GA
Subject: Guidance for Addressing Interactions with Indian Tribes in Funding
Opportunity Announcements/Other Transaction Solicitations and
Financial Assistance and Other Transaction Agreements
Polices and Statutes:
DOE American Indian and Alaska Natives Tribal Government Policy (2006)
Outlines principles for government-to-government relationships with
American Indian and Alaska Native Tribal governments.
DOE O 144.1, Department of Energy American Indian Tribal Government
Interactions And Policy
Communicates Departmental, programmatic, and field
responsibilities for interacting with American Indian Governments,
including Alaska Native entities.
Executive Order 13175 of November 6, 2000, Consultation and
Coordination with Indian Tribal Governments.
Establishes regular and meaningful consultation and collaboration
with Tribal officials in the development of Federal policies that have
Tribal implications.
Executive Order 14112 of December 6, 2023, Reforming Federal Funding
and Support for Tribal Nations To Better Embrace Our Trust
Responsibilities and Promote the Next Era of Tribal Self-Determination
Solidifies commitment to this next era of Tribal self-determination
policies that are rooted in prioritizing partnerships with Tribal
leaders, respect for Tribal sovereignty, trust in Tribal priorities, and
dignity for Tribal Nations.
Memorandum on Tribal Consultation and Strengthening Nation-to-Nation
Relationships | The White House
Re-emphasizes commitment to E.O 13175 and states administrative
policies on government-to-government relationships.
Department of Energy No.: FAL-2024-03/OTL 2024-01
Date: April 5, 2024
FINANCIAL ASSISTANCE/
OTHER TRANSACTION LETTER
This Financial Assistance/Other Transaction Letter is issued under the authority of the Senior Procurement Executives of DOE and NNSA.
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April 5, 2024
POTUS Tribal Consultation Memo - DOE Response and Action Plan -
FINAL.pdf (energy.gov)
Outlines DOE actions related to Tribal consultation and feedback
from Indian Tribes.
Memorandum on Uniform Standards for Tribal Consultation | The White
House
Requires agencies to submit detailed plans of action to implement policies
related to E.O. 13175.
Alaska Native Claims Settlement Act (85 Stat. 688) [ 43 U.S.C. § 1601, et seq.]
Resources:
Tribal Treaty Rights Consultation Best Practices Flow Chart (bia.gov)
Quick guide on steps to follow to determine if Tribes could be affected
and how to carry out consultation if needed.
Best Practices for Identifying and Protecting Tribal Treaty Rights, Reserved
Rights, and Other Similar Rights in Federal Regulatory Actions and Federal
Decision-Making (bia.gov)
Tribal Treaties Database (okstate.edu)
Search treaties by specific Tribes to evaluate if Tribal treaty rights are
affected.
Bureau of Indian Affairs, U.S. Domestic Sovereign Nations: Land Areas of
Federally-Recognized Tribes Indian Lands (doi.gov)
GIS tool useful for identifying Indian Lands and Reservations which may
be impacted. See the following for the parent website: BOGS | Web Maps
(geoplatform.gov)
DOI Tribal Leader Directory – List of Tribal Leaders, addresses and contact
information.
A regularly updated database useful for identifying who to contact for
Tribal consultation and engagement.
Office of Indian Energy Past Funding Opportunities | Department of Energy
The office’s FOAs may contain language useful to other offices.
Best Practices Guide for Federal Agencies Regarding Tribal and Native Hawaiian
Sacred Sites
Interagency guidance with best practices including safeguarding
information on sacred sites from FOIA.
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April 5, 2024
When is this Financial Assistance Letter (FAL)/Other Transaction Letter (OTL)
effective?
The guidance provided in this FAL/OTL is effective on the date issued.
When does this FAL/OTL expire?
This FAL/OTL remains in effect until canceled or superseded.
Who is the point of contact?
For Department of Energy (DOE), contact the Contract and Financial Assistance Policy
Division, Office of Policy in the Office of Acquisition Management at
For National Nuclear Security Administration (NNSA) questions, contact NNSA Office of
Policy and Oversight Division, Policy & Oversight Branch (NA-PAS-111), at (505) 845-
5639 or [email protected].
