“These principles recognize the importance of increasing understanding and addressing tribal concerns, past, present, and future.”
-DoD American Indian and Alaska
Native Policy, Preamble (1998)
DoD Policies, Instructions, and Guidance
In response to the Presidential Memorandum of January 26, 2021, Tribal Consultation and Strengthening Nation-to-Nation Relationships, this document outlines the Department’s commitment to improving implementation of the Executive Order 13175, Consultation and Coordination With Indian Tribal Governments.
Invitation to Federally Recognized Tribes to participate in virtual Tribal Consultations in September to discuss the Department of Defense Instruction 4710.02: DoD Interactions with Federally Recognized Tribes. Deadline for written comments extended to December 31, 2022.
This Policy was issued in 1998 by then Secretary Cohen and asserts the principles for DoD interacting and working with federally recognized tribes on a government-to-government basis. These principles establish the Department of Defense’s American Indian and Alaska Native Policy for interacting and working with federally-recognized American Indian and Alaska Native governments (a). These principles are based on tribal input, federal policy, treaties, and federal statutes. The DoD policy supports tribal self-governance and government-to-government relations between the federal government and tribes. Although these principles are intended to provide general guidance to DoD Components on issues affecting tribes (b), DoD personnel must consider the unique qualities of individual tribes when applying these principles, particularly at the installation level. These principles recognize the importance of increasing understanding and addressing tribal concerns, past, present, and future. These concerns should be addressed prior to reaching decisions on matters that may have the potential to significantly affect protected tribal resources, tribal rights, or Indian lands. This policy resulted in the development of DoD Instruction 4710.02 – DoD Interactions with federally recognized Tribes – Updated September 2018.
DoD Instruction 4710.02 – DoD Interactions with Federally Recognized Tribes establishes policy, assigns responsibilities, and provides procedures for DoD interactions with federally recognized tribes.
Alaska Implementation Guidance for DoDI 4710.02 (2020)
This guidance is designed to enhance the working relationship between the Department of Defense (DoD) Components in Alaska and Alaska Native Tribes through the implementation of the DoD’s 1998 American Indian and Alaska Native Policy and subsequent direction provided by DoD in DoD Instruction 4710.02 (2006; updated in 2018). This Alaska Implementation Guidance considers those situations and issues unique to the legal, cultural, and geographic context of Alaska. The Guidance addresses application of trust responsibilities, the unique definition of tribal land in Alaska, subsistence preferences for Alaska Natives, other protected rights, and logistical challenges of working on a government-to-government basis with 229 Tribes located throughout the vast state of Alaska.
The Policy Statement directs DoD Components to “respect tribal desires to keep information about culturally sensitive locations confidential to the extent legally possible” and provides general guidance for doing so.
Consultation With Native Hawaiian Organizations establishes policy, assigns responsibilities when proposing actions that may affect a property or place of traditional religious and cultural importance to an NHO, and provides a framework for DoD Components to develop localized processes to facilitate consultation.
DoDI 4715.16 – Cultural Resources Management establishes DoD policy and assigns responsibilities under the authority of DoD Directive (DoDD) 5134.01 (Reference (a)) and in accordance with DoDD 4715.1E (Reference (b)) to comply with applicable Federal statutory and regulatory requirements, Executive orders (E.O.s), and Presidential memorandums for the integrated management of cultural resources on DoD-managed lands.
The U.S. Departments of Defense, Interior, Agriculture, Energy, and the Advisory Council on Historic Preservation entered into a Memorandum of Understanding to work together to improve the protection of and tribal access to Indian sacred sites. To meet the requirements of the memorandum, interagency teams will gather information, evaluate resources, and develop recommendations and additional tools that will enhance agency protection of Indian sacred sites. For more information please visit http://www.fs.fed.us/spf/tribalrelations/sacredsitesmou.shtml.
The MOU affirms the signatory agencies’ commitment to protect tribal treaty rights in agency decision making processes and enhanced interagency coordination and collaboration.
Consistent with the Administration’s additional commitment to scientific integrity and knowledge- and evidence-based policymaking, the White House Office of Science and Technology Policy (OSTP) and the White House Council on Environmental Quality (CEQ) issue this memorandum to recognize Indigenous Traditional Ecological Knowledge (ITEK)—a form of Indigenous Knowledge3—as one of the many important bodies of knowledge that contributes to the scientific, technical, social, and economic advancements of the United States and to our collective understanding of the natural world.
DoD Component Policies, Instructions, Regulations, and Guidance
These instruction guides implement policy, assign responsibilities, and prescribe procedures for interactions with federally recognized tribes. In addition to the umbrella policies and instructions of the DoD, many DoD Components implement further instructions regarding matters involving American Indians and Alaska Natives, unique to their components.
Executive Order 12898 of February 16, 1994: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, directs federal agencies to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high adverse human health or environmental effects of its activities on minority and low-income populations.
Executive Order 13007 of May 24, 1996: Indian Sacred Sites, directs federal land managing agencies to accommodate access to, and ceremonial use of, Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites.
Executive Order 13175 of November 6, 2000: Consultation and Coordination With Indian Tribal Governments, establishes regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes.
Executive Order 14008 of January 27, 2021: Tackling the Climate Crisis at Home and Abroad, builds on and reaffirms actions to place the climate crisis at the forefront of the Nation’s foreign policy and national security planning.
Federal Laws of Interest for Consultation and Cultural Resources Management
The Alaska Native Claims Settlement Act was signed into law by President Richard M. Nixon on December 18, 1971. The settlement extinguished Alaska Native claims to the land by transferring titles to twelve Alaska Native regional corporations and over 200 local village corporations. A thirteenth regional corporation was later created for Alaska Natives who no longer resided in Alaska. ANCSA and related legislation produced changes in ownership of about 148,500,000 acres (601,000 km2) of land in Alaska once controlled by the Federal Government.
The American Indian Religious Freedom Act was passed on August 11, 1978, and seeks to protect and preserve for American Indians their inherent fight of freedom to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
The Archeological Resources Protection Act was passed on October 31, 1979, and seeks to protect archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals.
The Endangered Species Act (ESA) was signed into law by President Richard Nixon on December 28, 1973, and provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found.
The Native American Graves Protection and Repatriation Act was passed on November 16, 1990, and requires federal agencies and institutions that receive federal funding to return Native American cultural items and human remains to their respective peoples.
The National Environmental Policy Act (NEPA) was enacted in 1969 and signed into law in 1970 by President Richard M. Nixon, and was one of the first laws ever written that establishes the broad national framework for protecting our environment. NEPA’s basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.
The National Historic Preservation Act is legislation intended to preserve historical and archaeological sites in the United States of America. The act created the National Register of Historic Places, the list of National Historic Landmarks, and the State Historic Preservation Offices. NHPA was signed into law on October 15, 1966. In 1992, amendments to the Act increased protection for Native American and Native Hawaiian preservation efforts.
The Religious Freedom Restoration Act (RFRA) (1993) was signed into law by President Bill Clinton on November 16, 1993. It prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.