Tribal Consultation: Toward Meaningful Collaboration with the Federal Government

Abstract

One of bedrock principles of federal Indian law is a centuries-old understanding that the tribes, as “domestic dependent nations,” have “government-to-government” relationship with the federal government, which has a trust obligation concerning the tribes, their sovereignty, and their cultural resources. Although this relationship was first judicially articulated in the 19th century, it was interpreted to require federal “consultation” with the tribes under a series of executive orders beginning in the 1970s and the National Historic Preservation Act. However, this government-to-government consultation has been largely disappointed the tribes, which have often complained that federal agencies have reduced it to procedural “box-checking,” with little or no evidence of substantive results. As a result, the tribes have called for “meaningful consultation” and resulting “collaborative management” going forward.

This paper discusses the origins of the modern consultation doctrine and considers several case studies which have and have not produced substantive results. We draw some lessons from the case studies that the Biden Administration, which has professed an interest in engaging in meaningful consultation, may draw upon. If it does, tribes may gain an important management role concerning off-reservation resources that are significant to their history and culture.

Keywords: Federal Indian Law, Indigenous Rights, Tribal Sacred Sites, National Historic Preservation Act, Tribal Consultation, Bears Ears National Monument, Secretarial Order on Tribal Rights and the Endangered Species Act, Chaco Canyon Oil and Gas Leasing

JEL Classification: K11, K32, Q15, Q22, Q23, Q24, Q25, Q28, Q38, Q48, R52