DOE as used in this FAL/OTL includes NNSA.
Who is the intended audience?
DOE Grant Officers (GOs) and Agreement Officers (AOs).
What is the purpose?
The purpose of this FAL/OTL is to provide guidance to GOs and AOs during the planning
and issuance of Funding Opportunity Announcements (FOA) and the award of financial
assistance and other transaction (OT) agreements to evaluate if projects may potentially
impact Indian Tribes. Further, this FAL/OTL provides guidance on consultation and
engagement with Indian Tribes if projects submitted to DOE are determined to potentially
impact Indian Tribes. The requirements within this FAL/OTL also apply to applications
submitted by Indian Tribes, both when an Indian Tribe’s application impacts itself or when
an Indian Tribe potentially impacts another Indian Tribe. This FAL/OTL does not apply to
situations where state recognized Tribes are potentially impacted or are applicants.
What types of actions are affected by this FAL/OTL?
This FAL/OTL applies to all financial assistance and OT agreements, where the project
may potentially impact Indian Tribes as defined in 25 U.S.C. § 5304 (e), the Indian Self
Determination and Education Assistance Act (ISDEAA):
“Indian tribe” or “Indian Tribe” means any Indian tribe, band, nation, or other
organized group or community, including an Alaska Native village or regional or
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village corporation as defined in or established pursuant to the Alaska Native
Claims Settlement Act (85 Stat. 688)[43 U.S.C. 1601 et seq.], which is recognized
as eligible for the special programs and services provided by the United States to
Indians because of their status as Indians.
For purposes of this FAL/OTL, the term “Federally recognized Indian Tribe” means those
tribes recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians, including Alaska Native villages.
For purposes of this FAL/OTL, the term “Alaska Native Corporation” means Alaska
regional, or village corporations as defined in or established pursuant to the Alaska Native
Claims Settlement Act.
The GO/AO should consult with legal counsel on any questions regarding the definition or
applicability of the FAL/OTL to an Indian Tribe.
When the Indian Tribe is the applicant or recipient/awardee, the GO/AO should use this
guidance in conjunction with DOE O 144.1 Department of Energy American Indian Tribal
Government Interactions And Policy for assistance in any required consultation(s).
What is the background?
Federally recognized Indian Tribes, including federally recognized Tribes in Alaska, are
sovereign governments recognized by the Constitution of the United States, treaties,
statutes, Executive Orders, and court decisions. To this end, all executive departments and
agencies are expected to engage in regular, meaningful, and robust consultation with the
governments of Federally recognized Indian Tribes when undertaking Federal actions that
may have Tribal impacts. In addition to Federally recognized Indian Tribes, Alaska Native
Corporations (ANCs) play a significant role in managing land and minerals on behalf of
Alaska Native shareholders pursuant to the Alaska Native Claims Settlement Act. This
FAL/OTL applies to both Federally recognized Indian Tribes and ANCs (as defined in 25
U.S.C. 5304 (e), and as appropriate herein referred to collectively as “Indian Tribes”). If
there is any conflict between the governments of Federally recognized Indian Tribes and
ANCs during financial assistance agreements, then special consideration should be given to
the input of Federally recognized Indian Tribes and their roles as Tribal governments.
