RESPECT Act

I 117TH CONGRESS 1ST SESSION H. R. 3587 To prescribe procedures for effective consultation and coordination by Federal agencies with federally recognized Tribal Governments regarding Federal Government actions that impact Tribal lands and interests to ensure that meaningful Tribal input is an integral part of the Federal decision- making process. IN THE HOUSE OF REPRESENTATIVES MAY 28, 2021 Mr. GRIJALVA (for himself, Ms. LEGER FERNANDEZ, Mr. HUFFMAN, Mrs. NAPOLITANO, Mr. COHEN, Ms. TLAIB, Mr. SOTO, Mr. GARCI´A of Illinois, and Mr. LOWENTHAL) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To prescribe procedures for effective consultation and coordi- nation by Federal agencies with federally recognized Tribal Governments regarding Federal Government ac- tions that impact Tribal lands and interests to ensure that meaningful Tribal input is an integral part of the Federal decision-making process. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 3587 IH SECTION 1. SHORT TITLE. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Requirements, Expectations, and Standard Procedures 3 for Effective Consultation with Tribes Act’’ or the ‘‘RE- 4 SPECT Act’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings and purposes. Sec. 4. Sense of Congress. Sec. 5. Definitions. TITLE I—STANDARDS FOR CONSULTATION Sec. 101. Standards for consultation. TITLE II—CONSULTATION PROCEDURES Sec. 201. Assessing Tribal impacts. Sec. 202. Consultation stage. Sec. 203. Decision stage for proposed activity. Sec. 204. Decision stage for proposed regulatory action. TITLE III—DOCUMENTATION AND REPORTING Sec. 301. Documentation and reporting. TITLE IV—IMPLEMENTATION AND TRAINING Sec. 401. Designated agency official. Sec. 402. Consultation policy. Sec. 403. Training. TITLE V—TRIBAL SOVEREIGNTY Sec. 501. Tribal sovereignty. Sec. 502. Sensitive Tribal information. TITLE VI—JUDICIAL REVIEW Sec. 601. Judicial review. SEC. 3. FINDINGS AND PURPOSES. 8 (a) FINDINGS.—Congress finds that— 9 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 3587 IH (1) the United States has a unique, legally af- 1 firmed government-to-government relationship with 2 Tribal Governments, as set forth in the Constitution 3 of the United States, treaties, statutes, Executive or- 4 ders, and court decisions; 5 (2) the United States recognizes the right of 6 Tribal Governments to self-govern and supports 7 Tribal sovereignty and self-determination; 8 (3) the United States, through treaties, stat- 9 utes, and historical relations, has defined a unique 10 trust relationship and responsibility to protect and 11 support Tribal Governments; 12 (4) owing to this trust relationship, the United 13 States has a responsibility to consult with Tribal 14 Governments on a government-to-government basis 15 when formulating policies and undertaking activities 16 that may have impacts on Tribal lands and interests; 17 (5) procedures for such consultation should be 18 designed and structured to give Tribal Governments 19 the opportunity to provide meaningful, informed 20 input throughout the development and decision-mak- 21 ing processes; 22 (6) increasing Federal and Tribal capacities for 23 effective consultation while building institutional 24 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 3587 IH knowledge fosters greater efficiency and will benefit 1 future actions; 2 (7) the consultation process should be formal- 3 ized according to best practices that are designed 4 and administered by the agency and that fulfill the 5 legal requirements mandated by this Act; 6 (8) consulting with Tribal Governments during 7 the formulation of long-term management plans re- 8 duces the likelihood of project delays and increases 9 the efficiency of project implementations; and 10 (9) effective consultation demands ongoing, re- 11 spectful communication between agencies and Tribal 12 Governments. 13 (b) PURPOSES.—The purposes of this Act are— 14 (1) to establish and support a process of reg- 15 ular, meaningful consultation and collaboration with 16 Tribal Governments in the initiation of Federal ac- 17 tivities and the development of Federal policies and 18 regulations that impact Tribal lands and interests; 19 (2) to strengthen the United States govern- 20 ment-to-government relationship with Tribal Govern- 21 ments; and 22 (3) to establish minimum standard procedures 23 to ensure the above goals are achieved. 