Talking in Circles: TTACs and the Evolution of the Tribal Consultation Process

• In Event: Indigenous Politics

Abstract

On January 26th, 2021 President Biden issued the Presidential Memorandum on Tribal Consultation and Strengthening Nation to Nation Relationships which directed all federal agencies to submit to the Office of Management and Budget “a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175.” In response, all agencies subject to Executive Order 13175 submitted detailed consultation plans, including over 50 agencies which had never before developed formal consultation processes. The process of drafting, refining, and submitting these consultation policy proposals to OMB resulted in over 90 national-level Tribal consultations, focused exclusively upon developing or refining formal procedures. On November 30th, 2022, President Biden capitalized upon this momentum by issuing Presidential Memorandum on Uniform Standard for Tribal Consultation, which set forward further requirements for federal Tribal consultation practices. These standards were gleaned from the national-level Tribal consultation which saw hundreds of written testimonies submitted as part of those consultations. This two-year process prompted a revitalization of the Tribal consultation process which was left disjointed and disoriented by the Trump Administration’s erratic approach to Federal Indian law and policy. Tribal consultation, a process central to the Nation-to-Nation relationship between the US federal government and Tribal governments, had languished during the Trump administration, leaving many skeptical as to its continued utility as a tool for Indigenous self-determination. However, with this recommitment to consultation and its ideals, Indigenous leaders and activists have been quick to capitalize on the movement generated by the Biden Administration’s Presidential Memorandums to develop new pathways of communication with federal agencies—in particular, the establishment of over fifteen new Tribal Technical Advisory Councils (TTAC) which maintain regular and consistent communication with their particular federal agencies.
The establishment of TTACs (or committees, or groups, there is no uniform naming scheme for these entities) predates the Clinton Administration’s 2000 Executive Order 13175. TTACs can either be legislatively established—such as Treasury Tribal Advisory Committee established by Section 3 of the Tribal General Welfare Exclusion Act of 2014, Pub. L. 113-168—or administratively established—such as the Environmental Protection Agency’s establishment of National Tribal Operations Committee in 1994. The consistent theme for these entities, however, is that they consist of Tribal government representatives, said representatives are beholden to their particular Tribal Nations, they maintain regular communication with the federal agency, and that they have the capacity to initiate the Tribal consultation process. Until the January 2021 Presidential Memorandum, TTACs were an irregular feature of the Tribal consultation process. Their existence depended upon agency history and, often but not exclusively, agency commitment to working with Tribal governments. However, with the prompting of the January 2021 Presidential Memorandum, there has been a proliferation of TTAC and TTAC-like entities as the cornerstone of Federal agency Tribal consultation polities. Of the over 50 new consultation policies, more than half establish a TTAC or TTAC-like entity to work with agency staff on a myriad of issues confronting the smooth cooperation between federal agencies and Tribal governments. Indigenous activist and lobby groups such as the Self-Governance Communication and Education Tribal Consortium (SGCETC) have encouraged this movement—with some reservations—as providing another pathway for ensuring Tribal consultation occurs in a timely and respectful fashion. TTACs and TTAC-like entities until this point in time have remained an understudied element of the Tribal consultation process because they have an oddity—largely existing within the umbrella of DHHS—in an already disjointed series federal agency policies.
This paper provides a two-fold analysis: first, an overview of the Tribal consultation process as it stands after the Biden Administration’s determined revitalization of the process with a particular focus on what the establishment of uniform standards mean for Tribal consultation policy and practice going forward. Second, this paper analyzes the role that TTACs and TTAC-like entities have played historically within federal-Tribal consultation and then considers what the proliferation of these entities could mean for formalizing and regularizing of Tribal consultation. This paper argues, in line with arguments put forward by SGCETC, that regular establishment of TTACs and TTAC-like entities within federal agencies provides a necessary correction to the power imbalances that have historically plagued the Federal-Tribal consultation process.

Author

• Dani Delaney, Queen's University