On Demand Audio

Effective Native American Tribal Consultation on Infrastructure and Other Projects

Produced on August 05, 2020

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$ 89 Oil, Gas, & Energy and American Indian In Stock
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Course Information

Time 1h 7m
Difficulty Intermediate
Topics covered in this course: Oil, Gas, & Energy American Indian

Course Description

“Tribal consultation” refers to the Federal government’s legal obligation to consult with Native American and Alaska Native tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of Federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in. The project need not be on tribal land for consultation to be mandatory. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other Federal laws, require the lead Federal department or agency on each project to consult with all affected Indian tribes, nations, pueblos, and rancherias on a government-to-government basis. This is true whether the project is on public or private land. The rule of thumb is that if a project needs Federal permission to proceed, the Federal agency considering it must identify the Indian tribes in the project area and consult with them in a meaningful fashion before making any final decisions. Failure to do so may result in the tribe suing the Federal agency in U.S. District Court.  

Energy and mining companies, utilities, highway authorities, telecommunications providers, and other project proponents and their supporters are frequently caught off-guard by the tribal consultation requirement, particularly in parts of the United States located far away from the nearest Indian reservation. Of the 573 Native American and Alaska Native tribes officially recognized by the Federal government, about 325 retain a land base of some kind, often in Federal trust status, meaning the land cannot be sold or transferred to others without Congressional approval. Yet for the project proponent, locating these Indian reservation boundaries is only a first step. The proponent must also be aware of each tribe’s original homelands – tribes’ “aboriginal territory.” Both NEPA and NHPA respect that tribal governments, which have existed since time immemorial and predate the founding of the United States, may retain ongoing cultural and spiritual connections to their original homelands, which in turn may be distant from their current reservation lands. The Federal agency charged with reviewing a given project faces the challenge of determining which tribes may be affected by the project, and providing an opportunity for those tribes to engage in meaningful consultation with the federal government when the project affects them. 

This presentation, presented by experienced practitioner Troy Eid, will address the fundamentals of effective Native American Tribal Consultation on infrastructure and other projects.


Learning Objectives:

  1. Define “meaningful” Native American and Alaska Native tribal consultation under Federal law
  2. Determine when lack of meaningful consultation enables tribes to sue federal agencies in order to stop or delay projects

  3. Identify what steps project proponents can take to support the tribal consultation process and reduce risk

Credit Information

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Faculty

Troy Eid

Greenberg Traurig LLP

Troy A. Eid is a nationally known legal expert on environmental enforcement, investigations and compliance, energy and natural resource development, and Federal Indian law and Native American and Alaska Native tribal law. A former United States Attorney who has served both Republican and Democratic Presidential administrations, and a past state cabinet officer for the State of Colorado, Troy is a trusted public figure in the Rocky Mountain West and Washington, DC, and a familiar face in many federal, state and tribal courtrooms across the country.

Troy, who first joined the firm in 2003, co-founded and co-chairs Greenberg Traurig’s American Indian Law Practice Group, one of the largest and highest-rated legal teams in the United States. A principal shareholder with Greenberg Traurig's Denver office, Troy practices at the trial and appellate level. He has successfully defended clients in some of the largest and highest-profile environmental enforcement actions ever filed by U.S. Department of Justice under the Clean Water Act and other federal laws, as well as in grand jury proceedings. Troy is also frequently sought as a mediator and arbitrator, especially in cases involving Indian tribes and tribal enterprises.

An experienced legal project manager, Troy has coordinated various inter-disciplinary legal and consulting teams in numerous large-scale energy infrastructure projects, including natural gas pipelines, transmission lines, highways and railroads. He specializes in civil and criminal investigations involving petroleum-related leaks and spills, uranium contamination, hazardous waste pollution, asbestos, and other environmental and workplace safety matters, as well as health care and hospital-related regulatory, permitting and compliance projects. Troy is also a recognized authority on Native American cultural resource protection and related government-to-government consultation between tribes and the federal government under the National Historic Preservation Act, National Environmental Policy Act, and other laws.

Troy is well-respected on both sides of the aisle for his professional knowledge and expertise, especially as it relates to energy, natural resource, criminal justice, and other legal and public policy matters concerning the American West.

He served as Colorado’s United States Attorney from 2006-09, appointed by President George W. Bush. From 2010-14, Troy was elected to chair the Indian Law and Order Commission (ILOC), an independent national advisory board created by the Tribal Law and Order Act to advise President Obama and Congress on public safety improvements for all 566 federally recognized Native American and Alaska Native tribes and nations. The ILOC’s landmark 2013 report, A Roadmap for Making Native America Safer, proposes the most sweeping criminal justice reforms in Federal Indian law and policy since the New Deal. Endorsed by the American Bar Association, the ILOC’s Roadmap helped lead to the enactment of the Violence Against Women Act Amendments recognizing tribes’ criminal jurisdiction to prosecute non-Indian perpetrators in domestic violence cases.

A recipient of the Navajo Nation Bar Association’s Member of the Year Award, Troy grew up in Colorado and graduated from Stanford University and the University of Chicago Law School. He clerked for Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. He has been recognized for distinguished public service by the Federal Bureau of Investigation, the U.S. Secret Service, the Drug Enforcement Administration, and other federal and state law enforcement agencies. He was also recognized by Law Week Colorado as Colorado Lawyer of Year for representing the seller of the HealthOne hospital system in Colorado, the largest hospital-related transaction ever in the Rocky Mountain West. 

A regular contributor to the national edition of Native American Law360 and other Law360 publications, Troy teaches energy, natural resources, environmental and Federal Indian law as an Adjunct Professor of Law at the University of Denver-Sturm College of Law. He currently serves as an At-Large Member on the Tribal Issues Advisory Board of the United States Sentencing Commission, an independent agency within the Federal judiciary that is assessing the impact of the Federal Sentencing Guidelines in criminal convictions involving Native Americans and Alaska Natives.