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Strengthening the Federal Indian Consultation Right

Gabriel S. Galanda
2/25/11

Two months ago, I published a series on the federal Indian consultation right, suggesting that the battle line in the ongoing tribal war against federalism should first be drawn in tribal council chambers—through federal-tribal consultation. There have since been a series of significant federal legal and political developments affirming the Indian consultation right. Through such developments, and as tribes recognize and exercise its power, the right of tribal consultation grows stronger by the day. To be clear, the burgeoning federal Indian right is not a privilege. Nor is it charity from the federal government. Nor is it “just words.” It is a right, rooted in the U.S. Constitution; intrinsic to treaties; required by trust doctrine; affirmed by federal common law, statutes, regulations and policies; and embodied in international legal norms.

Quechan Tribe v. Department of Interior

Last November, Quechan filed suit to void Interior’s approval of a 709-megawatt solar farm planned for over 6,000 acres of BLM-managed land in California. Quechan alleges that Interior “reached its approval decision prior to evaluating the eligibility of cultural resources identified in the Project area and without engaging in required consultation with tribes” as required by law. The District Court agreed, enjoining the project from proceeding on December 15, 2010.

The court found that the agency violated the general imperative that “federal agencies owe a fiduciary duty to all Indian tribes, and that at a minimum this means agencies must comply with general regulations and statutes.” Although the court found that the agency did consult with other tribes and did meet with the Quechan (primarily via “informational meetings where the Tribe’s opinions were not sought”), it found that manner of “consultation” inadequate: “In other words, that BLM did a lot of consulting in general doesn't show that its consultation with the Tribe was adequate under the regulations.” The court made clear: “The consultation requirement is not an empty formality; rather, it ‘must recognize the government-to-government relationship between the Federal Government and Indian tribes’ and is to be ‘conducted in a manner sensitive to the concerns and needs of the Indian tribe’.”

U.N. Declaration on the Rights of Indigenous Peoples

On December 16, President Obama took his efforts to “promote more consultation with the tribal nations” one step further by formally endorsing the Declaration. Adopted by the U.N. General Assembly in 2007, America’s endorsement of the Declaration is a “stated commitment to improve the conditions of Native Americans and to address broken promises.” One of these “promises” – already found in various federal laws – is made explicit in Articles 10, 11, 19, 28 and 32, requiring that “before adopting and implementing legislative or administrative measures that may affect [indigenous peoples]” and “prior to the approval of any project . . . affecting their land,” the federal government must obtain a tribe’s “free, prior and informed consent.”

A subsequent announcement by the U.S. State Department elaborated on its understanding of “free, prior, and informed consent” as “call[ing] for a process of meaningful consultation with tribal leaders” and “continu[ing] to consult and cooperate in good faith with federally recognized tribes and, as applicable, Native Hawaiians, on policies that directly and substantially affect them and to improve our cooperation and consultation processes.” The U.S.’s long-awaited endorsement of the Declaration stands as a bold international commitment to the indigenous right to exercise a high level of control over traditional lands and a specific procedural method to enforce that right. The Declaration should now be added to every American tribe’s consultation war chest.

Interior’s Draft Tribal Consultation Policy

On January 14, 2011, Interior released its draft policy as a part of Interior’s fulfillment of President Obama’s Executive Memorandum directing all federal departments and agencies to develop a “plan of actions” to implement tribal consultation per President Clinton’s Executive Order 13175. Yet the draft includes a “DISCLAIMER”: “Except to the extent already established by statute, this Policy is . . . not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the Department . . .”

How can the federal Indian consultation right exist under the highest laws of the land, yet not be enforceable at law? Although it is perhaps intended to insulate the Department and its agencies (like BLM) from liability for failing to meaningfully consult with affected tribes (like Quechan), the disclaimer would fall short in accomplishing that purpose. If a tribe can show that an Interior agency has not acted in conformity with its own consultation regulations, the agency will be enjoined for acting arbitrarily and capriciously per federal law—regardless of any disclaimer. Thankfully, it is “just words” for the Federal Government to disclaim tribal consultation-related liability.

ATNI Resolution No. 11-23

On February 3, 2011, the 57 tribal governments that comprise the Affiliated Tribes of Northwest Indians (ATNI) passed Resolution No. 11-23, proclaiming that:

     [M]any federal agencies, as well as state and local governments,
     continue to breach the federal Indian consultation right, as well
     as related Treaty, trust and other guaranteed tribal rights and
     federal responsibilities, by failing to meaningfully consult with
     tribal governments regarding matters of tribal implication.

ATNI resolved to, along with NCAI, request that the White House “cause any federal agency that has not yet complied with President Obama’s Memorandum by promulgating a detailed plan of action to implement Executive Order 13175, to do so immediately.”

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The federal Indian consultation right is alive and well. Even in the face of the types of U.S. tribal consultation transgressions that have borne out in the Quechan and Yakama litigation – or perhaps as a result of those federal transgressions – the right of Indian consultation is taking hold far and wide. The more Indian governments exercise the right, the more prevalent and stronger the right, and all that is tribal sovereignty, will become – especially vis-à-vis growing federalism.

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

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