During the planning process, DOE must evaluate if projects proposed through a FOA/OT
solicitation may have the potential to impact Indian Tribes, as described below. If a
FOA/OT solicitation has potential impacts to Indian Tribes, then DOE must include
appropriate language in the FOA/OT solicitation to address this matter. Indian Tribes are
typically impacted through their resources and reserved rights, which often include impacts
to Indian reservations, as well as extending beyond reservation boundaries pursuant to
treaties, statutes, case law and other applicable requirements (herein collectively and
alternately referred to as “impact(s) on” or “impacts to” Indian Tribes”). Tribal resources
and reserved rights include, but are not limited to:
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• Tribal land(s), including Indian Reservations and other Indian Land
• historic homelands from which Tribes were removed, including:
o cultural sites
o sacred sites
o burial sites
• water rights
• mineral and other subsurface rights
• fishing rights
• hunting rights
Further, DOE O 144.1: Department of Energy American Indian Tribal Government
Interactions And Policy (Order) provides requirements applicable to DOE employees on
consultations and interactions with American Indian and Alaska Native Tribal
governments. While the Order is not directly applicable to recipients/awardees of financial
assistance or other transaction agreements, GOs, AOs, and other DOE employees involved
in the award and administration of these agreements must comply with applicable
requirements in the Order and with the guidance in this FAL/OTL. Further, GOs and AOs
must operate consistent with the DOE American Indian and Alaska Natives Tribal
Government Policy (2006 or the latest version of the Policy). Formal government-to-
government consultation with Indian Tribes is a DOE responsibility; applicant and
recipient interactions with Indian Tribes do not constitute or substitute for such
consultation.
This FAL/OTL is intended to compliment the consultation requirements of the National
Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) by ensuring
applicants and recipients are proactively identifying and addressing Tribal impacts. If there are
any conflicts or duplicative efforts between this FAL/OTL and NEPA, or this FAL/OTL and
NHPA, then NEPA and NHPA shall take precedence.
What guidance is included in this FAL/OTL?
The following guidance is provided to GOs and AOs when planning, soliciting, and awarding
agreements.
Confidentiality of information
Special attention should be given to the timing of information shared with the potentially
affected Indian Tribe(s). Any information provided to the potentially affected Indian Tribe(s),
shall be clearly marked as “pre-decisional” or “selection information” or other appropriate
designation. A nondisclosure agreement may be necessary from the Indian Tribe(s) prior to
sharing any application information.
Similarly, DOE must provide special attention to the information it obtains from Indian Tribes.
DOE may consider but is not required to sign a nondisclosure agreement if the Indian Tribe(s)
requires such an agreement prior to sharing any information the Indian Tribe(s) considers
business sensitive, trade secrets, proprietary, or otherwise confidential information. To the extent
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practicable, DOE should ensure that notes, recordings, and transcriptions do not contain sensitive
Indigenous Knowledge, as identified by Tribes, unless Tribes have consented to such
documentation. Information documented by DOE may be subject to the Freedom of Information
Act (FOIA), therefore DOE and Indian Tribes should expect that records created during or
otherwise stemming from interactions may be required to be released if requested under the
FOIA.
What to consider in planning
GOs/AOs should discuss with program officials, including any relevant Tribal liaison (see DOE
O 144.1), and consider what, if any, Tribal resources or reserved rights (see examples above)
could potentially be impacted. If projects supported under a FOA/OT solicitation are considered
to be highly unlikely to impact Indian Tribes (e.g., have no substantial direct effect on Indian
Tribes or otherwise do not impact an Indian Tribe’s resources or reserved rights) then no
additional language should be needed in the FOA/OT solicitation (GO/AOs should still be
cognizant of proposed projects which could impact Indian Tribes during evaluation, selection,
and award in all FOAs/OT solicitations).
GOs and AOs are encouraged to consult with the Office of Congressional and Intergovernmental
Affairs (CI) Tribal Liaison ([email protected]) and the Office of Indian Energy
or to request assistance to determine the appropriate action to be taken under this FAL/OTL (e.g.,
a project such as a national satellite image survey of solar installations that could have negligible
impacts to numerous Indian Tribes, thus rendering consultation with all impacted Indian Tribes a
significant burden.)
What to put in the FOA or OT solicitation
GOs/AOs must include requirements for applicants on their responsibilities, both pre- and post-
award, regarding Tribal engagement, if there are potential impacts to Indian Tribes. These
requirements are in addition to any requirements set out in the Community Benefit Plan (CBP).
