Tribal Consultation as Right and Obligation

PUBLISHED

Lauren van Schilfgaarde (@VanSchilfgaarde) is a UCLA Research Fellow at UCLA School of Law.

PUBLISHED

Lauren van Schilfgaarde (@VanSchilfgaarde) is a UCLA Research Fellow at UCLA School of Law.

This post is part of a symposium on Ezra Rosser’s A Nation Within: Navajo Land and Economic Development. Read the rest of the posts here.

***

While Tribes are recognized political entities within the United States—sometimes described as the “third sovereign”—they currently lack a formal, legally enforceable mechanism for politically engaging with the other two sovereigns—states and the federal government. There are a small handful of federal statutes that include an obligation to consult with Tribes, including in the National Historic Preservation Act of 1966 and the Native American Graves Protection and Repatriation Act of 1990, along with a handful of sister statutes at the state level. But these statutes are a far cry from reflecting the extensive amount of governmental decision-making that impacts Tribal interests.

These interests are extensive and diverse. They include extra-territorial property-like interests, such as in water and minerals, or cultural and religious interests in sacred spaces; an interest in avoiding the spill-over impacts of reservation-adjacent projects, such as toxic pollution emanating from mining projects, or a risk of damage to an upstream water supply; and participatory interests in ensuring that Tribal perspectives are integrated into regional management plans and legislative policy-making. They also include an interest in tribal self-determination—the authority of Tribes to self-govern, to maintain their own institutions, cultures, laws, customs, and traditions, as envisioned in the United Nations Declaration on the Rights of Indigenous Peoples. Given the extra-constitutional status of Tribes, and the consequent lack of a formal political role, the federal government fulfills its responsibility to Tribes, to the extent it does, through the mechanism of consultation.

In his prodigious A Nation Within, Ezra Rosser identifies numerous moments throughout Navajo Nation history that would have benefited or would benefit from more robust consultation. The Diné’s forced march to Bosque Redondo, the arbitrary sheep stock reduction, and harmful strip mining all point to a lack of tribal input and an overabundance of federal paternalism.

In the scheme of federal Indian law, however, consultation is a relatively new and underdeveloped framework, dating in the modern era to Executive Order 13175, signed by President Bill Clinton in 2000. Both President Obama and President Biden have similarly expressed support for tribal consultation. But despite these executive expressions of support, and the extensive “consultation on consultation” meetings they have spawned, federal and state consultation policies either do not exist, or vary widely in their specificity and extent to which they are actually implemented. The RESPECT Act, which seeks to codify Tribal consultation requirements for federal agencies, has seen little movement since it was introduced last May 2021. (Enacting this legislation would accord with international law, which both calls generally for nation-states to engage in consultation with its Indigenous Peoples, and states that Indigenous Peoples have a right to free, prior, and informed consent regarding matters that impact their interests, particularly in regards to their territories, their ancestral territories, and their cultural property.)

While a lack of consultation contributes to several challenges faced by the Diné, Rosser, to his credit, reminds us that not all Tribal problems can be blamed on external forces. Rather, the sovereign bears responsibility for exercising its sovereignty, which undoubtedly applies to consultation. As Tribes pursue the RESPECT Act and comparable advocacy at the state and local government level, Tribes must be prepared to reciprocate with their own expectations for what meaningful Tribal consultation should entail and with their own infrastructure for engaging in consultation. Tribes will be responsible for the same transparency and accountability expectations they demand of other sovereigns.

The premise of Tribal consultation implies a centralized Tribal unit with which to consult. It presumes a consulting entity that is capable of speaking with one voice on behalf of the government, and in many instances, on behalf of the Tribal people. The “Tribe” of course, is not always capable of this. Scholars frequently remind us that Tribes are not a monolith, and federal Indian policy treating Tribes as such has resulted in various problematic outcomes. But Rosser reminds us that the Tribe (singular) is also not a monolith.

In fact, much like the Navajo Nation, a centralized Tribal government is more often a product of colonization than a reflection of traditional leadership practices. While many Tribal peoples may have cultural, linguistic, and even kinship connections, many lack a centralized leader or government with anything equivalent to European assertions of control. Moreover, numerous Tribal groups were forcibly consolidated into missions, forts, and reservations, often enslaved or as prisoners of war with no freedom to leave. Yet, these missions, forts, and reservations have subsequently been recognized as “Tribes.” The Indian Reorganization Act of 1934, a monumental piece of legislation reversing decades of assimilation and anti-Tribal policies, was nevertheless another federal shove for Tribes to centralize and adopt Western style governance models. The modern Tribal government may therefore struggle to meaningfully reflect, or even access, the cultural views of Tribal members. The extent, then, that a modern, centralized Tribal government can represent the needs of its community depends greatly on the flexibility of the Tribal government to simultaneously navigate its cultural mismatch, its internal Tribal needs, and external pressures.

The colonial roots of the Tribal government underscore the fallibility of Tribes. Tribes are just as capable of dismissing the concerns of its members, of failing to make economically productive investments, of…making mistakes. The ad hoc and externally designed nature of the centralized Tribal government, and its obvious cultural mismatch, institutionalizes just one more barrier for Tribes to have to navigate. Consultation, potentially, offers a useful framework for facilitating this navigation. Tribal consultation expectations require Tribes to articulate their internal processes, to formalize their sovereign participation, and to open itself to internal dissent and dialogue. Consultation is often heralded as a necessary mechanism for engaging with other governments.

Though it arguably reinforces the centralized nation-state model originally imposed by the federal government to the detriment of traditional Tribal structures, to the extent that Tribes now utilize a centralized government, consultation can be used to narrow the gap of internal cultural mismatch between the Tribe and peoples. It can help facilitate what Rosser terms Tribal federalism—rebalancing the division of authority between the centralized bureaucracy and local communities. Who represents the Tribe in consultations? Does the representative change depending on the topic of consultation? Is there a resolution or comparable process for establishing the Tribe’s stance prior to a consultation? Does the Tribe have a public comment process? Does the Tribe have an internal review board? Is there an appeal process? Are there meaningful communication pathways between traditional leaders and government leaders? Such devolution will be a complex, ongoing process. But Tribes have done a remarkable job surviving and adapting.

Cover art by Jared Yazzie of OXDX Clothing.

Related Content