USGS activities that may have potential impact upon them.  Information about the USGS general policies pertaining to relations with Tribes, ANCs, and NHOs are found in SM 500.6, Relations with American Indian and Alaska Native Tribes, Alaska Native Corporations, and Native Hawaiian Organizations.

2.     Authorities.

A.  Alaska Native Claims Settlement Act (42 U.S. Code (U.S.C.) 1601, et seq.)

B.  National Environmental Policy Act (NEPA) (42 U.S.C. 4331(a) and 4332(2)(C); 40 CFR 1500-1508)

C.  National Historic Preservation Act (NHPA) (54 U.S.C. 300101–320303)

D.  Executive Order No. 13175, “Consultation and Coordination with Indian Tribal Governments” (2000)

E.  Presidential Memorandum on Uniform Standards for Tribal Consultation (2022)

F.  Secretarial Order No. 3317, “DOI Policy on Consultation with Indian Tribes” (2011)

G.  Secretarial Order No. 3335, “Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries” (2014)

H.  DOI Policy on Consultation with Indian Tribes, 512 DM 4 (2022), and Procedures for Consultation with Indian Tribes, 512 DM 5 (2022)

I.  DOI Policy on Consultation with Alaska Native Claims Settlement Act Corporations, 512 DM 6 (2022), and DOI Procedures for Consultation with Alaska Native Claims Settlement Act Corporations, 512 DM 7 (2022)

3.    Definitions.

A.  Tribe or Tribal Nation means an Indian or Alaska Native 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. 5131).  

B.  Alaska Native Claims Settlement Act Corporation (also known as an Alaska Native Corporation or ANC) has the same meaning as defined in SM 500.6.  For purposes of this chapter, unless specified otherwise, any reference to Tribe(s) applies to ANC(s) but in a government-to-corporation relationship. 

C.  Native Hawaiian Organization (NHO) has the same meaning as defined in SM 500.6. For purposes of this chapter, unless specified otherwise, any reference to Tribe(s) applies to NHO(s) but in a government-to-sovereign relationship, with the NHO(s) representing the sovereign Native Hawaiian Community. 

D.  Notification means providing a Tribe with advance written notice (early in the planning stages) of an impending Bureau activity that may have direct substantial impact on the Tribe, its members, or its resources. A notification letter includes an invitation to the Tribe(s) to participate in formal consultation.

E.  Formal Consultation is a government-to-government process based on a bilateral recognition of sovereignty and is generally focused on a given issue or set of issues that may have direct substantial impact on a Tribe or Tribes.  Both Tribal and Bureau officials with decision-making authority meet to discuss and collaboratively resolve any concerns regarding the proposed action with Tribal implications.  

F.  Substantial Direct Effect or Action with Tribal Implications may include any USGS action or policy that impacts the governments, members, rights, resources, cultural practices, or sacred sites of Tribes or that affects a Tribe’s relationship with DOI or Bureau.  (Refer to 512 DM 4.3.B. for a more detailed definition.)  Further, a Tribe may initiate consultation with the USGS when it believes that the Bureau is considering an action with substantial direct effect.   

G.  Indigenous Knowledge (IK) is a body of observations, oral and written knowledge, innovations, technologies, practices, and beliefs developed by Indigenous Peoples through interaction and experience with the environment.  Refer to of 301 DM 7, Section 7.4.A for a more detailed definition.  Detailed guidance on the inclusion of IK in USGS science products will be issued separately.

4.    Determining Whether an Invitation to Consult is Required.

A.  General Rule.  When planning actions with substantial direct effect upon Tribes, the USGS will notify and invite Tribes to consult on those planned actions in accordance with section 5.  The Bureau considers—at a minimum—any of its activities that pertain to lands under a Tribe’s sovereign jurisdiction or to its ceded lands with reserved rights as having substantial direct effect.  However, as the interests of Tribes may go well beyond such boundaries (refer to 512 DM 4 Figure 1), USGS programs and scientists should broadly and carefully consider whether activities outside these boundaries may have substantial direct effect.  With that in mind, the following distinctions among various land categories need to be taken into consideration:

(1)  Reservations and trust lands are under a Tribe’s sovereign jurisdiction.  Note: While reservation and trust lands have specific legal definitions, the terms are often used interchangeably.  Reservations are also sometimes designated as pueblos or rancherias.  Tribal land bases vary widely.  For example, a Tribe may have a single contiguous reservation, have no reservation but have trust lands, or have a combination of a main reservation and smaller trust parcels outside the reservation’s exterior bounds.  Some Tribes have no reservation or trust lands whatsoever (this is especially the case with most Alaska Native Villages). 

