"The point of this series is that consultation can be used as a sword – a preemptive strike that forces U.S. agencies to consult before taking action in Indian country – as well as a shield to guard from federal and private attacks on Indian sovereignty. As it stands, several federal agencies freely enforce their prerogative over tribes, under the guise of so-called federal laws of general applicability and increasingly with federal court approval. Still, at each stage of federal encroachment or enforcement, federal law requires consultation with tribal officials.
IRS protocols, for example, require agents to consult with tribal officials in any compliance review or audit. Likewise, National Indian Gaming Commission policy requires tribal consultation when the agency conducts investigations or takes enforcement actions regarding Indian gaming. The Environmental Protection Agency’s consultation mandates are numerous; sprinkled throughout the CFRs and the agency’s own internal regulations. The departments of Treasury and Labor are developing consultation standards that will govern the likes of the Financial Crimes Enforcement Network (FinCEN), Occupational Safety and Health Administration and the National Labor Relations Board’s behavior in Indian country.
In practice, preemptive consultation means that a tribe should not turn over one shred of paper to the IRS or NIGC in response to an information or examination request, or allow EPA or OSHA agents any access to tribal facilities or enterprises, until the federal agency has consulted with the tribe. To be clear, consultation may not achieve the tribe’s desired result, i.e., the feds abandoning their proposal or going away. But the federal Indian consultation right nonetheless provides tribes important procedural safeguard.
There is a very practical incentive for the general public to support ongoing federal-tribal consultation. It is not only the law; it is good business. The failure of federal agencies to consult with tribes can have devastating economic impacts, even to the non-tribal sector. Tribal concerns about or opposition to a federally licensed or stimulus-funded project can cost investors time and money, and may even stop a project dead in its tracks."
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Galanda: The federal Indian consultation right: No paper tiger
(Indian Country Today 12/13)
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