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

Gabriel S. Galanda
12/15/10

The final part of this series provides a model for how tribes can and should wield the federal Indian consultation right to defend tribal sovereignty, and discusses the very real negative effect of any federal failure to consult with tribal governments.

Preemptive Consultation

In Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395 (D.S.D. 1995), the U.S. District Court explained that “[m]eaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views.” This should play out in (1) a meeting with tribal officials where the federal agency notifies the tribe, in writing and otherwise, of its proposed action and hears tribal opinion, and (2) follow-up dialogue as necessary, (3) culminating in a motion of support or rejection from the tribe within a reasonable period of time.

To be clear, a boilerplate letter to several tribes, informal communication with a tribal member or staffer, or a single meeting with a tribe does not constitute meaningful tribal consultation. Crucially, it is the United States’ obligation to do whatever is needed to cause the consultation to occur and conclude—not the affected tribe’s.

The point of this series is that consultation can be used as a sword—a preemptive strike that forces U.S. agencies to consult before taking action in Indian country—as well as a shield to guard from federal and private attacks on Indian sovereignty. As it stands, several federal agencies freely enforce their prerogative over tribes, under the guise of so-called federal laws of general applicability and increasingly with federal court approval. Still, at each stage of federal encroachment or enforcement, federal law requires consultation with tribal officials.

IRS protocols, for example, require agents to consult with tribal officials in any compliance review or audit. Likewise, National Indian Gaming Commission policy requires tribal consultation when the agency conducts investigations or takes enforcement actions regarding Indian gaming. The Environmental Protection Agency’s consultation mandates are numerous; sprinkled throughout the CFRs and the agency’s own internal regulations. The departments of Treasury and Labor are developing consultation standards that will govern the likes of the Financial Crimes Enforcement Network (FinCEN), Occupational Safety and Health Administration and the National Labor Relations Board’s behavior in Indian country.

In practice, preemptive consultation means that a tribe should not turn over one shred of paper to the IRS or NIGC in response to an information or examination request, or allow EPA or OSHA agents any access to tribal facilities or enterprises, until the federal agency has consulted with the tribe. To be clear, consultation may not achieve the tribe’s desired result, i.e., the feds abandoning their proposal or going away. But the federal Indian consultation right nonetheless provides tribes important procedural safeguard.

The Costs of Failing to Consult

There is a very practical incentive for the general public to support ongoing federal-tribal consultation. It is not only the law; it is good business. The failure of federal agencies to consult with tribes can have devastating economic impacts, even to the non-tribal sector. Tribal concerns about or opposition to a federally licensed or stimulus-funded project can cost investors time and money, and may even stop a project dead in its tracks.

A 2005 study found that meaningful government-to-government consultation would save the private sector millions of dollars per year. As demonstrated by a private contractor’s recent loss of a $30 million contract because the U.S. failed to consult with the Yakama Nation before attempting to import garbage into tribal ceded lands, the cost of non-compliance can be significant. American taxpayers—Indians included—ultimately bear the financial brunt of any federal consultation lapses.

To reduce these risks, it is particularly important for federal officials and project managers to be sure that agencies consult with tribes early and frequently when a federally-funded project is located in any area where a tribe has a cultural connection or reserved treaty rights. By the same token, in order to minimize the outlay of U.S. tax dollars for litigation expense and fee awards to prevailing tribal parties, the United States must consult meaningfully with the tribe before encroaching into tribal affairs.

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The federal Indian consultation right has a real chance to allow tribes much more protection and leverage in the game of federalism—it is potentially a game changer.

The federal government, often caught up in its own deadlines and priorities, habitually neglects its duty to consult with affected tribes. The net effect of this neglect is negative for both sovereigns; but whereas the cost is pecuniary for the U.S. and its taxpaying electorate, tribes pay in diminished sovereignty and invasion of tribal territory. Any such tribal harm is virtually incalculable and most certainly irreparable. To prevent such harm, it is time that tribes wield the sword and take a preemptive stance on consultation.

I will end with an example: If you are a tribal leader, and a federal agency begins appraising a tribal resource in order to commence a project or enforce a federal statute, the agency may appear to have the power to do so, authorized either by preemptive federal law, precedent or both. At this point, you have two options: (1) sit back and await the inevitable attack on your tribal sovereignty—lamenting the injustice of federal preemption doctrine and awful court decisions; or (2) use consultation as a preemptive strike, demanding that the federal agency stop, look and listen to you. Choose option two.

If asked by federal officials under what authority your tribe demands consultation, point to the agency’s own regulations and policies. If the agency does not yet have them, or if federal officials ask you for more proof, show them federal law; direct them to your treaty and/or Indian trust doctrine. If they are still not convinced they must consult, invoke international—nation-to-nation—legal norms. If the agency still refuses to consult, draw your sword. Evaluate notions of arbitrary and capricious agency action, preliminary injunction and writ of mandamus, and consider filing suit against the U.S. in its own court. The Oglala, Lower Brule Sioux, Klamath, Peoria and Yakama Nations have forged your way.

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

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