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EO 13084Executive OrderClinton · D Quiet signal

Executive Order 13084

Consultation and Coordination With Indian Tribal Governments

This executive order establishes a framework for federal agencies to consult with Indian tribal governments when developing regulations that significantly or uniquely affect tribal communities. It requires agencies to create effective consultation processes, limits unfunded mandates on tribal governments, streamlines waiver application processes with a 120-day decision requirement, and encourages the use of consensual mechanisms like negotiated rulemaking on issues involving tribal self-government, trust resources, and treaty rights.

Federal Register Open PDF 63 FR 27655

Impact dates

  1. Agency must render decision on complete waiver application

  2. EO takes effect

Key directives

  • Each agency shall have an effective process for tribal consultation on regulatory policies (Sec. 3a)
  • Agencies must not impose unfunded mandates with substantial direct compliance costs unless funds provided or OMB consultation documentation submitted (Sec. 3b)
  • Agencies shall review and streamline waiver application processes (Sec. 4a)
  • Agencies shall render waiver decisions within 120 days of complete application receipt (Sec. 4c)
  • Agencies should use consensual mechanisms including negotiated rulemaking on tribal self-government, trust resources, and treaty rights (Sec. 5)
  • Independent regulatory agencies encouraged to comply (Sec. 6)
  • EO effective 90 days after signing (Sec. 7d)

Who is ordered

Timeline

Immediate

  • EO takes effect 90 days after signing (August 12, 1998)
  • agencies must establish consultation processes

Near term (90d)

  • agencies to review and streamline waiver application processes
  • implementation of 120-day waiver decision requirement

Long term

  • ongoing government-to-government consultation obligations
  • potential shift toward negotiated rulemaking on tribal issues
  • institutionalized respect for tribal sovereignty in federal policymaking

Risks & tensions

  • Sec. 3b(2)(A) requires 'prior' consultation but timing relative to formal promulgation is vague—could allow post-hoc consultation
  • Unfunded mandate prohibition contains broad exceptions ('to the extent practicable and permitted by law') that may limit enforceability
  • Sec. 7(a) disclaimers render order unenforceable by tribes, creating reliance risk
  • Tension with Sec. 7(c): complements but does not supersede other federalism EO issued same day; potential jurisdictional overlap unclear
  • 120-day waiver clock starts on 'receipt' but 'complete application' standard gives agencies discretion to delay start
Executive Order 13084: Consultation and Coordination With Indian Tribal Governments · Executive Orders