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 firstname.lastname@example.org, or via galandabroadman.com.