Lip Service or Recommitment? An Analysis of Three Forms of Tribal Consultation

• In Event: Democratic Deficits and Developments in Indigenous Politics

Abstract

On January 22nd, 2021, the Biden Administration initiated a multi-step plan to revitalize the nation-to-nation consultation between the various Federal Agencies and Tribal governments. This plan began with the promulgation of the Presidential Memorandum on Tribal Consultation and Strengthening Nation to Nation Relationships which triggered a two-year long review and reconstitution of consultation policies across the myriad federal agencies subject to Executive Order 13175. Over 50 federal agencies drafted consultation polices for the first and those agencies which already had consultation policies reviewed and revised them to be inline with guidance from the Whitehouse. The Biden Administration followed this directive with further consultations directly between the White House and the Tribes on further steps that were needed to strengthen the nation-to-nation relationship between the Federal government and the Tribes. This two weeklong consultation process between the White House and the Tribes resulted in a wave of Federal consultations hosted by most of the Executive branch Federal Agencies, held on both the regional and national level. These agency level consultations are still in process for some agencies—the Department of the Interior and the Department of Treasury being the two most notable of the Executive agencies—but most Executive agencies have completed their consultation processes on how to either revise or, in the case of agencies that did not have consultation policies prior to 2021, implement agency level nation-to-nation consultation processes.
Before the widespread implementation of these new and/or revised consultation policies go into effect, it is useful to take a step back and analyze the existing status of nation-to-nation Executive agency level consultation processes. This paper divides the analysis into three sections: 1) consultation processes which are consistent, regular, and multi-level—such as the Office of Management and Budget 4-to-6 month long consultation process on the annual budget; 2) consultation processes which are internally triggered—such as the Center for Medicaid and Medicare Services consultations on any and all CMS regulations which may impact Tribes or Tribal members; and finally, 3) consultations processes which are externally triggered—such as the late-stage consultations the Tribes triggered around the Dakota Access Pipeline. While each of these three consultation process have been deployed to varying degrees, it is the third form—the externally triggered, late-stage consultations—which generate the most litigation during and following the process. The Biden Administration appears to be motivated to minimize the number of consultation based court cases as the continuing guidance from the White House to the various Executive agencies has directed the federal agencies to adopt consultation policies which lend themselves more towards the first type of consultation process and away from the third type of consultation process. This paper will provide an analysis of each consultation process type—their strengths and weaknesses in terms of achieving the UNDRIP directed free, prior, and informed consent of Indigenous communities—and then proceed to a consideration as to whether moving towards consultation processes which are consistent, regular, and multi-level best strengthen Tribal sovereignty, or merely reduce agency liability.

Author

• Dani Delaney, Queen's University