(2)  Allotments.  Under the General Allotment Act of 1887 and similar statutes, some reservations were divided into smaller parcels and granted to individual Native Americans.  Some but not all allotments are under Tribal jurisdiction.  If they are, both the Tribe and individual allotment holders will be included in notification and consultation requirements outlined in this chapter.  In cases where a Tribe does not have jurisdiction, the Bureau will provide notification to individual allotment holders only. 

(3)  Ceded lands with reserved rights refer to areas ceded by Tribes to the United States by treaty but for which Tribes have retained rights (specified within the treaty) for their members to hunt, fish, and (or) gather other resources. Such rights are usually retained in perpetuity.  While these lands are not under their jurisdiction, Tribes have both a right and an interest in the resources of these lands. 

(4)  Conveyed lands are those lands in Alaska to which title has been conveyed from the Federal government to regional or village ANCs.

(5)  Ancestral or aboriginal lands are traditional homelands of Indigenous people.  While Tribes have lost jurisdiction over those lands, their ancestral connections to them often remain extremely strong.  Congress has sought to protect these connections through statutes, such as the NHPA, requiring the consideration of the impact federally funded or licensed projects could have on any cultural resources (archeological sites, burial and non-burial, and sites with cultural and religious significance) that may be present.

(6)  Fee simple lands may be owned by a Tribe or individual Native American but are not trust lands.  Unless they are within the exterior bounds of the reservation, the Tribe does not have jurisdiction over them. 

B.  Additions to the General Rule.  The USGS will provide notification and offer formal consultation due to special circumstances in the following states: 

(1)  Alaska.  While Alaska Native Villages generally have neither reservation nor trust lands, the USGS will invite the governments of those Villages to consult on proposed activities that may occur within their boundaries. (Note above the requirement at 4.A(4), which is also unique to Alaska, to invite ANCs where appropriate.)

(2)  Hawaii.  The USGS will notify and invite all relevant NHOs within a proposed project area (regardless of land status) in accordance with the listing at https://www.doi.gov/hawaiian/nholist).

(3)  Oklahoma.  In the wake of the 2020 U.S. Supreme Court decision in McGirt v. Oklahoma, matters pertaining to Tribal jurisdiction of land in Oklahoma are evolving.  Until such matters are resolved, the USGS will initially invite Tribal governments to consult on proposed activities that may occur not only on already recognized reservation and trust lands but also on lands that have been designated by the U.S. Census Bureau as “Tribal Statistical Areas,” with the understanding that the extent of the Tribe’s sovereignty may be limited and that other jurisdictions or landholders may need to be involved in the Bureau’s decision-making process. 

C.  Exceptions to the General Rule. The need for the USGS to notify and offer formal consultation is generally precluded in these six instances:

(1)  If a project is being funded in whole or part by a Tribe and (or) the Bureau of Indian Affairs at a Tribe’s request, consultation is unnecessary as the Tribe would have already negotiated the terms of the project and indicated its approval for the project by entering into a funding agreement.  This is also the case if a Tribe has specifically requested that the Bureau carry out a project, even if the Tribe is not providing funding for it. 

(2)  If a proposed project will (a) be conducted on lands under a Tribe’s jurisdiction or (b) will include IK, the USGS must obtain the Tribe’s written consent in advance, which would satisfy the consultation requirement.

(3)  If more than one bureau or agency is involved in a project, the parties involved should designate in writing a lead bureau/agency to oversee the notification and consultation process.  If the USGS is not leading the project, the lead bureau/agency will manage the notification and consultation process on behalf of the whole Federal government, with the USGS actively coordinating with the lead bureau/agency.

