Sarah Adams-Cornell & Walela Knight
Introduction
As sovereign nations, Tribes have authority and responsibility over their land and people. Modern relationships between Tribes, states, and the federal government are based on the colonization and genocide, legalized by the United States under federal Indian law.4 Federal Indian law both recognizes Tribal sovereignty but also carves out instances in which a Tribe’s criminal or civil jurisdiction can be infringed.5 It has allowed federal agencies, Congress, and federal courts to exercise overwhelming authority to determine the scope of Tribal and Indigenous rights. And yet, Native representation in these same branches have been abysmal.
One method for ensuring Tribal and Native perspectives in these decision-making processes has been through Tribal consultation. Consultation is a formal, government-to-government process that requires governments to consult with Tribes before taking actions that would impact them.6
Tribal consultation is essential for effective Indian health policy. This article argues for a more robust mechanism for Tribal consultation for health policy issues. Section I briefly describes Tribal governments and their relationship to the federal government. Section II summarizes existing requirements for Tribal consultation under federal and state law. Section III describes the limitations of existing Tribal consultation practices. Finally, section IV describes the impact of inadequate consultation on American Indian and Alaska Native health and offers recommendations for a Tribal consultation framework7 that fully supports American Indian and Alaska Native health.
This article refers to the Indigenous people of what is now referred to as the United States using various terms including American Indian and Alaska Native, Native, Indian, and Indigenous. Each of these terms is used regularly in practice and, depending on the context, can be appropriate.8 Some primary sources will use other terms such as “Native American.” If quoting or describing these primary sources, this article will also utilize the language used by the source. This article capitalizes these terms, as well as Tribe and Tribal.
Tribal, state, and federal government relationships are governed by a body of law called federal Indian law.15 At the core of this body of law is the principle of Tribal sovereignty, which is not based on federal law but instead recognized by it.16 Sovereignty refers to the authority of Tribes to exercise jurisdiction over their land and govern their people.17 As distinct nations, each Tribal government and its law are unique and reflective of their histories and cultures.18 Tribal sovereignty is also a means to protect each Tribe’s cultures, practices, and teachings.19
The Supreme Court has found that the United States Congress holds a plenary power to legislate on all issues regarding Tribes or American Indian and Alaska Natives.20 While plenary power allows for a federal preemption of Tribal authority or abrogation of Tribal treaty rights, the use of this power to undermine Tribal sovereignty or to absolve federal responsibilities outlined in treaties is strongly disfavored. Nevertheless, the federal government has a long history of using law to erode Tribal jurisdiction,21 remove Indian children from their communities,22 and limit cultural and religious practices.23
Based on history, treaties, agreements, case law, and legislation, the federal government maintains a trust responsibility towards Tribes.24 The trust responsibility is both a fiduciary duty and a moral duty to protect Tribal treaties, lands, resources, and rights as outlined under federal law.25 One of such rights under federal law is the provision of health care from the federal government. Tribal-United States treaties require the federal government to provide health services to Tribes in exchange for their ceded territories.26 These requirements have also been incorporated in federal legislation.27 In many ways, the federal government has reneged on these treaty responsibilities as Indian health care is chronically underfunded and many health inequities persist in Indian country.28 Thanks to Tribal programming, some of these failings have been mitigated.29
Figure 1: Tribal Consultation v. Tribal Engagement
As discussed above, the United States has weaponized law and legal systems against Indigenous people and Tribal governments. Additionally, federal Indian law assigns incredible authority in Congress, the President, agencies, and courts to determine the scope of Indigenous rights33 and in turn the welfare of Indigenous communities.34 Thus, effective Tribal consultation is essential to prevent the continued unilateral adoption of federal policies that negatively impact Indian country35 and is obligated under the federal trust responsibility.36
In the United States, Tribal consultation requirements have been incorporated into law. This section summarizes these legal requirements. Chronologically, the consultation “requirements” proffered by the United Nations (UN) are both younger than federal consultation mandates and not legally binding. Yet, they offer some of the most rigorous language. Therefore, this section first discusses consultation requirements proffered by the United Nations followed by a summary of federal executive and statutory requirements in the United States. This section ends by providing examples of state-level consultation requirements.
