“Tribal consultation” refers to the federal government’s legal obligation to consult with Native American tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in.
The project need not be on tribal land for the tribal consultation requirement to apply. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other federal laws, mandate that the lead agency on each project must consult with all affected Indian tribes, on a government-to-government basis. This is true whether the project is on public or private land. The rule of thumb is that if a project needs federal permission to proceed, the federal agency considering it must identify the tribes in the project area and consult with them in a meaningful fashion before making any final decisions.
Click here to read the full GT Alert by Troy Eid, co-chair of Greenberg Traurig’s American Indian Law Practice.