(4)  If the activity is global or national in scope, provides information or imagery at a relatively low resolution, and is released publicly on a continual basis, consultation would be impractical.  Such situations are rare with the most notable case being Landsat activities.

(5)  When the Bureau develops interpretive data products presented in low resolution/detail, such as maps of the nation or a region rendered in small scale (for example, a map showing the prevalence of nickel in the continental United States https://pubs.usgs.gov/sir/2017/5118/sir20175118_element.php?el=28), notification and consultation is not required provided that (a) the project does not involve the collection of new data on, over, or near lands under Tribal jurisdiction; and (b) the data can be aggregated such that the product does not reveal sensitive Tribal information.  In creating these low resolution/detail interpretive products, the Bureau may make inferences about Tribal lands by interpolating or extrapolating data collected elsewhere. 

(6)  When the Bureau develops new products or publications based on publicly available data, notification is usually not necessary.  However, if such a new product/publication may have substantial direct impact on a Tribe, the Bureau will provide notification and offer consultation.

5.    Notification.

A.  Initial Letter.  Notification letters must include sufficient detail of the proposed action to allow Tribal leaders to determine if they want to accept the offer for formal consultation or engage in less formal means such as staff-level conversation. Adequate notice includes a description of the type of data being collected; the method and timeframe of data collection; all partners involved in the project; the use, sharing, and publication of data; potential benefits to the Tribe; potential adverse impact to the Tribe; an invitation for formal consultation; and an opportunity to request additional time to respond.  The USGS will normally provide a minimum of 45 days’ notice of a planned activity.  If exceptional circumstances prevent 45 days’ notification, the Bureau will provide an explanation in the notification letter.  If—in rare cases—litigation, legal requirements, or natural disaster emergencies prevent the Bureau from advance notification altogether, the Bureau will invite Tribes to consult as soon as possible (such as after the impacts of a natural disaster have subsided).  The signatory for the notification letter is typically a Senior Executive Service member of USGS, normally the Regional Director (RD), and the letter should be sent in both paper and electronic forms.   There are circumstances when letters may come from national program or mission area officials in coordination with applicable regional offices.

B.  Notification Follow-up.  Each region will establish a process for following up on notification letters to demonstrate good faith in making reasonable attempts to ensure that Tribes have received the letters and to offer assistance.  The region will document all attempts at follow-up.  If a Tribe is non-responsive, the RD will determine if good-faith follow-up efforts have been made and weigh potential impacts on the Tribe before allowing the project to proceed.  Likewise, mission areas with relevant national programs will establish follow-up notification procedures in which the Associate Director (AD), in coordination with any relevant RDs, will determine whether good-faith follow-up efforts have been made.

6.    Consultation.

A.  Participants.  

(1)  For most USGS consultations, the RD will act as the principal representative for the U.S. Government. However, ADs or other Senior Executive Service members may serve as the principal when a consultation is related to a national program, is nationwide or multi-regional, or at the request of the USGS Director.  Regardless of who serves as the principal, the cognizant RDs and ADs will collaborate on agenda items in advance of the consultation.

(2)  It may be appropriate to have technical experts participate in the consultation; however, the number of persons included in the consultation should be kept to a minimum. 

(3)  Usually, the Regional Tribal Liaison (RTL) will coordinate with the Tribe regarding logistics for the consultation (see Section C below).  When a consultation is related to a national program or is nationwide or multi-regional, the cognizant Mission Area Tribal Relations Advisor (MATRA) will serve as the coordinator.  The RTL or MATRA may also participate in the consultation at the request of the principal.

(4)  The Head of the USGS Office of Tribal Relations (OTR) will participate in consultations involving issues with Bureau-wide implications and may participate in consultations on other issues at the request of the principal.

B.  Venue.  In the case of a consultation with a single Tribe, the Bureau will give the Tribe the option as to whether to hold the consultation in person or by video teleconference (or in a hybrid style).  Usually, an in-person consultation is held at the Tribe’s reservation.  When multiple Tribes are involved, the consultation will likely be held by video teleconference.  When all Tribes are invited, the consultation may be held by a series of video teleconferences.

