Creating a robust tribal consultation process

As Published in Washington Lawyer, July-August 2022, Taking the Stand

By Thomas Andrew O’Keefe

What a Meaningful Tribal Consultation Process Should Look Like

The United States of America has a long and sordid history of egregious human rights violations committed against Indigenous peoples that includes physical and cultural genocide as well as forcible removal and usurpation of tribal lands. Even today, many Native American communities find themselves exposed to toxic pollution emanating from energy and mining projects operating on nearby federal property. This contamination jeopardizes water supplies and contributes to inordinately high rates of asthma, cancer, and other serious health maladies among Native Americans.

Recognizing the U.S. government’s frequent failure to adequately and effectively confer with sovereign tribal nations on federal policy matters that affect them, Joe Biden promised during the 2020 presidential campaign to create a robust consultation mechanism that would be consistent across all federal agencies and meaningfully engage tribal nations if he were elected president. Within days of taking office, President Biden issued the Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships.

In addition, a bill called the Requirements, Expectations, and Standard Procedures for Effective Consultation with Tribes (RESPECT) Act was introduced in the U.S. House of Representatives on May 28, 2021.(1) The act would, among other things, provide comprehensive codification of the federal government’s consultation process with Native American communities as well as offer the ability to compel federal agencies to engage in meaningful discussions.(2)

Building on Earlier Initiatives

Executive Order 13175, which President Bill Clinton signed on November 6, 2000, serves as a foundation for the Biden administration’s efforts. The order was designed to “establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.”(3) Such policies include “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes.” In addition, federal government agencies are required to have an accountable process to ensure meaningful and timely input by tribal officials.

When establishing federal standards, agencies should respect tribal self-government and consult with tribal officials as to the need for federal standards. As a general rule, no federal agency should promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation, consulted with tribal officials early in the rulemaking process.

Nothing in Executive Order 13175 grants tribal officials any type of a veto power over federal regulations, proposed legislation, and actions. In fact, section 2(a) emphasizes that American Indian tribes are “domestic dependent nations” under United States protection even if the right of native tribes to self-government is also acknowledged.

Noting that “[h]istory has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results,” the Obama administration issued a Presidential Memorandum on Tribal Consultation in 2009 directing all federal government agencies to develop and periodically update a detailed plan of action — following consultation with Indian tribes and tribal officials — for complying with Executive Order 13175.(4)

The biggest shortcoming with both Executive Order 13175 and the subsequent Obama memorandum is that neither offers any guidelines as to what constitutes adequate and effective consultation. In addition, current federal agency consultation policies — when they even exist — remain poorly coordinated, are largely an afterthought, and can vary, compelling tribes to master the idiosyncratic methods of different federal government agencies.(5) Furthermore, neither the order nor the memorandum permit any type of judicial review that would give tribal nations the ability to compel federal agencies to engage in consultations, or to hold them accountable if they fail to do so.

Biden’s memorandum issued on January 26, 2021, is notable for underscoring that “American Indian and Alaska Native Tribal Nations are sovereign governments” and the White House pledges to make “regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.”(6) Otherwise, the provisions are very similar to those found in the 2009 Obama memorandum. There is the same limitation on judicial review in that nothing in the Biden memorandum is intended to “create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”

Making Tribal Voices Heard

Based on International Labour Organization Convention 169 on Indigenous and Tribal Peoples(7) and the United Nations Declaration on the Rights of Indigenous Peoples,(8) as well as the guidance provided by the Inter-American Human Rights System,(9) a meaningful and robust consultation process should require that federal agencies:

1. Consult with actual or potentially impacted American Indian and Alaska Native communities in good faith by, among other things,

Respecting traditional decision-making structures;

  • Providing all relevant information promptly and in a manner that accounts for language and other potential barriers to effective engagement;
  • Providing the community with adequate time to make determinations; and
  • Not taking advantage of power imbalances.

