Tribes, Courts & Consultation

The concept of government-to-government consultation between Indian tribes and the United States is long standing and well-recognized. Nearly every president in recent memory has endorsed the policy that the special trust relationship requires meaningful consultation with Indian tribes.

In this modern age of self-determination, the federal government eschews the paternalistic policies of the past and acknowledges in principle that agency decisions are more effective and long lasting when tribes are substantively involved in policy development.

Nonetheless, in the daily practice of governing, consultation does not always attain its intended purpose, which is to ensure that Indian tribes are consulted before government officials make decisions that impact their lives and territories. Evidence of this unfortunate dynamic can be gleaned from current litigation in the courts, where robust and meaningful consultation, either as required by statute or as a matter of general intergovernmental engagement, could have potentially avoided costly and burdensome lawsuits. This paper examines three recent cases where tribes have resorted to the courts to remedy their exclusion from the government's decision making process.

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