Consultation is referenced several times throughout UNDRIP,40 but Article 19 provides its overarching consultation mandate: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”41 In the context of international law, “states” refers to countries. Here, UNDRIP is (1) requiring countries to consult with Indigenous people, and (2) establishing a standard for this consultation in that it is based on “free, prior and informed consent.”42 Professor Carla Fredericks (Mandan, Hidatsa, and Arikara Nation) has described this standard as containing individual elements, each with legal significance.43 Although the threshold for meeting each element continues to develop and may depend on the factual circumstance,44 it generally refers to consent that is secured without coercion, external pressure, and external timelines and based on adequate and transparent information.45 The standard also requires that consent be secured prior to action being taken.46
As a Declaration, UNDRIP is not legally enforceable against the countries that voted in favor of it.47 Instead, its impact has “moral and political force.”48 The United States voted against the declaration in 2007 but subsequently signed on under the Obama Administration in 2011.49 In its statement announcing the adoption of UNDRIP, the Administration tempered its support by including a statement regarding its understanding of Tribal consultation, stating, “the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.”50 In this statement, the Obama Administration emphasized its understanding of the term “consent” in UNDRIP not to be synonymous with the term “agreement.” Under this interpretation, the United States can consult with Tribes without agreeing with the course of action. It highlights an important distinction, made by Professor Robert Miller (Eastern Shawnee)51 and others,52 in the language provided in UNDRIP as compared to the requirements under federal law. Consultation is not the same as consent.
Under Executive Order 13175, agencies are required to consult with Tribes on “policies that have tribal implications,” defined as “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power . . . .”59 Independent agencies are not bound by the requirement but encouraged to follow them.60 Section 10 of the Executive Order prohibits enforceable rights or judicial review for breach of consultation requirements.61
The Bush, Obama, and Biden Administrations have reaffirmed existing requirements for Tribal consultation under Executive Order 13175 in their own presidential memoranda.62 The Trump Administration did not.63
Consultation practices and policies vary across agencies. Agencies with missions that are exclusive to Indians, like the Indian Health Service (IHS) and the Bureau of Indian Affairs, will have unique experiences of consultation as compared to those that do not. The same might be said when comparing agencies with substantial regulatory and enforcement authority, like the Environmental Protection Agency and the Occupational Safety and Health Administration, and those that do not. Unsurprisingly, the consultation policies of each agency can vary as well but generally will provide background on Tribal consultation, identify consultation participants and roles, and list requirements on the minimum number of consultation sessions hosted each year.64
In practice, many agencies host consultation sessions during set times during the year, open to all Tribes.65 Often these sessions are held in conjunction with Tribal Advisory Committee meetings, whose members are Tribal leaders providing recommendations on issues but are not meeting on a government-to-government basis.66 Consultation does not need to be relegated to set meetings scheduled by an agency. Any Tribe or agency can request consultation at any time on any issue.
Table 1: Presidential Actions on Tribal Government Relations
For example, the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) mandates the return of culturally significant items, like human remains and sacred objects, to Tribes and Native Hawaiian organizations.73 NAGPRA applies to items that are in the possession of any institution or government receiving federal funds or discovered on federal or Tribal lands.74 The inventory and return of culturally significant items must be conducted in consultation with Tribes.75 NAGPRA authorizes lawsuits when its provisions are violated or to enforce provisions under the law.76
Although the National Environmental Policy Act does not expressly mention Tribal consultation, corresponding regulations require it.77 Additional laws including the National Historic Preservation Act, the Archaeological Resources Protection Act, and the American Indian Religious Freedom Act also require Tribal consultation.78 Federal legislators have also introduced legislation to provide more comprehensive consultation requirements, but have thus far been unsuccessful.79
In the context of health, the Indian Health Care Improvement Act (IHCIA)80 does state that “all actions under this chapter shall be carried out with active and meaningful consultation with Indian tribes.”81 However, this is done in the purpose section of the Act, the “Declaration of national Indian health policy,”82 rather than the operative provisions. Operative provisions are those that provide actual rights and obligations.83 Only a handful of operative provisions of the IHCIA reference consultation requirements.84 For example, consultation is required prior to the closure of an IHS facility.85 The United States District Court for the District of South Dakota has found the enforceability of this particular consultation provision.86 But the Court subsequently acknowledged that the provision does not require a certain type or method for consultation.87 Although important, IHCIA’s constulation requirements are limited and would not apply to broader health policy decisions coming out of the work of other health agencies beyond IHS, such as the Centers for Disease Control and Prevention (CDC) or the Food and Drug Administration (FDA).88
The foundations of Washington State’s consultation requirements are based on an intergovernmental agreement, the Centennial Accord, adopted in 1989 and signed by the state and each of the federally recognized Tribes within the boundaries of the state.97 It acknowledges the individual, government-to-government relationship between the state and each Tribe, and sets forth requirements to cultivate these relationships through communication.98 Consultation is not expressly mentioned in this accord but the parties considered it as part of the scope.99 However, Tribes found that in practice, consultation was inadequate, ineffective, or omitted.100 The subsequent Millennium Agreement, adopted in 1999, included an explicit commitment from all parties to develop a consultation process.101 Some of the requirements in this agreement were codified in the statute requiring state agencies to “[m]ake reasonable efforts to collaborate with Indian tribes in the development of policies, agreements, and program implementation that directly affect Indian tribes and develop a consultation process that is used by the agency for issues involving specific Indian tribes.”102 Under statutory code, a state agency is any “agency, department, office, or the office of a statewide elected official, of the state of Washington.”103 Some have suggested that these statutory requirements thus do not apply to the Washington State Health Authority (WSHA), which is tasked with assessing and developing state health care benefits plans.104 On its website, the WSHA appears to engage in at least some consultation activities.105 Recently, the Washington legislature received attention for the Climate Commitment Act, a late draft of which included a requirement for Tribal consent.106 One commentator noted that Tribes located within the boundaries of the state were not consulted regarding this provision.107