C.  Agenda and Logistics.  The RTL (or MATRA) will coordinate with staff members at the Tribe to determine a date and time for the consultation, as well as to establish the agenda and meeting protocols and to facilitate the handling of advance materials and other logistics as needed.  The RTL may also procure a small gift to present to the Tribe using reception and representation fund authority (see SM 500.6). If the USGS will be hosting the Tribe, such authority may be used to pay for light refreshments.

D.  Consultation Session.  The goal in consultation is to have Tribal leaders and Federal representatives engage in respectful dialog based on mutual understanding of the issues.  During the consultation session(s), the Federal representatives will be open and candid with the Tribal representatives, respecting Tribal sovereignty and considering ways to include Tribal views and—in some cases—Indigenous Knowledge in the decision-making processes.  The USGS will attempt to reach consensus with Tribes to the maximum extent possible and in accordance with the DOI Consensus-Seeking Model (refer to 512 DM 4, Figure 1).  

E.  In the Event of a Lack of Consensus.  If consensus cannot be reached or USGS program management determines that the Bureau must move forward with an activity or decision over the express objections of a Tribe, the cognizant RD or AD, through the Director of the Office of Science Quality and Integrity (OSQI), will work with the USGS Director to determine how best to proceed.

F.  Consultation Follow-up/Closure.  After the consultation period, the principal will transmit to the participating Tribe(s) (or for national and regional consultations or if appropriate, publish on the website) documentation of the consultation that describes: (1) a summary of Tribal input received; (2) an explanation of how that Tribal input was addressed; and (3) the reasoning for any instance in which Tribal suggestions were not included in the Bureau’s action or why consensus could not be attained.

7.    Other Forms of Tribal Consultation.  The type of formal government-to-government consultation described in this chapter is altogether different from other forms of consultation with Tribes that may be required under various environmental protection laws whenever the Bureau plans to undertake a project.  Examples of such statutes include the NEPA, and Section 106 of the NHPA.  The Office of Management Services, Environmental Management Branch will assist project managers and scientists in navigating applicable requirements and provide them with guidance for how to engage in such consultations with assistance from the RTL.

8.    Responsibilities.

A.  USGS Director, Deputy Director for Administration and Policy, and Deputy Director for Operations.  The Director and Deputy Directors ensure that the Bureau carries out the notification and consultation process in compliance with this SM chapter.  The Director may appoint any USGS Senior Executive Service member to serve as the Federal government’s principal representative for a consultation.  If consensus between the USGS and a Tribe cannot be met through the consultation process, the USGS Director will determine how best to proceed.

B.  Regional Directors (RDs) normally serve as the Government’s principal representative at consultations and are usually the signatories on Tribal notification letters.

C.  Associate Directors (ADs) may serve as the Government’s principal representative at consultations and as signatories on Tribal notification letters in connection with their national program duties or at the request of the USGS Director or Regional Director. 

D.  Director of Office of Science Quality and Integrity (OSQI).  If consensus cannot be reached between the USGS and a Tribe through consultation, the OSQI Director, in consultation with the cognizant AD or RD, works with the USGS Director to determine how best to proceed. 

E.  The Head of OTR oversees the Bureau’s Tribal consultation process and reports annually to DOI on consultation activities in accordance with 512 DM 4.  The Head of OTR participates in consultations involving issues with Bureau-wide implications and may participate in consultations on other issues at the request of the principal representative.

F.  Regional Tribal Liaisons (RTLs) notify the Head of OTR of any consultations scheduled or taking place within the region, and participate in consultations as requested by the RD, providing documentation as needed.  Usually, the RTL will coordinate with the Tribe regarding logistics and protocols for the consultation, as well as handling post-consultation correspondence.

G.  Mission Area Tribal Relations Advisors (MATRAs) will serve in lieu of RTLs as the coordinators in the notification and consultation processes when consultation topics specifically relate to the mission areas or are national in scope. The MATRA may also participate in the consultation at the request of the principal.

H.  The Office of Management Services, Environmental Management Branch determines whether a proposed project may require specific types of Tribal consultation as required by various environmental protection statutes (refer to Section 7).

I.  Science Centers and National Program Offices are responsible for adhering to Bureau policies set forth in this SM chapter and following procedures housed on the OTR intranet site.