"As discussed in part one of this three-part series, the Obama administration has mandated that all federal agencies implement a written government-to-government consultation policy with Indian tribes. Even though many federal agencies have been slow to honor that presidential mandate, the new era of consultation enforcement has shown that the doctrine has real bite.

Most recently, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was wielded to put a screeching halt to the importation of solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas. Part one also discussed how the various presidential proclamations and the Indian trust doctrine can be invoked to assert Indian sovereignty via federal/tribal consultation. In this second part, I explain how Indian treaties – the Supreme Law of the land – mandate tribal consultation.

In Peoria Tribe of Indians of Oklahoma v. United States, 390 U.S. 468 (1968), the tribe argued that the federal government violated its treaty rights in 1857 when it sold tribal land without meaningful consultation. What made this case unique was a clause in the treaty at issue that reads: “it is agreed that the president may, from time to time, and in consultation with the Indians, determine how much shall be invested in safe and profitable stocks.” The Supreme Court held that because the tribe was not consulted, the treaty was violated and the United States was liable for the difference in price that the tribe would have received for its property at public auction, plus interest.

Would it have made a difference in Peoria if the consultation requirement were not made explicit in the tribe’s treaty? Likely not. To begin with, it is clear from the discussion in part one of this series that meaningful consultation is required when any dispossession of treaty resources is involved. See Klamath Tribes v. U.S. Such is consistent with the preliminary injunction ruling in Yakama, wherein the federal court posed “serious questions about whether defendants adequately consulted with the Yakama Nation as required by its Treaty of 1855” – even though, unlike in Peoria, the Yakama Treaty does not include an explicit consultation right regarding the reserved subsistence rights at issue. Indeed, the treaty obligation to consult that is intrinsic in any bilateral agreement between nations."

Get the Story:
Gabe Galanda: The federal Indian consultation right: No paper tiger (Indian Country Today 12/6)

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