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The Federal Indian Consultation Right: No Paper Tiger (Part One of a Three-Part Series)

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On Dec. 16, President Barack Obama will host the second White House Tribal Nations Conference. The president’s unprecedented tribal outreach extends from his formal commitment “to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications,” which was memorialized in his Memorandum for the Heads of Executive Departments and Agencies issued at last year’s conference.

Obama’s Memorandum represents one of his administration’s most important federal Indian policy accomplishments to date (pending the settlement of Cobell), and the Executive Branch is working hard to make tribal consultation a reality. The Obama administration is presently so focused on consultation with Indians that federal agencies are engaging in tribal consultations on tribal consultation.

Still, many federal agencies have missed the memo—literally—and are failing to meaningfully consult with concerned tribal governments. It should come as no surprise that federal agencies are dropping the ball on tribal consultation, considering that the United States has largely failed to honor the federal Indian consultation obligation since its inception in 1776, when the U.S. joined tribes in nationhood. To be sure, that obligation is expressed in certain treaties, like the 1854 Treaty with the Kaskaskia, Peoria, or embodied in age-old international law norms governing U.S. treaty obligations. While the federal obligation to consult with tribal nations is often attributed to a Clinton era Executive Order, and now to Obama’s Memorandum, it was made explicit by President Lyndon Johnson as far back as 1968.

This three-part series examines how tribal governments can use the federal Indian consultation as both a sword and shield in defense of Indian sovereignty, treaty rights, aboriginal territory and trust resources, especially when under attack by the federal government. While Obama’s federal Indian policy is commendable, Indian country cannot ignore that on his watch, agencies like the National Indian Gaming Commission, Internal Revenue Service, Financial Crimes Enforcement Network, Environmental Protection Agency, Occupational Safety and Health Administration and National Labor Relations Board still routinely encroach upon tribal self-governance and Indian lands with an arrogant attitude of federal supremacy.

As America’s first nations, Indian governments have an inherent responsibility to demand that all tribal properties—from sacred sites to casino buildings—are protected and respected, especially by our federal trustee. Because, as empirically determined by Stephen Cornell and Miriam Jorgensen, Indian economic success is intimately tied to tribal cultural empowerment and sovereignty; Indian country will never realize true economic sovereignty if Indian treaty and trust resources are not secure.

With the tribes’ “arrival” in this era, the U.S. now increasingly finds itself in the awkward posture of having to protect the expanding tribal trust corpus (both on- and off-reservation), and advance federalism throughout Indian country. It is in that awkward moment—some 40 years after the federal government adopted tribal consultation as policy—when federal agencies fail to comply with their duty to consult and collaborate with tribal officials in decisions that have tribal implications. This series will provide all the reasons and ways in which the feds must, in that moment, consult with tribes, or else.

Consultation as Federal Law

Numerous presidential orders, and federal statutes and agency regulations (codified and otherwise), mandate that the U.S. meaningfully consult with tribal governments prior to taking any federal action of tribal implication. Although an exhaustive list of federal statutes and regulations is beyond the scope of this series, those federal laws should be consulted when a particular agency encroaches upon tribal rights, as illustrated by the cases below and in Parts II and III.

From the beginning, the presidential mandate to consult has carried real teeth. Pursuant to a 1970 Congressional Message issued by President Nixon, the BIA drafted internal guidelines that set fourth an extensive consultation policy. Under this policy, BIA managers were urged to implement a framework for government-to-government relationships, which necessarily included the consultation right. In Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979), the tribe argued that the BIA violated BIA guidelines by failing to meaningfully consult before making personnel decisions affecting the tribe. The Circuit Court of Appeals agreed, finding that the BIA’s actions indeed deprived the tribe “of fair notice of the agency’s intentions” in violation of “those general principles which govern administrative decision making.”

In 1994, President Clinton issued a Presidential Document that mandated all federal agencies to “consult. ... with tribal governments prior to taking actions that affect federally recognized tribal governments.” In Lower Brule Sioux Tribe v. Deer, 911 F.Supp 395 (D.S.D. 1995), the tribe used a BIA Department Manual to force the BIA to “follow its own guidelines and policies, including affording the tribe meaningful prior consultation.” Specifically, the Lower Brule court found that when a federal agency violates “its obligations of trust and fiduciary duties” by failing to consult—as mandated by the agency’s own regulations—it acts in violation of federal law.

Now, President Obama’s Tribal Consultation Memorandum mandates that federal agencies promptly reimplement President Clinton’s consultation policy. Yet, a year after Obama’s proclamation, several federal agencies have yet to promulgate a written tribal consultation plan as required by that Memorandum; each agency’s plan was due by February 2010. Not surprisingly, agencies that increasingly commence inquests of tribal governments and enterprises per so-called federal laws of general applicability are the very entities that have failed to promulgate plans. NCAI and the White House should insist that those agencies immediately come into compliance with the President’s Memorandum.

Consultation as a Tribal Trust Obligation

All federal agencies have a common law trust obligation to consult with tribes, arising from the “Indian trust doctrine” fashioned by Chief Justice Marshall in the early 19th century. In short, the doctrine created a federal fiduciary duty as to tribal lands and resources whereby the U.S. must manage all tribal assets with exacting care.

Although rarely brought to the attention of the federal government, the fiduciary duty owed to a tribe includes consultation: Communication between an Indian beneficiary and its federal trustee. Although the trustee may be obliged to make the ultimate determination about what happens to trust assets, it is bound to, at a minimum, consider the wishes of the tribal beneficiary. The trust consultation duty is triggered when any federal decision would impact the value, use or enjoyment of Indian trust assets.

In Klamath Tribes v. U.S., No. 96-0381, 1996 WL 924509 (D. Or. 1996), for example, Klamath sought an injunction to prevent the federal Forest Service from implementing a forest plan and timber sale that would adversely impact trust resources. The U.S. District Court found that case law, presidential orders, and the agency’s own internal regulations created a “substantive duty” to consult with Indian tribes in any decision-making process that could create adverse effects on tribal resources.

Most recently, a federal district court in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, No. 10-3050, 2010 WL 343091 (E.D. Wash. 2010), found that because the USDA’s actions affected the Yakama Nation’s ceded lands—where tribal members exercise reserved hunting, gathering and fishing rights—there were “serious questions about whether [the USDA] adequately consulted with the [tribe] as required by. ... federal Indian trust common law.” The court issued a temporary restraining order, and in turn, an injunction, prohibiting the USDA from allowing a low-bid federal contractor to import solid waste from the Hawaiian Islands into Yakama territory.

As the Klamath and Yakama cases show, the federal Indian consultation can be used to prevent federal depredation of resources it is obligated to protect. In the next two parts of this series I will discuss how treaties—the Supreme Laws of the United States—international legal norms, and specific federal-tribal consultation protocols, provide tribal governments additional ways to employ consultation in defense against federal encroachment into Indian country.

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