The GO/AO should review the technical application instructions and the CBP (if included) for
any necessary revisions. (example at end of FAL/OTL)
The FOA/OT solicitations must include:
• Guidance which helps the GOs/AOs to determine if the applicant’s application could
potentially impact Indian Tribes and therefore warrants DOE employees’ engagement
or Tribal consultation under DOE O 144.1. GOs/AOs are encouraged to tailor
questions to be relevant in the context of the FOA/OT solicitation and to the types of
eligible applicants. These questions are generally directed at entities other than Indian
Tribes as the recipient or awardee.
• A requirement for applicants to document any efforts the applicant has taken to
identify, and has or would take to identify, address, or mitigate any potential impacts
to Indian Tribe(s). It is recommended that the documentation not be required at the
time of application but should be available if DOE requests it.
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• Instructions for Concept Papers must require the applicant to provide initial
information on proposed project location, identify any potential impacts on Indian
Tribes, and describe how the applicant would engage with a potentially impacted
Indian Tribe(s).
• Requirements for applicants to document the awareness and support, if supporting
documentation is required, of each Indian Tribe which is potentially impacted by the
proposed project:
o For any project potentially impacting an Indian Tribe’s resources or
reserved rights, program offices must require documentation that an
authorized representative of the Indian Tribe has been made aware of the
application. The documentation must, at a minimum, demonstrate the
authorized representative(s) is aware of the nature of the project and how
it potentially impacts the Indian Tribe(s). The authorized representative
must be an elected official or designated leader according to the traditions,
constitution, or charter of the Indian Tribe, or someone with relevant
delegated authority within the Tribal government (e.g., Chief, Chairman,
Chairwoman, Governor, Nation Representative, President, Chief
Executive Officer, Chief Financial Officer, Speaker of the Council,
Speaker of the Congress) and hold their position at the time the application
is submitted. This requirement still applies when the impacted Indian
Tribe is the applicant.
o For any project intended to be sited on Tribal land, or intersecting with
Tribal subsurface rights, documentation of Tribal support is required at the
time of application. This requirement still applies when the impacted
Indian Tribe is the applicant.
o For any projects not intended to be sited on Tribal land(s), or intersecting
with Tribal subsurface rights, but that may have potential impacts to Tribal
resources or reserved rights, documentation of Tribal support is strongly
encouraged at the time of application or during negotiation of award, and
depending on the nature of the impact, may be required if selected for
negotiation of an agreement.
o Program offices may choose one or both of the following forms of
documentation of Tribal support, if supporting documentation is required,
from a duly authorized Tribal government official or body:
A letter of support, signed by an authorized representative on
behalf of the Indian Tribe. This option is recommended for short
FOA/OT solicitation application windows. The authorized
representative shall be an elected official or designated leader
according to the traditions, constitution, or charter of the Indian
Tribe, or someone with relevant delegated authority within the
Tribal government (e.g., Chief, Chairman, Chairwoman, Governor,
Nation Representative, President, Chief Executive Officer, Chief
Financial Officer, Speaker of the Council, Speaker of the
Congress, Tribal administrator) and shall hold their position at the
time the application is submitted or open for negotiation. A Tribal
Council Resolution, Board resolution (including the Board of
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Directors of an ANC) or similar documentation passed by the
legislative body of the Tribal government or Board of Directors of
an ANC. This option is recommended when significant cost share
is committed by an Indian Tribe, or when it is beneficial to
demonstrate significant community support.
o All documents should expressly support the proposed projects. GOs/AOs
may use judgement to resolve issues of conflicting support between Indian
Tribes or when Tribal support is contingent on certain elements of the
application.
o Applicants can find contact information for Tribal leaders in the BIA
Tribal Leaders Directory (https://www.bia.gov/service/tribal-leaders-
directory/federally-recognized-tribes).
• A notice that an application that may potentially impact Indian Tribe(s) may be
shared with the potentially impacted Indian Tribe(s), and the applicants may
include a Notice of Restriction on Disclosure and Use of Data identifying any
business sensitive, trade secrets, proprietary, or otherwise confidential
information. Such information shall be used or disclosed only for evaluation of
the application or to determine whether the proposed project impacts an Indian
Tribe(s). Further, the notice must state that when it is determined an Indian
Tribe(s) would likely be impacted, then a workplan must be submitted by the
applicant outlining how the applicant or awardee, if an agreement is made, will
conduct Tribal engagement.