In addition to consultation requirements applicable broadly across certain entities, some states have codified certain requirements to communicate with Tribes regarding health-specific issues. Notably, the term “consultation” is not always used. Louisiana law requires its Medicaid program to establish “a process to seek advice on a regular, ongoing basis from designees of the state's federally-recognized Indian tribal organizations and Indian health programs about Medicaid and Children's Health Insurance Program matters that may have a direct impact on Indian health programs and tribal organizations.”108
In 1995, the California legislature tasked the Rural Health Division of the State Department of Health Services with conducting a study to develop methods to improve the collection of American Indian death statistics,109 which continues to be an issue across the United States today.110 The legislature required that the study be conducted with “input from, and consultation with, concerned tribes and tribal organizations and American Indian-controlled health care corporations.”111
One Idaho law uses the term “consult” but does so in its general meaning to seek information,112 rather than to refer to a formal government-to-government process. The state’s Hazardous Substance Emergency Response Act allows the Military Division of the Idaho Office of Emergency Management to “[a]dvise, consult and cooperate with . . . tribal governments . . . concerned with emergency response and matters relating to and arising out of hazardous substance incidents.”113 This law also authorizes communication and coordination with Tribal governments but does not expressly require it.
A North Dakota law requires facilities seeking a license to operate an opioid treatment program to submit a community relations plan as part of its licensure application that was “developed in consultation with the . . . tribal authority.”114 Interestingly, this requirement is not included to give access to the Tribal community for treatment of opioid use disorder but instead “to minimize the impact of the opioid treatment program on the business and residential neighborhoods in which the program will be located.”115 This law also assigns the task of consultation to the third-party facility rather than requiring consultation from the state before it approves the facility’s license.116 In this way, it likely is not formal government-to-government consultation but it may speak to some of the limitations of existing consultation mandates discussed in the subsequent section.
In some instances, the federal government requires states to consult with Tribes under federal law and policy. When making changes to Medicaid, Children’s Health Insurance Program, or health insurance exchange,117 or when applying for Medicaid Section 1115 waivers, states are required to consult with Tribes.118 However, states do not have to honor Tribal recommendations.119 Tribal consultation and advocacy proved essential in the approval of Arizona’s Section 1115 waiver in 2019.120
Medicaid is a public insurance program jointly funded between states and the federal government and administered by states.121 Although state Medicaid programs are required to follow federal law and policy, states have substantial flexibility in program structure and participant eligibility.122 Section 1115 waivers give the Secretary of Health and Human Services the ability to waive certain federal program requirements following a state application.123 The application must demonstrate that the waiver of a requirement will grant states the flexibility to improve their programs without compromising the goals of Medicaid.124 These applications are reviewed and approved on a case-by-case basis.125 Recently, under the encouragement of the Trump Administration, some states have been using section 1115 waivers to establish additional conditions to determine Medicaid eligibility, including employment.126 Such work requirement waivers are disfavored by health policy experts and advocates127 for reducing health coverage without impact on employment.128 Reimbursements through Medicaid are also important funding streams for health facilities serving American Indians and Alaska Natives eligible for services through IHS and Tribal health facilities.129 Arizona’s initial Section 1115 waiver application did not exclude American Indians and Alaska Natives from the work requirements.130 Following consultation at the state and federal level, the approved waiver provided an exemption for Tribal members.131
First, Executive Order 13175 has limited applicability. The executive order defines agency action to include regulations, legislative comments, proposed legislation, policy statements, and policy actions.133 It also only applies to those actions with “substantial direct effects on Tribes.”134 In some ways, this definition is narrower than what administrative law prescribes since it does not include “failure to act.”135 The definition under the executive order also leaves unclear which policy actions or statements would trigger consultation.136 CDC’s Tribal Consultation Policy lists potential actions triggering consultation as including “policy, funding/budget development, and program services, functions, and activities.”137 The FDA’s Tribal Consultation Policy requires consultation for “critical events,” defined as “a planned or unplanned policy action that has or may have tribal implications and substantial direct effects on Indian tribe(s).”138
Executive Order 13175, and both the CDC’s and FDA’s Tribal consultation policies, are only implicated by actions that have “substantial direct effects” on Tribes.139 Agencies, not Tribes, determine what is a substantial direct effect. Yet, Tribes would be better situated to assess which actions implicate them and to what degree. Executive Order 13175 also does not apply to independent regulatory agencies.140 Actions by agencies like the Federal Emergency Regulatory Commission and the National Transportation Safety Board are thus outside the scope of Executive Order 13175.
