Toward Genuine Tribal Consultation in the 21st Century

Abstract

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to protect tribal sovereignty, and to protect tribal resources. In Part II, we offer the first detailed explanation of how the trust responsibility developed the procedural duty to consult with Indian tribes. In this section we also discuss recent attempts by the Obama Administration to reform the federal government’s consultation duty. In Part III, we analyze the consultation policies that have been developed by federal agencies. In doing so, we identify four flaws that have prevented these policies from being truly effective: lack of enforceability, specificity, uniformity, and substantive constraints. Finally, in Part IV we present our proposal for reforming the consultation duty through legislation, and offer suggestions that can be implemented by the judicial and executive branches in the interim.

Keywords: right to consultation, tribal law, Indian law, Administrative Law, Natural Resources Law