24 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 3587 IH SEC. 4. SENSE OF CONGRESS. 1 It is the sense of Congress that— 2 (1) consultation constitutes more than simply 3 notifying an Tribal Government about a planned un- 4 dertaking; 5 (2) effective, meaningful consultation requires a 6 two-way exchange of information, a willingness to 7 listen, an attempt to understand and to genuinely 8 consider each other’s opinions, beliefs, and desired 9 outcomes, and a seeking of agreement on how to 10 proceed concerning the issues at hand; and 11 (3) consultation can be considered effective and 12 meaningful when each party demonstrates a genuine 13 commitment to learn, acknowledge, and respect the 14 positions, perspectives, and concerns of the other 15 parties and when Federal agencies accommodate 16 Tribal concerns to the extent feasible and consistent 17 with applicable law. 18 SEC. 5. DEFINITIONS. 19 For the purposes of this Act: 20 (1) ACTIVITY.—The term ‘‘activity’’ means any 21 plan, project, or program funded in whole or in part 22 under the direct or indirect jurisdiction of a Federal 23 agency, including— 24 (A) those carried out by or on behalf of an 25 agency; 26 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 3587 IH (B) those carried out with Federal finan- 1 cial assistance; 2 (C) those requiring a Federal permit, li- 3 cense, or approval; and 4 (D) those subject to state or local regula- 5 tion administered pursuant to a delegation or 6 approval by a Federal agency. 7 (2) AGENCY.—The term ‘‘agency’’ means any 8 authority of the United States that is an agency 9 under section 551 of title 5, United States Code. 10 (3) LEAD AGENCY.—The term ‘‘lead agency’’ 11 means a designated agency that will fulfill the collec- 12 tive consultation responsibilities under this Act if 13 more than one agency is involved in an activity or 14 regulatory action. Any agency that does not des- 15 ignate a lead agency shall remain individually re- 16 sponsible for the consultation responsibilities of that 17 agency under this Act. 18 (4) MEMORANDUM OF AGREEMENT.—The term 19 ‘‘memorandum of agreement’’ means a document 20 that records the terms and conditions agreed upon 21 by an agency, or lead agency, and a Tribal Govern- 22 ment or designated Tribal Leader Task Force 23 through the consultation process regarding an activ- 24 ity or regulatory action. 25 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 3587 IH (5) NEW DISCOVERY.—The term ‘‘new dis- 1 covery’’ means any unexpected development that oc- 2 curs during the course of an activity, such as the 3 discovery of a new archeological site, unanticipated 4 impacts on organisms or ecosystems, or the realiza- 5 tion of unintended consequences that may have im- 6 pacts on Tribal lands and interests. 7 (6) REGULATORY ACTION.—The term ‘‘regu- 8 latory action’’ means any regulation, policy, guid- 9 ance, or grant funding formula change that is pro- 10 posed by an agency. 11 (7) SACRED SITE.—The term ‘‘sacred site’’ 12 means any geophysical or geographical area or fea- 13 ture that is identified by a Tribal Government— 14 (A) as sacred by virtue of its established 15 religious significance to, or ceremonial use by, 16 a Tribal religion; or 17 (B) to be of established cultural signifi- 18 cance. 19 (8) STANDARD METHOD OF COMMUNICATION.— 20 The term ‘‘standard method of communication’’ 21 means the mode of communication that the agency 22 uses in the typical course of communicating with 23 persons outside the Federal Government. 24 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 3587 IH (9) STANDARD PROCESS.—The term ‘‘standard 1 process’’ means a process for Federal agency and 2 Tribal Government interactions agreed to by both 3 parties through consultation and certified in a 4 memorandum of agreement that applies to certain 5 specified activities or regulatory actions, or to lim- 6 ited categories of activities or regulatory actions. 7 (10) TRIBAL GOVERNMENT.—The term ‘‘Tribal 8 Government’’ means the governing body of any In- 9 dian or Alaska Native Tribe, band, nation, pueblo, 10 village, community, component band or component 11 reservation, individually identified (including par- 12 enthetically) in the list published most recently as of 13 the date of enactment of this Act pursuant to sec- 14 tion 104 of the Federally Recognized Indian Tribe 15 List Act of 1994 (25 U.S.C. 5131). 16 (11) TRIBAL IMPACT.