• Information on how the information provided by the applicants will be
evaluated and scored.
Noncompetitive actions should also consider the above items.
What to consider during evaluation and selection
The Evaluation and Selection Plan must describe how the submitted information will be
evaluated and scored. This includes initial review, merit review and other reviews included for
that FOA/OT solicitation. The GO/AO, with the assistance of program officials, will carefully
review the application initially to:
• determine if Indian Tribe(s) are potentially impacted and if the application
warrants Tribal support documentation,
• confirm that the application is compliant with the required information identified
in the FOA/OT solicitation document,
• if the required information is not submitted, the GO/AO will consult with legal
counsel for next steps. The applicant may be required to provide clarifying
information before or after selection.
Note that many proposed projects may impact multiple Indian Tribes and the GO/AO should
take care to determine that documentation has been gathered from all potentially impacted Indian
Tribes.
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If the merit review criteria include evaluation of the potential impacts on Indian Tribes, the
GO/AO, the program official and the selection official must determine how that information will
be evaluated. Subject matter experts may be used as peer reviewers and/or the merit reviewers
may be briefed on how to evaluate potential Tribal impacts.
Selection notices
CI and IE must be notified ([email protected], [email protected])
in advance of issuing any selection notices where the selected applications, if funded,
would potentially impact one or more Indian Tribes. The GO/AO must coordinate with CI
and IE, to determine the appropriate actions needed, if any, prior to any public
announcement or applicant notification. Notification to the potentially impacted Indian
Tribe(s) may be required in addition to the standard notifications to Congress prior to any
public announcement or applicant notifications.
What to consider during negotiation of a selected application or a noncompetitive
agreement
For any application that may impact an Indian Tribe(s), GOs/AOs will work with CI and IE
to ensure that the applicant has undertaken all required actions and to determine if any
DOE actions are needed. DOE must engage or consult with potentially impacted Indian
Tribe(s) in accordance with DOE O 144.1 (or latest version of Order), unless the
potentially impacted Indian Tribe is the applicant. If an Indian Tribe requests engagement
or consultation, DOE will, to the maximum extent practical, accommodate the request in a
timely matter.
Resource to conduct preliminary analysis can be found here;
https://www.bia.gov/sites/default/files/dup/inline-files/best_practices_guide.pdf.
What to include in the agreement
The agreement should include a special term or condition that defines the recipient/awardees
responsibility to engage with any potentially impacted Indian Tribe(s) regarding their project.
• Sample agreement term/article
If any activities anticipated to take place under this agreement could potentially impact
the resources or reserved rights of Indian Tribe(s), as defined in 25 U.S.C. § 5304 (e),
then the recipient/awardee agrees to develop and maintain active and open
communications with the potentially impacted Indian Tribe(s), during the period of
performance of the agreement, and, if necessary, after the end of the agreement. Approval
by DOE must be obtained before any activities take place that could impact Tribal
resources or reserved rights, including but not limited to lands, cultural sites, sacred sites,
water rights, mineral rights, fishing rights, and hunting rights. The recipient/awardee
must coordinate with DOE on all Tribal interactions. DOE will determine if formal
government-to-government consultation is needed, and DOE will conduct that
consultation accordingly.
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Definitions
• Tribal lands is as defined in 25 U.S.C. §§ 3501(2), (3), (4)(A) and (13).
• Indian Tribe is as defined in 25 U.S.C. § 5304 (e)).
Example Funding Opportunity Announcement/OT Solicitation Language
Impacted Indian Tribes Documentation (if applicable)
This section requires applicants to ascertain potential impacts to Indian Tribes
1
, including
Alaska Native village or regional or village corporations, other than the applicant. For
any application that potentially impacts Indian Tribes, including when the potentially
impacted Indian Tribe is the applicant, this section specifies the documentation required
at the time of application, during negotiation and prior to award.
