Executive Order 13175 - Consultation and Coordination with Indian Tribal Governments

See § 8: "Independent regulatory agencies are encouraged to comply with the provisions of this order."

Principles and Criteria

This EO sets forth principles and criteria to which agencies must adhere in policymaking that has tribal implications. These include respecting Indian tribal self-government and sovereignty, consulting with tribal officials on the need for Federal standards, and providing “the maximum administrative discretion possible” where Indian tribal governments administer Federal statutes and regulations.

The EO covers policies with tribal implications. This means “regulations, legislative comments or proposed legislation, 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.”

1. Process. Agencies must have an “accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

2. Tribal Consultation and Coordination Official. Agencies must designate an official principally responsible for implementing the EO.

3. Compliance Costs and Preemption. To the extent practicable and permitted by law, agencies shall not issue rules with tribal implications that (1) impose “substantial direct compliance costs on Indian tribal governments,” if not required by statute, unless they comply with a or b, below, or (2) preempt tribal law, unless they comply with b, below:

a. Funds Provided. The Federal government must provide money for the direct compliance costs of the Indian tribal governments.

b. Tribal Summary Impact Statement.  

(1) Consultation. Agencies must consult with tribal officials “early in the process of developing the proposed regulation.”

(2) Preamble. In a separately identified portion of the rule’s preamble, agencies must provide a tribal summary impact statement describing (a) the prior consultations with tribal officials, (b) the nature of the officials’ concerns and the agencies’ justification for the rule, and (c) the extent to which the concerns have been met.

(3) Written Communications. Agencies must make available to OMB tribal officials’ written communications.

4. Consensual Mechanisms. Agencies must use consensual mechanisms, including negotiated rulemaking, where appropriate, for developing regulations on issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other rights.

Waivers

As appropriate, practicable, and permitted by law, agencies must streamline the processes for waivers of statutes and rules for Indian tribes, consider increasing opportunities for using “flexible policy approaches,” and make decisions on waivers within 120 days.

OMB Review 

Agencies submitting to OMB under EO 12866 final rules with tribal implications must include a certification from their Tribal Consultation and Coordination Official that this EO’s requirements were “met in a meaningful and timely manner.”