A/HRC/36/46/Add.1 between the federal Government and Indian tribes. All federal agencies were directed to develop a detailed plan of action to implement the policies and directives of Executive Order 13175.10 14. Despite those efforts, the order resulted in a disjointed framework that suffers from loopholes, ambiguity, ad hoc application on an agency-by-agency basis and a general lack of accountability. It has failed to ensure effective consultations with tribal governments. The breakdown in communication and lack of timely and good faith involvement in the review of federal and non-federal projects has left tribal governments unable to participate in meaningful dialogue on projects affecting their lands, territories and resources. The shortcomings of the current framework still lead to violations of the rights of indigenous peoples, most notably the right to free, prior and informed consent. 15. The Indian Mineral Leasing Act (1938) provides that “unallotted lands within any Indian reservation or lands owned by any tribe, group or band of Indians under Federal jurisdiction ... may, with the approval of the Secretary of the Interior, be leased for mining purposes”.11 Although the Act recognizes tribal sovereignty, it retains the principles of the trust responsibility by requiring that tribal mineral leases be approved by the Secretary of the Interior based on a determination of whether or not the lease is appropriate or in the best interest of the tribe. 16. The Indian Mineral Development Act (1982) was intended to provide tribes with greater autonomy in the development of natural resources on Indian lands. The Act permits tribes to enter into joint venture agreements providing for the development or sale of mineral resources in which the tribe owns an interest. 12 Entry into such agreements is subject to approval by the Secretary of the Interior, based on a determination that the agreement is in the tribe’s best interest.13 17. The Energy Policy Act (2005) permits Indian tribes to submit to the Secretary of the Interior for approval a tribal energy resource agreement governing leases, business agreements and rights-of-way on tribal lands. 14 The Secretary has limited discretion in deciding whether to approve an agreement as it stipulates a time frame and conditions for approval,15 including the determination that the Indian tribe has demonstrated its capacity to regulate the development of energy resources on behalf of the tribe. While such agreements provide Indian tribes with an avenue for exercising sovereignty in energy development on their lands, the approval process still gives the federal Government the final determination of tribal capacity and for some erosion of the federal trust responsibility in Indian mineral resource development. 18. The Helping Expedite and Advance Responsible Tribal Home Ownership Act (2012) created the opportunity to turn over control of the leasing of tribal lands to tribal governments. The Act removes the requirement of lease approval by the Secretary of the Interior, requiring instead only initial approval of a participating tribe’s own leasing regulations. However, the Act applies to surface lands only and thus impacts the development of renewable energy projects only. 19. The history of allotment and reservation has not diminished indigenous peoples’ ties to their land. Indigenous peoples seek full decision-making power over the reduced lands and resources allocated to them so that they can use their history, knowledge and expertise to manage their resources to the benefit of their communities. Indigenous peoples assert that their rights in the United States are not limited by the boundaries of their current reservations, but extend to the reaches of their ancestral territories. 10 11 12 13 14 15 United States of America, Memorandum of 5 November 2009 on tribal consultation, Federal Register, vol. 74, No. 215 (9 November 2009). United States of America, 25 U.S.C., sect. 396 (a). Ibid., sect. 2102. Ibid. United States of America, 25 U.S.C., sect. 3504 (e). Ibid. 5