Dear Tribal Leader Letter Regarding Alaska Land into Trust Consultations

Here. The letter is dated July 2–sorry for the delay in posting.

Public Meeting
Wednesday, August 1, 2018
1 :00 p.m. -3:00 p.m.
Juneau, AK

Tribal Consultation
Friday, August 3, 2018
1 :00 p.m. -3 :00 p.m.
Ketchikan, AK

ANC Consultation
Wednesday, October 17, 2018
1:00 p.m. -3:00 p.m.
Anchorage, AK

Tribal Consultation
Sunday, October 21, 2018
1 :00 p.m. -3 :00 p.m.
Anchorage, AK

Tribal Consultation
Wednesday, December 5, 2018
1:00 p.m. -3:00 p.m.
Bethel, AK

Tribal Consultation
Friday, December 7, 2018
1:00 a.m. -3:00 p.m.
Kotzebue, AK

Tribal Consultation
Wednesday, December 12, 2018
1:00 p.m. -3:00 p.m.
Tel: 877-716-4291
Passcode: 6919058

If you would like to provide written input, please email your comments to by midnight Eastern Standard Time on December 20, 2018.

Dear Tribal Leader Letter Announcing Consultation Dates Regarding Infrastructure (Pipeline) Decisions

Here. Additional information here along with dates and locations of the listening sessions.

Recent events have highlighted the need for a broader review and consultation as to how, prospectively, Federal decisionmaking on infrastructure projects can better allow for timely and meaningful tribal input. On behalf of the Department of the Interior, Department of Justice, Department of the Army, and other Federal agencies, we invite you to consultations on how the Federal Government can better account for, and integrate tribal views, on future infrastructure decisions throughout the country. Consistent with our nation-to-nation relationship, our consultations are with tribal leaders and your designated staff. In particular, we have identified the following questions we seek your input on:

(1) How can Federal agencies better ensure meaningful tribal input into infrastructure-related reviews and decisions, to protect tribal lands, resources, and treaty rights within the existing statutory framework?

(2) Should the Federal agencies propose new legislation altering the statutory framework to promote these goals?

We will provide a framing paper with additional detail on these questions, including a description of the statutory framework currently in place. While these questions are of particular interest to the Federal agencies, we welcome any input relevant to the broader topic.

Tribal Title IV-E Consultation Calls with Children’s Bureau


Children’s Bureau to Host Tribal Consultations

Title IV-E Conference Calls Scheduled for March 8th and 10th

 On February 12, 2016, the Children’s Bureau of the U.S. Department of Health and Human Services announced two tribal consultation calls regarding a new round of Title IV-E Foster Care program development grants. Title IV-E funds placement activities related to foster care, relative guardianship, adoption, and independent living services.

 This consultation opportunity comes after a 2015 General Accountability Office study of tribes’ experiences in developing a Title IV-E Foster Care program. NICWA strongly encourages any tribe that has an interest in the program to participate in the consultation or submit written comments. Tribal members are encouraged to forward this announcement on to their tribal leaders to help publicize this opportunity.

See the GAO report here.

 There have been fewer than expected tribes participating in the program to date. The consultations will provide interested tribes with information on the Title IV-E program and a chance to share their concerns or questions regarding Title IV-E and the development grants. 

 The bureau will hold tribal consultation calls to discuss this opportunity on two dates:

  • Tuesday, March 8, 2016 (11:00 am PT; 2:00 pm ET)
  • Thursday, March 10, 2016 (11:00 am PT; 2:00 pm ET)

The call-in number for both consultation calls is: 1-888-220-3087, Passcode: 8699239

Two Recent ICWA Related Reports

Children’s Bureau (part of the U.S. Dept of Health and Human Services, Administration for Children and Families) Report analyzing the Child and Family Service Plans (CFSP) for tribal-state consultation and collaboration on ICWA compliance.


PDF(nearly 300 pages).

(I’m going to note that while the CFSPs are required by the Feds for funding, the states self-report the information in the CFSPs. Whether tribes would agree with what the states reported, or whether what they reported would be considered “consultation,” is not addressed in this report.

It might be worth it for tribes to review this report or their state’s individual CFSP [which are usually available online] to see what they say, and perhaps let the Children’s Bureau know if the tribe disagrees. This is one of the few areas where federal funding is remotely tied to ICWA compliance. In case you’re wondering, here is what the federal Administration for Children and Families considers consultation. ACF Consultation Policy )

Casey Family Programs Oklahoma Case File Review report.

Failure to Consult Decision out of British Columbia


In determining whether the duty to consult was fulfilled, courts must consider whether the Crown met its duty to act honourably and provide a meaningful process of consultation, not whether the Crown and the First Nation reached agreement. As McLachlin C.J.C. instructed in Haida Nation at para. 63, the focus is not on the outcome, but on the process of consultation and accommodation. Accordingly I must decide whether the consultation process that took place fulfilled the Crown’s duty to provide a meaningful mid-range consultation.


As much as the Minister’s office was entitled to review and inform itself from and to a degree rely upon the engagement record, the Haida Nation duty to consult ultimately rested with the Province. It is only the Crown in right of the Province who had the ability to provide sufficient remedies to achieve meaningful consultation and accommodation: Rio Tinto at paras. 59-60. As the British Columbia Court of Appeal made clear in Neskonlith Indian Band at para. 68, local governments lack the authority to engage in a nuanced and complex constitutional process.
In my view the Province failed to ensure that the parties to the consultation understood the differences between the two types of consultation processes required. This confusion led to frustration, particularly on the part of the Nations, as the parties with the responsibility and authority were not at the table until the matter reached the Minister’s office in December 2012. The Province was obliged to make the s. 35 consultation process “as transparent as possible” and clearly articulate what roles the municipality and the Province were playing in carrying out the consultation: Ke-Kin-Is-Uqs v. British Columbia (Minister of Forests),2008 BCSC 1505 (CanLII), 2008 BCSC 1505 at para. 147.
Once the Ministry received Whistler’s engagement record, I am of the view that the consultation process engaged in by the Province relied almost exclusively on Whistler’s engagement record. The Province made little attempt to engage in its own consultation:  it held no face to face meetings with representatives of the Nations; it made no attempt to involve any other Ministry with whom the Nations dealt in other ongoing negotiations; and it denied requests for further consultation because of time constraints imposed by the upcoming election.

Although the Province had no obligation to agree with or accept the Nation’s position, the position of the Province, from beginning to the end of the short consultation period remained intransigent.  While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions, advising the Nations the OCP had to be approved before the election writ dropped, thus foreclosing any further consultation.

Temporary Stay Lifted by Nuclear Regulatory Commission in In re Powertech USA

Order here.

At its heart, the dispute over a stay boils down to a disagreement over the NHPA consultation process. Intervenors argue that the process by which the Programmatic Agreement was created was inadequate, and therefore fails to fully protect the Tribe’s [Oglala Sioux] sensitive and significant historic and cultural resources. Powertech, and the NRC Staff disagree and believe the Programmatic Agreement memorialized a fair and adequate process that fully protects all potential cultural and historic resources at the Dewey-Burdock sites.

Documents in Penn West v. Ominayak, et al

The ex parte application for injunction here. Hearing on the application is this afternoon.

Affidavit of a general manager of Penn West, with supporting documentation (PDF, 100+ pages).

Thanks to and via @LandOccupations

Coverage of Elsipogtog via Twitter Feed

As with Idle No More coverage (and for the same reasons), we’re using twitter (@ILPCTurtleTalk) to retweet coverage and photos from Elsipogtog and other related protests. Our retweets are also automatically posted to our Facebook page.