Galanda: The federal Indian consultation right: No paper tiger

As discussed in part one of this three-part series, the Obama administration has mandated that all federal agencies implement a written government-to-government consultation policy with Indian tribes. Even though many federal agencies have been slow to honor that presidential mandate, the new era of consultation enforcement has shown that the doctrine has real bite.

Most recently, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was wielded to put a screeching halt to the importation of solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas. Part one also discussed how the various presidential proclamations and the Indian trust doctrine can be invoked to assert Indian sovereignty via federal/tribal consultation. In this second part, I explain how Indian treaties – the Supreme Law of the land – mandate tribal consultation.

Consultation as an Indian treaty obligation

In Peoria Tribe of Indians of Oklahoma v. United States, 390 U.S. 468 (1968), the tribe argued that the federal government violated its treaty rights in 1857 when it sold tribal land without meaningful consultation. What made this case unique was a clause in the treaty at issue that reads: “it is agreed that the president may, from time to time, and in consultation with the Indians, determine how much shall be invested in safe and profitable stocks.” The Supreme Court held that because the tribe was not consulted, the treaty was violated and the United States was liable for the difference in price that the tribe would have received for its property at public auction, plus interest.

Would it have made a difference in Peoria if the consultation requirement were not made explicit in the tribe’s treaty? Likely not. To begin with, it is clear from the discussion in part one of this series that meaningful consultation is required when any dispossession of treaty resources is involved. See Klamath Tribes v. U.S. Such is consistent with the preliminary injunction ruling in Yakama, wherein the federal court posed “serious questions about whether defendants adequately consulted with the Yakama Nation as required by its Treaty of 1855” – even though, unlike in Peoria, the Yakama Treaty does not include an explicit consultation right regarding the reserved subsistence rights at issue. Indeed, the treaty obligation to consult that is intrinsic in any bilateral agreement between nations.

Under the principles of international law, unless otherwise stated, all treaties establish mutually binding obligations between sovereigns. As applied by the United States in foreign international relations, each sovereign must act in good faith and in a manner that fulfills the original purpose of the treaty. Termination or a change in the scope of a treaty can occur only by consent of the signatories or pursuant to the terms of the treaty itself. If a party wishes to terminate or alter a treaty responsibility, that party must notify the other party and wait for a response. That notification should be in writing, signed by competent authority, and should indicate the measure proposed and the reasons for the desired change. In practice, the notice results in meetings and dialogue, and likely negotiations, between the sovereigns. Except in cases of special urgency, the notification should indicate a period for objections of not less than three months after its receipt.

Applying these principles in 2005, the Supreme Court of Canada held in Mikisew Cree First Nation v. Canada, 2005 S.C.C. 69, that while the Canadian Crown has the national legal right to “take up” a tribes ceded lands, the government is nevertheless under the obligation to inform itself on the impact its project will have on the exercise by the Mikisew of their treaty hunting, fishing and trapping rights and to communicate its findings to the Mikisew. The Crown must then attempt to deal with the Mikisew in good faith and with the intention of substantially addressing their concerns.

The duty to consult is triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the content of the Crown’s duty. Under Treaty 8, the First Nation treaty rights to hunt, fish and trap are therefore limited not only by geographical limits and specific forms of government regulation, but also by the Crown’s right to take up lands under the treaty, subject to its duty to consult and, if appropriate, to accommodate the concerns of the First Nation affected.

This ruling was confirmed as recent as October 2010, in the Supreme Court of Canada’s Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 S.C.C. 43, decision. In the United States, as well, this is precisely the type of meaningful tribal consultation required by numerous federal mandates and court decisions. This is no coincidence.

The practice of enforcing negotiated arrangements by reference to international law, first articulated by Chief Justice Marshall in the 1830s, is indeed the very foundation of federal Indian law. From this foundation arose a principle of Indian law that treaties with tribal governments be interpreted in a manner that the signatory tribe understood them. Despite being deemed domestic dependent nations, tribal governments have always had an expectation of an international – nation-to-nation – relationship with the U.S. To this day, treaties mean, quite simply, that the federal government must consult with tribal governments when federal agency action will affect a tribal resource.

To recap parts one and two, the federal Indian consultation right is found in presidential orders (from Johnson, Nixon, Clinton and Obama), Indian trust doctrine and treaties, international law, and various federal agency regulations and written protocols. That robust, and ever expanding, body of tribal consultation law should be aggressively arrayed against federal agencies that take or threaten action in Indian country.

In the third and final part of this series I will introduce the strategic notion of “preemptive consultation” and address the negative effect that the federal failure to consult can have on the private sector and American taxpayers.

Gabriel S. Galanda, an enrolled member of the Round Valley Indian Tribes, is a partner at Galanda Broadman, PLLC.