Document Type

Article

Publication Title

Colorado Environmental Law Journal

Abstract

One of bedrock principles of federal Indian law is a centuries-old understanding that the tribes, as “domestic dependent nations,” have “government-to-government” relationship with the federal government, which has a trust obligation concerning the tribes, their sovereignty, and their cultural resources. Although this relationship was first judicially articulated in the 19th century, it was interpreted to require federal “consultation” with the tribes under a series of executive orders beginning in the 1970s and the National Historic Preservation Act. However, this government-to-government consultation has been largely disappointed the tribes, which have often complained that federal agencies have reduced it to procedural “box-checking,” with little or no evidence of substantive results. As a result, the tribes have called for “meaningful consultation” and resulting “collaborative management” going forward. This paper discusses the origins of the modern consultation doctrine and considers several case studies which have and have not produced substantive results. We draw some lessons from the case studies that the Biden Administration, which has professed an interest in engaging in meaningful consultation, may draw upon. If it does, tribes may gain an important management role concerning off-reservation resources that are significant to their history and culture.

First Page

1

Last Page

54

Publication Date

2022

Comments

Co-author Lizzy Pennock is a student at Lewis & Clark Law School.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.