For any project that potentially impacts Indian Tribes, applicants are required to submit
documentation demonstrating that an authorized representative
2
of each potentially
impacted Indian Tribe is, at a minimum, aware of the nature of the application and its
potential impacts to the relevant Indian Tribes. The notified authorized representative
must be holding their position while the award is open for applications, and
documentation must demonstrate affirmative awareness of the application (e.g. a delivery
record from certified mail, a reply by the authorized representative).
For any project intended to be sited on Tribal land(s)
3
[or intersecting with Tribal
subsurface rights], applicants are required to submit documentation demonstrating
support from the relevant Indian Tribes at the time of application. Documentation of
support submitted at the time of application will be considered to also demonstrate
awareness of an Indian Tribe (specified above). Documentation may include either:
• A letter of support from Tribal leadership. The letter must be signed by an
authorized representative
2
of the Indian Tribe. The signer(s) must be holding their
position while the award is open for applications or negotiations.
• A Tribal Council Resolution, Board resolution (including the Board of Directors
of an Alaska Native Corporation (ANC)), or similar act passed by the legislative
body of the Tribal government or Board of Directors of an ANC, expressing
support for the project.
1
Indian Tribe is as defined in 25 U.S.C. § 5304 (e)).
2
An authorized representative must be an elected official or designated leader according to the
traditions, constitution, or charter of the Indian Tribe, or someone with relevant delegated
authority within the Tribal government. Examples include: Chief, Chairman, Chairwoman,
Governor, Nation Representative, President, Chief Executive Officer, Chief Financial Officer,
Speaker of the Council, Speaker of the Congress, Tribal administrator.
3
Tribal lands is as defined in 25 U.S.C. §§ 3501(2), (3), (4)(A) and (13).
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Applicants are encouraged to reference or include any applicable community benefits
agreements in the Tribal support documentation, and to integrate any Tribal support
documentation in the community benefits plan as appropriate, see
https://www.energy.gov/infrastructure/about-community-benefits-plans and
https://www.energy.gov/management/financial-assistance-letter-2024-02-use-
community-benefits-plan-cbp-financial-assistance. For projects not intended to be sited
on Tribal land(s) [or intersecting with Tribal subsurface rights], but that may have other
potential impacts on Tribal resources or reserved rights, letters of support or resolutions
of support are strongly encouraged and, depending on the nature of the impact, may be
required if selected for negotiation of an agreement. Applicants are encouraged to reach
out to Indian Tribes as early as possible in the application process to give Indian Tribes
ample time to evaluate and respond.
The following resources may be useful to help determine if a project may impact an
Indian Tribe(s) resources or reserved rights and the appropriate contacts. These resources
are not exhaustive, and many Indian Tribes have resources or reserved rights which
extend beyond their Tribal reservation or land, or are covered within treaties, statutes, or
case-law. Applicants are encouraged to do additional research:
• Map of Indian Lands: https://bia-geospatial-
internal.geoplatform.gov/indianlands/
• Tribal Treaties Database: https://treaties.okstate.edu/
• Directory of federally recognized Tribes and Tribal leaders:
https://www.bia.gov/service/tribal-leaders-directory
• Best Practices for Identifying and Protecting Tribal Treaty Rights,
Reserved Rights, and other similar rights in federal regulatory actions:
https://www.bia.gov/sites/default/files/dup/inline-
files/best_practices_guide.pdf
To help determine if an Indian Tribe’s resources or reserved rights may be impacted by
the project, applicants must address the following elements. If the applicant is an Indian
Tribe, these elements should be addressed to ascertain impacts to Indian Tribes other than
the applicant. Applicants do not need to reveal specific details about sacred sites such as
specific location or specific ceremonies:
[Program offices are encouraged to customize this section based on the
nature of the FOA/OT solicitation, to determine if Indian Tribes are
impacted by the proposed project]
• [For research and development FOAs/OT solicitations that quantify
resource potential or model resource availability:] Identify any [specific
resources] which will be [quantified/modeled] on or near Tribal land,
traditional homelands, Tribal historic sites, sacred sites, or in areas where
an Indian Tribe maintains rights to [specific resources]. Identify which
Indian Tribe(s) may be impacted? Explain any instances of uncertainty or
confidentiality.”