—The term ‘‘Tribal im- 17 pact’’ means any Federal action that may have an 18 impact on one or more Tribal Governments on mat- 19 ters, including— 20 (A) Tribal cultural practices, lands, re- 21 sources, or access to traditional areas of cul- 22 tural or religious importance; 23 (B) Tribal treaty-protected rights; 24 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 3587 IH (C) the ability of a Tribal Government to 1 govern or provide services to its members; 2 (D) a Tribal Government’s formal relation- 3 ship with the Federal Government; or 4 (E) the consideration of the Federal Gov- 5 ernment’s trust responsibility to Tribal Govern- 6 ments. 7 (12) TRIBAL LEADER TASK FORCE.—The term 8 ‘‘Tribal Leader Task Force’’ means a task force that 9 is collaboratively determined by affected Tribal Gov- 10 ernments. 11 TITLE I—STANDARDS FOR 12 CONSULTATION 13 SEC. 101. STANDARDS FOR CONSULTATION. 14 (a) SCOPE.—Consultation with Tribal Governments 15 shall occur before undertaking any proposed Federal activ- 16 ity or finalizing any Federal regulatory action that may 17 have Tribal impacts. Additionally, consultation with Tribal 18 Governments shall occur for all activities that would affect 19 any part of any Federal land that shares a border with 20 Indian Country, as defined in section 1151 of title 18, 21 United States Code, but is not limited to activities on such 22 lands. 23 (b) LIMITATION.—Nothing in this Act shall— 24 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 3587 IH (1) exempt an agency from additional consulta- 1 tion required under any other law or from taking 2 any other consultative actions as required by any 3 other law or agency prerogative in addition to those 4 required by this Act; or 5 (2) preclude an agency from additional con- 6 sultation that complies with agency regulations for 7 consultation, advances agency consultation practices, 8 or supports agency efforts to build or strengthen 9 government-to-government relationships with Tribal 10 Governments. 11 TITLE II—CONSULTATION 12 PROCEDURES 13 SEC. 201. ASSESSING TRIBAL IMPACTS. 14 As early as possible in the planning stage of an activ- 15 ity or a regulatory action, the agency, or lead agency, 16 shall— 17 (1) prepare a Tribal Impact Statement that 18 identifies any potential Tribal impacts of the pro- 19 posed activity or regulatory action. At a minimum, 20 the Tribal Impact Statement shall include the scope 21 of the activity or regulatory action being considered, 22 including any geographic areas important to Tribal 23 Governments that might be affected, as well as a list 24 of all affected Tribal Governments; 25 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 3587 IH (2) make a good faith effort to identify areas 1 that contain sacred sites important to Tribal Gov- 2 ernments, whether such sacred sites are explicitly 3 known to an agency or not; and 4 (3) publish the completed Tribal Impact State- 5 ment in the Federal Register, excluding all informa- 6 tion designated as sensitive by a Tribal Government 7 pursuant to section 502, before any further action 8 on the proposed activity or regulatory action. 9 SEC. 202. CONSULTATION STAGE. 10 (a) INITIAL CONSULTATION OUTREACH.—The agen- 11 cy, or lead agency, shall— 12 (1) transmit, via the agency’s standard method 13 of communication, a formal request for a consulta- 14 tion meeting, along with along with a copy of the 15 proposed activity or regulatory action as well as copy 16 of the Tribal Impact Statement as prepared accord- 17 ing to section 201, to each affected Tribal Govern- 18 ment identified in the Tribal Impact Statement. In 19 the case of a proposed activity, the documents shall 20 also be transmitted to relevant Tribal governmental 21 agencies (including the Tribal Historic Preservation 22 Officer or cultural resource manager), and relevant 23 non-Tribal stakeholders (including the State Historic 24 Preservation Officer and local governments that 25 VerDate Sep 11 2014 06:14 Jun 26, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3587.IH H3587 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 3587 IH have jurisdiction on any affected land via agreement 1 with the agency); 2 (2) at the request of an affected Tribal Govern- 3 ment, transmit, via the agency’s standard method of 4 communication, a copy of the Tribal Impact State- 5 ment and the letter requesting a consultation mee [Text truncated for display. Full text available on Congress.gov.]