2. Conduct culturally appropriate consultations before any type of government action occurs, including the issuance of a regulation, legislation, or administrative act such as the issuance of a permit or license;

3. Carry out an environmental and social impact assessment prior to the commencement of any large-scale project or activity;

4. Include the community in the design of any impact assessment, including seeking input on what should be examined;

5. Obtain, as a result of consultations, and maintain through subsequent engagement the “free, prior, and informed” consent of the relevant American Indian or Native Alaska community. This means that consent previously given can subsequently be revoked; and

6. All agreements and understandings arising from any consultations should be committed to writing and signed by all the participants.

Under international human rights law, consultation is part of the collective rights of Indigenous peoples. (10) This can create tensions between respect for the human rights of individuals versus those of the whole community. Any robust consultation must therefore ensure that the process is inclusive and not limited to the narrowly defined category of stakeholders such as that found in Clinton’s Executive Order 13175 and the subsequent Obama and Biden memoranda, which limit consultations to elected or duly appointed officials of native tribal governments or authorized intertribal organizations.

A 2010 report by the Inter-American Commission on Human Rights provides guidance for ensuring that the collective interest of an Indigenous community does not prevail to the detriment or exclusion of individual members. The report recommends that all members of a community should be fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or collectively. (11)


The most effective way to ensure that robust consultations with American Indian and Alaska Native tribal nations become a regular and meaningful obligation for federal government agencies is to permit these nations the right to bring legal action in federal courts for non-compliance. Unfortunately, the Biden administration’s 2021 memorandum does not provide for the right to sue the United States government, its entities, or its officers, employees, and agents for the failure to carry out meaningful discussions. Accordingly, if this shortcoming is not redressed at the executive level, it underscores why Congress needs to approve the RESPECT Act.

The Biden administration can also show that it is genuinely committed to making respect for tribal sovereignty and self-governance an administration priority by accepting that American Indian and Alaska Native tribal nations retain the sovereign right to veto any federal policy or activity that detrimentally impacts them.


1 The full text of H.R. 3587 (RESPECT Act) is available at:

2 Pursuant to section 601 of the RESPECT ACT, a tribal government may seek judicial review of a determination of an agency, provided all other administrative remedies have been exhausted.

3 Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 (November 6, 2000),

4 Presidential Memorandum on Tribal Consultation (November 5, 2009),

5 Testimony of Lauren van Schilfgaarde regarding the discussion draft of the RESPECT Act before the Subcommittee for Indigenous Peoples of the United States, Committee on Natural Resources, U.S. House of Representatives, May 20, 2021, p. 3.

6 Memorandum on Tribal Consultation and Strengthening Nation-to-Nation (January 26, 2021),

7 ILO Convention 169 recognizes a role for Indigenous and tribal peoples in any endeavor that may impact their lives and the lands they occupy or otherwise utilize. It is binding on the 24 ratifying countries, the majority of which are in the Western Hemisphere, albeit the United States is not among them. International Labour Organization, Indigenous and Tribal Peoples Convention No. 169, (June 27, 1989),

8 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, resolution adopted by the
General Assembly on September 13, 2007, The UNDRIP requires the “free, prior, and informed consent” of Indigenous peoples whenever any activity or project has a significant impact on them and/or their way of life.

9 The Inter-American Human Rights System, which monitors, promotes, and protects human rights in all 35 member countries of the Organization of American States, including the United States, has attempted to inject greater uniformity into the myriad interpretations by national governments of what constitutes adequate and effective consultations with Indigenous peoples.

10 Scheinin, Martin, and Åhrén, Mattias, “Relationship to Human Rights, and Related International Instruments,” UN Declaration on the Rights of Indigenous Peoples: A Commentary, Jessie Hohmann and Marc Weller, eds.
(Oxford University Press, 2018).

11 Inter-American Commission on Human Rights, “Indigenous and Tribal People’s Rights Over Their Ancestral
Lands and Natural Resources” (December 2009),

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