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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 13-022

General Memorandum 13-022
Nuclear Regulatory Commission Seeks Comments on Draft Tribal Protocol Manual and Proposed Policy Statement on Consultation with Native American Tribes

The Nuclear Regulatory Commission (NRC), in the attached FEDERAL REGISTER notice (77 Fed. Reg. 62269) and press release, is seeking comments on a draft Tribal Protocol Manual. In addition to seeking comments on the draft Tribal Protocol Manual, the NRC is also seeking input for the development of a policy statement on consultation with Native American tribes. The deadline for filing comments on either the draft Tribal Protocol Manual or the proposed policy statement is April 1, 2013.

As explained in the FEDERAL REGISTER notice, the NRC has had interactions with a relatively small number of tribes in several different contexts, and the NRC has found that a "case-by-case" approach has been adequate for such interactions. In recent years, the NRC has had an increasing amount of contact with tribes. In light of this experience, NRC has decided to develop a formal policy statement on consultation with Native American tribes and to develop a guidance document for NRC staff.

The Proposed Policy Statement. The FEDERAL REGISTER notice sets out several questions on which the NRC seeks feedback to help it formulate a policy statement on consultation with Native American tribes:

• How can the NRC strengthen government-to-government relationships with Native American tribes?
• What practices have the NRC or other Federal agencies employed that have been effective in identifying tribal interests and resolving tribal concerns about proposed agency actions?
• Are there specific Tribal Policy Statements in other Federal agencies that could serve as a starting point for the NRC efforts?
• What unique tribal issues should NRC be aware of as a non-landholding regulatory agency that issues licenses under the Atomic Energy Act?

Comments on the proposed policy statement need not be limited to responses to these questions. Tribes that have had dealings with NRC may want to draw on their experiences in providing comments. As noted in the FEDERAL REGISTER notice, some of the different contexts in which NRC has had dealings with tribes include: inspections of existing nuclear power plants; renewal of the operating license for an existing nuclear power plant; proposals for new nuclear power plants; the proposed high-level nuclear waste repository at Yucca Mountain, Nevada; uranium milling operations in Arizona and New Mexico; and reclamation of a contaminated site in Oklahoma.

The draft Tribal Protocol Manual. As stated on its title page, the Tribal Protocol Manual "provides guidance to foster effective interaction between NRC staff and tribal governments and instructional background information to NRC staff on the historic relationship between the Federal government and Native Americans." The draft is a 20-page document, organized into three chapters: (1) Historical Perspective on U.S. and Tribal Relations; (2) Guidance on Tribal Protocols and Interactions; and (3) NRCs Tribal Contacts: Reference Tools.

While we have not analyzed the draft in detail, we did notice a number of points that warrant attention. For example, in the historical background section, which though quite brief is generally accurate, we took note of one misstatement: on page 5, the Indian Reorganization Act (IRA) of 1934 is said to have granted tribes certain rights of home rule. In fact, the IRA did not grant tribes such rights but, rather, recognized that tribes have self-government rights by virtue of their inherent sovereignty.

We also noticed that the discussion of the National Historic Preservation Act (NHPA) in chapter 2 (page 11) is somewhat misleading. This section accurately summarizes the requirement that each federal agency, in carrying out its responsibilities under NHPA section 106, "must consult with any Indian tribe that attaches religious and cultural significance to historic properties that may be affected by" a proposed undertaking. The heading of this section, however, is captioned "Protecting Tribal Lands," which could give rise to a misunderstanding – a reader might assume that the tribal right to be consulted only applies to tribal lands. This section also says that NRC meets its section 106 responsibilities "in conjunction with" its responsibilities under the National Environmental Policy Act (NEPA), but there is no discussion of how NRC integrates NHPA consultation into its NEPA process.

Please let us know if you would like more information, or assistance in preparing comments on either the proposed policy statement or the draft Tribal Protocol Manual.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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