Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country would argue that effective consultation is not occurring. This may be due in part to a lack of effective guidance on what federal-tribal consultation should look like. Given the existing lack of effective guidance as to what tribal-federal consultation should normatively look like, this article looks to models of cooperative management and collaboration that may serve as useful mechanisms for improving consultation between tribes and the federal government. The article concludes with several discrete recommendations on what should be included in tribal-federal consultations to ensure that legal, moral, and ethical requirements are met.
Elizabeth Kronk Warner et al., Changing Consultation, 68 The Fed. Law. 55 (March/April 2021).