• [For demonstration and deployment FOAs/OT solicitations, generally:]
Identify any elements of the project that will occur on or near Indian land,
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Tribal historic sites, or sacred sites and describe its potential impacts to
Indian Tribes. Identify the potentially impacted Indian Tribe(s).
• [For subsurface resource FOAs/OT solicitations, (e.g., carbon
sequestration, oil & gas, geothermal, critical minerals, groundwater):]
Identify any Tribal mineral rights, subsurface, or water rights at or near the
proposed project location. Explain any relevant studies already performed,
such as groundwater studies? Identify which Indian Tribe(s) might be
impacted. Explain any instances of uncertainty and any potential for
subsurface resource migration which has been considered.
• [For hydropower, offshore wind, or other water related projects:] Identify
any Tribal resources or reserved rights (e.g., water, fishing, or other treaty
rights) which could be impacted by the proposed project. Identify any
Tribal historic sites, sacred sites, or Tribally relevant vistas, which could
be impacted by the project. Identify the potentially impacted Indian
Tribe(s) and explain any sources of uncertainty or confidentiality.
• [For infrastructure (e.g., transmission and pipeline projects):] Identify any
Indian Land (as defined in 25 U.S.C. § 3501), traditional homelands, or
Tribal historic and sacred sites which will be crossed, or adjacent to the
proposed infrastructure. Identify which Indian Tribe(s) might be impacted
and explain any instances of uncertainty or confidentiality.
• Identify any [other] proposed actions which may impact an Indian Tribe(s)
resources or reserved rights. Tribal resources and reserved rights include,
and are not limited to, an Indian Reservation or Land (as defined in 25
U.S.C. § 3501) [or intersecting Tribal sub-surface rights], historic
homelands from which they were removed, cultural sites, sacred sites,
water rights, mineral and other subsurface rights, fishing rights, and
hunting rights. Identify the Tribe(s) potentially impacted and any sources
of uncertainty or confidentiality.
• Explain any actions taken by the applicant to mitigate or address any
potential impacts identified above, including engaging with the potentially
impacted Indian Tribe(s), in the application.
Applicants are required to document any efforts taken to identify any potential impacts to
Indian Tribes, Indian lands, Alaska Native regional and village land, traditional
homelands, Tribal rights, or Tribal historic sites, or sacred sites. This includes any
correspondence with Indian Tribes. These documents should be available on request to
DOE.
An applicant’s failure to submit documentation of an Indian Tribe’s awareness, or a letter
of support, when required as described above, may constitute grounds for determining an
application ineligible, non-responsive to the FOA/OT solicitation, not subject to further
review and/or not otherwise subject to selection or award.
Any application that may potentially impact Indian Tribe(s) may be shared with the
potentially impacted Indian Tribe(s). Applicants should include a Notice of Restriction on
Disclosure and Use of Data identifying any business sensitive, trade secrets, proprietary,
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or otherwise confidential information. Such information shall be used or disclosed only
for evaluation of the application or to determine whether the proposed project affects an
Indian Tribe(s).
If an applicant determines an Indian Tribe(s) will be impacted, the applicant must provide
information on the project location, potential impacts and how the applicant will engage
with Indian Tribe(s), during the period of performance of the agreement, and, if
necessary, after the end of the agreement. Approval by DOE must be obtained before any
activities take place that could impact Tribal resources or reserved rights, including but
not limited to lands, cultural sites, sacred sites, water rights, mineral rights, fishing rights,
and hunting rights. DOE will determine if formal government-to-government
consultation is needed, and DOE will conduct that consultation accordingly, in addition
to any engagement by applicant.
