Federal Indian Consultation Right Extends to Tribal Members

Indian Country Today Media Network reports that Interior Sets Cobell Land Consolidation Consultations. This is a critical recognition by the United States that the federal Indian consultation right, meaning the substantive duty of the United States to consult with Indians about matters of tribal implication, extends to tribal members. That is especially true in regard to individual Indian-owned lands and other trust assets.

Pursuant to the Indian Land consolidation Act, and the Department Interior's Indian Land Consolidation Plan enacted pursuant to that statute: “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” Cobell v. Norton, 225 F.R.D. 41, 44 (D.D.C. 2004). Sales of allotted land interests are governed by provisions set out in 25 C.F.R. § 152. “The common feature of all these kinds of Part 152 sales is that they require communication between individual Indian trust-land owners and agents of Interior.” Cobell, 225 F.R.D. at 45.

The fiduciary duty to individual Indians includes consultation, as “[c]onsultations . . . can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 AM. IND. L. REV. 21, 31 (2000). This duty is triggered when an agency decision impacts the “value, use, or enjoyment” of Indian trust assets. U.S. DEP’T OF THE INTERIOR, PROTECTION OF INDIAN TRUST RESOURCES PROCEDURES MANUAL 13 (1996).

The federal Indian consultation right vis-a-vis tribal governments is alive and well, especially at common law. The right vis-a-vis tribal members is in only its nascent stage, legally speaking.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

ATNI Calls For More Action By The Obama Administration On Indian Consultation

On February 3, 2011, the 57 tribal governments from Oregon, Idaho, Washington, southeast Alaska, Northern California and Western Montana that comprise the Affiliated Tribes of Northwest Indians (ATNI), passed a Resolution, reciting that:

[T]he federal Indian consultation right requires the United States and its agencies, as well as states and local governments, to meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.

In reference to President Obama’s Executive Memorandum, ATNI proclaimed:

[M]any federal agencies have yet to comply with President Obama’s Memorandum by promulgating a detailed plan of action to implement Executive Order 13175 and in turn honor the federal Indian consultation right; and . . .

[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.

To give but one example, Obama’s Labor Department and its various agencies have yet to promulgate an action plan or set of policies regarding tribal consultation. Given President Obama’s campaign accord with labor interests to advance employee rights, Labor’s agencies increasingly seek to exert federal regulatory power over tribal government, casino and other employers. That political convergence represents the proverbial perfect storm for the next federal appellate court decision thrusting so-called federal laws of general applicability upon Indian Country.

Appreciating that reality, ATNI resolved that it and its 57 member tribes, along with the National Congress of American Indians, will “immediately request that the White House, including the Domestic Policy Council and Office of Intergovernmental Affairs, 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.” Other tribes should join ATNI and NCAI in seeking to hold any delinquent federal agencies accountable regarding the Indian right of consultation.

ATNI's Resolution was prompted by Gabe Galanda's presentation, "The Federal Indian Consultation Right: Exercising It."

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

Gabe Galanda to Address ATNI on Federal Indian Consultation Right Developments

Gabe Galanda has been invited to address the Affiliated Tribes of Northwest Indians General Assembly next Wednesday, February 2, at ATNI's Winter Conference at the Coquille Tribe's Mill Casino Resort in Coos Bay, Oregon. His address is titled, "The Federal Indian Consultation Right: Exercising It" (download the slides). Gabe will provide an update on the Department of Interior's Draft Consultation Policy; the United States' endorsement of the United Nations Declaration on the Rights of Indigenous People and the international indigenous consultation norms codified therein; the import of the Quechan Tribe's successful litigation effort to halt a solar power project development on tribal sacred lands as a result of the United States' failure to consult.

Gabe recently published The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion, in The Federal Indian Lawyer.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

Oh, That Old Line

According to Frank Fisher, Seneca County attorney:

“We just want … everyone to pay their fair share of taxes. Who could argue with that?’’

That is in reference to Seneca County's "push to foreclose on the five [Cayuga Nation] properties before the federal appeals court rules in the Oneida Indian Nation case."

You see, Seneca County conveniently (or perhaps ignorantly) ignores the fact that it is likely already getting its "fair share" of taxes, for use in providing local services. In fact, the County is probably overcompensated for any services that they provide to local tribal members.

Under the economics of “tax exporting,” it is frequently tribal governments – not state or local governments – that bear a disproportionate financial burden associated with taxation vis-à-vis local services rendered. One study, for example, found that

On most reservations, there are few retail stores and tribal members must go off reservation and pay state taxes on everything they buy. Nationwide, this amounts to $246 million annually in tax revenues to state governments, while states expend only $226 million annually on behalf of reservation residents.

That reality begs the question: why isn't Seneca County interested in negotiating some form of compact with the Cayuga Indian Nation, to resolve its property tax dispute? Intergovernmental tax compacting -- as suggested by the U.S. Supreme Court in Oklahoma Tax Commission v. Citizen Band of Potawatomi Tribe of Oklahoma, 498 U.S. 505, 515 (1991) -- allows for taxation to be commensurate with services rendered, taking into account the unique situations that exist between tribes and their neighbor governments.

