Toward Genuine Tribal Consultation in the 21st Century

Abstract

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and tribal resources, as well as to provide certain services to tribal members. In that respect, the federal government's duty to consult with Indian tribes has a unique foundation that distinguishes it from decisions to consult with State governments or encourage public participation through the Administrative Procedures Act. This Article argues that the duty to consult with Indian tribes is properly viewed as a procedural component of the trust responsibility. It further argues that a more robust, judicially enforceable consultation requirement would be the most effective way to ensure that the federal government fulfills the substantive components of its trust responsibility to Indian tribes, while avoiding the difficult line-drawing that would be inherent in direct enforcement of those components. In this way, the consultation duty could become a powerful tool to ensure that federal agencies know and consider the impacts their actions will have on Indian people, before those actions are taken.

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