Mr, Fisher, perhaps it is Seneca County who is not "paying its fair share of taxes" -- for services rendered to Cayuga Indian Nation citizens.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

A Tale of Two California Cities

Well, one is a county. In Northern California, Lake County requests consultation with the Robinson Rancheria regarding the potential impact of a tribal gas station project, on a nearby wetlands restoration area. According to a local news report, County and Tribal leaders have met to elicit

responses to the county's concerns, which included stormwater drainage, grading during the rainy season and the impact on the wetlands.

[T]he tribe has agreed to sit down with county officials – at a date and time yet to be determined – to discuss the Middle Creek Restoration Project, in which the tribe has been a partner in the past.

Lake County invokes a 1999 gaming compact between the Tribe and the State of California, but it is doubtful that dispute resolution provisions in that tribal-state agreement extend to any third-party.

In any event, the Tribe and County are consulting with each other -- government to government, neighbor to neighbor -- as they should. The citizens of Robinson Rancherie, the City of Nice and Lake County should be pleased with their elected leaders, at least for the time being.

Meanwhile, in Southern California, the City of Temecula has sued its neighbor, the Pechanga Band Luiseno Indians in U.S. District Court.

Temecula sued the tribe over a dispute that centers on a March agreement with the tribe.

The city contends the pact called on the tribe to pay the city at least $2 million annually to cover the city's casino-related expenses, such as police service.

The city expected the $2 million in June. But the tribe said the pact was not final until talks with Riverside County concluded.

The City of Temecula now faces an order from the District Court judge requiring it to show cause regarding why the court has jurisdiction over the city's money damages claim against the Tribe. Temecula also invokes dispute resolution language in a tribal-state compact, despite the city not being a party to that agreement.

Under prior California federal district court decisions, holding that tribal-state compact dispute resolution language does not extent to third parties, Temecula should prepare to be dismissed out of court.

It is unfortunate that Temecula refuses to act like an adult government, by litigating, rather than consulting in good faith, with its tribal neighbor. The Riverside County taxpayers deserve better.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

Nice Try, DOI

On January 14, the Department of Interior (DOI) issued a draft agency policy on consultation with Indian tribal governments, as required by President Obama’s Nov. 5, 2009 White House Memorandum on Tribal Consultation. The draft includes the following "DISCLAIMER":

Except to the extent already established by statute, this Policy is intended only to improve the internal management of the Department, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the Department or any person. The Department also does not waive any applicable privilege that it may hold by virtue of this Policy.

This disclaimer language is designed to insulate the Department from legal liability for any of its agencies' failure to meaningfully consult with tribes. Yet if the disclaimer withstands tribal comment and ends up in the adopted policy -- it should not -- it will fall short in circumscribing a DOI agency's liability for failing to consult.

That is because as already established by federal common law, the United States' trust responsibility includes an obligation to consult with tribal governments. Indian Treaties likewise require consultation, as does the United Nations Declaration on the Rights of Indigenous People, which the U.S. recently endorsed.

So while the disclaimer might operate to militate against a tribal consultation claim against a DOI agency under the APA, aggrieved tribes can still sue that agency for equitable relief to enjoin federal action pursuant to, inter alia, Indian Treaty and trust doctrine.

For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

More Legal Challenges Ahead for Tribes in 2011

Anthony Broadman is featured in a column in Indian Gaming magazine, More Legal Challenges Ahead for Tribes in 2011.

Tribal governments have educated states regarding tribal sovereignty, tribal governmental gaming, and the risk of attacking tribes and their casinos in the courtroom. So much so that, while high profile tribal-state disputes remain and continue, a new generation of intergovernmental fight may soon outnumber them. States’ younger siblings – counties, cities, and municipalities – do not yet understand tribal sovereignty. And as local governments struggle to fund operations and please an increasingly fickle local electorate, look for more disputes like we’ve seen recently in the non-gaming context, at Oneida, Passamaquoddy, Cayuga, and elsewhere.

The tribal-federalist system puts tribes in the awkward position of possessing a right to government-to-government relations with the United States and the individual states, but still needing, at times, to act as local governments. The jurisdictional overlap with other local governments not surprisingly drives tax and services disputes, and can sour local relationships. Counties often fail to perceive tribes as governments. And when a tribe undertakes economic development “in” a county, casino or not, it should expect a fight. Even when a county first welcomes economic development, later versions of the same local government can see tribal ventures as potential revenue sources, which they attack accordingly.

Tribes can and will fight inappropriate local government activity in federal court. But litigation should be the last resort. Not only are federal (and state) courts unfriendly to tribal interests, but, as compared to cities and counties, tribes have far more to lose on their own behalf and on that of their sister tribes. Tribal governments should explore constructive government-to-government arrangements even at the local level, under which tribes can secure some measure of certainty by binding counties, cities, and their future leaders. The intergovernmental agreement may be commonplace with states, but it is difficult for their younger siblings to grasp. As difficult as it may seem to stoop the local governmental level, counties and cities will not educate themselves. It is up to Tribes to school local governmental actors, teach them how to behave like good neighbors, and secure the kind of jurisdictional and legal certainty necessary for sustainable economic growth.

Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or via galandabroadman.com.

NIGC Chair Affirms Federal Indian Consultation Right

Kudos to National Indian Gaming Chairwoman Tracie Stevens for vocally affirming her and the agency's strong commitment to government-to-government consultation with tribes.

For issues concerning the needs of specific tribes and their operations, we will continue to meet with tribes at their request. For these meetings, we will consult in the most efficient manner. We are currently reviewing our 2004 consultation policy to ensure that it is relevant, timely, workable and respectful. Additionally, as a method to help inform our own consultation policy review process we’re participating in the Department of Interior’s consultation team discussions regarding President Obama’s Nov. 5, 2009 consultation directive. We intend to build better relationships with our sister agencies so tribes are not faced with redundancies.

On December 2, 2010, at the 7th Annual Northwest Gaming Law Summit in Seattle, Chairwoman Stevens confirmed that the agency will consult with a tribal government prior to initiating any enforcement action against that tribe or its gaming enterpise, as contemplated by the NIGC's tribal consultation policy.

As she alludes, it is also important for the NIGC to help ensure that its sister agencies, such as the IRS and FinCEN, also meaningfully consult with tribal governments before launching in inquest into a tribe's gaming affairs. Indeed, the right hand and the left hand of United States' Indian gaming regulatory regime must be in sync when it comes to government-to-government consultation. Otherwise, the Federal Government will likely find itself in breach of the federal Indian consultation right.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

Mega Solar Power Development Stopped for Failure to Consult

On December 15, a Southern California Federal District Court enjoined the United States from allowing the development of a large solar power project to proceed, because the U.S. Department of Interior's Bureau of Land Management failed to properly consult with the Quechan Tribe. The project is proposed for development in Southern California's Imperial Valley; on federal lands off of the Quechan Reservation but amidst hundred of tribal sacred sites. In a sweeping decision, the District Court ruled that the United States' so-called consultation efforts with the Quechan Tribe, as required by the National Historic Preservation Act (NHPA), among other federal laws, were wholly 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. Indeed, Defendants' grouping tribes together (referring to consultation with "tribes") is unhelpful: Indian tribes aren't interchangeable, and consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under NHPA.

The District Court further observed:

BLM's invitation to "consult," then, amounted to little more than a general request for the Tribe to gather its own information about all sites within the area and disclose it at public meetings. . . . While public informational meetings, consultations with individual tribal members, meetings with government staff or contracted investigators, and written updates are obviously a helpful and necessary part of the process, they don't amount to the type of "government to government" consultation contemplated by the regulations. This is particularly true because the Tribe's government's requests for information and meetings were frequently rebuffed or responses were extremely delayed as BLM-imposed deadlines loomed or passed.

According to the ruling, the private energy developer hoped to qualify for stimulus funds under the American Recovery and Reinvestment Act of 2009 by beginning construction by the end of 2010. "To that end, BLM apparently imposed deadlines of its own choosing," the Court observed.

Because of the large number of consulting parties (including several tribes), the logistics and expense of consulting would have been incredibly difficult. None of this analysis is meant to suggest federal agencies must acquiesce to every tribal request. That said, government agencies are not free to glide over requirements imposed by Congressionally-approved statutes and duly adopted regulations. The required consultation must at least meet the standards set forth in 36 CFR 800.2(c)(2)(ii), and should begin early. The Tribe was entitled to be provided with adequate information and time, consistent with its status as a government that is entitled to be consulted. The Tribe's consulting rights should have been respected. It is clear that did not happen here.

Presumably, without federal stimulus funds, the future of this high-profile Southern California solar energy project is in doubt.

Despite President Obama's November 5, 2009 Tribal Consultation Memorandum, and in turn various federal agencies self-touted efforts to consult with Indian tribes on tribal consultation, the District Court's ruling is at least the second such decision against the United States resulting from the Feds' failure to consult with Indian tribes regarding federally-backed private development projects, in the latter half of 2010.

In August, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was successfully wielded before a Washington State Federal District Court to put halt the USDA's efforts to allow a private contractor to import solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas.

One can only hope that a third strike against the Obama Administration is not required before the Federal Government truly appreciates its abiding obligation to consult with tribal governments in any matter of tribal implication -- and the disastrous economic and non-economic consequences for its failure to consult.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

U.S. Endorses International Indigenous Consultation Norm

Today, the United States officially endorsed the United Nations Declaration on the Rights of Indigenous People. In doing so, the United States endorsed the international legal norm of consultation with indigenous, including American Indian, people, embodied various Articles in the Declaration, most notably Articles 18 and 19:

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

On top of various federal laws, including Indian Treaties, Presidential Executive Orders and Memoranda, statutes, regulations and federal agency policies and protocols, and the federal common law, as well as international Treaty norms, the Declaration entrenches the United States' obligation and commitment to government-to-government consultation with American Indian tribal governments.

Tribal governments should invoke any or all such federal laws, as well as the Declaration, when government-to-government consultation is next required of the United States. For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.