Second, there is a well-documented lack of commitment from agencies to ensure meaningful consultation. As Stephen Pevar summarizes, “[c]onsultation has been an exceedingly important development, but it has not always worked well. Some tribes report that government officials often contact them only after a decision has been made, do not participate in discussions in good faith, and only pretend to care what the tribe wants.”141 This lack of commitment manifests in various ways.
Tribal consultation necessitates a government-to-government conversation. However, agency leaders regularly send delegates rather than attend consultation sessions,142 indicating a lack of priority for these sessions. In this way, Tribes are unable to engage in a dialogue with fellow decision makers. Consultation sessions are regularly held with multiple Tribes represented.143 On its face, this is not necessarily inappropriate. But the voice of a single Tribe can be diluted and, Tribes may feel there is inequitable allocation of scarce resources across Tribes.144
Agencies also regularly fail to consult with Tribes prior to taking action,145 or find that sending a letter or email is sufficient to serve as consultation, even if Tribes do not respond.146 Agencies conflate and over rely on Tribal engagement activities, like Tribal Advisory Committees and letters to Tribal leaders, in lieu of government-to-government consultation.
Third, consultation sessions are often not structured as discussions or conversations. Instead, Tribes take turns sharing their concerns without any real response or action from agencies. In this way, consultation is not always meaningful. Recordings from recent consultation sessions during the COVID-19 pandemic, offer clear examples of consultation that did not include meaningful dialogue.147 In these recordings, Tribal representatives explain their perspectives both by unmuting their microphones and utilizing the chat function. There are numerous Tribes represented and each shared their perspective, and while there may be short comments from the agency, there is no meaningful discussion.
Fourth, existing consultation frameworks provide inadequate enforcement mechanisms. Even when consultation has occurred, agencies regularly ignore Tribal recommendations since consent is not required. Executive Order 13175 is the broadest federal consultation requirement in scope but offers no enforcement mechanisms. Thus, enforcement is limited only to consultation requirements if also authorized under federal legislation.
Finally, constulation places substantial burdens on Tribes to assess agency policies. This burden is not compensated. There is no racial-ethnic group whose rights are more heavily regulated than American Indians and Alaska Natives.148 Under federal statutory schemes alone, there are dozens of definitions for when a person is considered an “Indian.”149 The impacts of this on consultation cannot be understated. Native representation across our executive, agency, legislative, and judiciary has been limited. In many ways, Tribal engagement and consultation are the only ways in which Native people can have access to governing processes.
Even without a rigorous consultation mandate, the volume of federal actions that implicate Tribes and American Indian and Alaska Native communities is enormous. Additionally, the burden on Tribes to assess and consult on each of these activities is also immeasurable. Substantial time and resources go into assessing the impact of an agency action.
Figure 2: Logic Model Linking Tribal Consultation to Adverse Health Outcomes
Actions triggering Tribal consultation can also have direct impacts on health. Consider, for example, that consultation is required for the permitting of pipeline and other industry development. These activities can impact water and air pollution, which in turn impacts the health of nearby Tribal communities. Inadequate consultation during the 2009 H1N1 pandemic resulted in the exclusion of Tribes from the federal government’s distribution of antiviral medications. Instead, Tribes had to secure antivirals from states,156 who sometimes refused to provide Tribal shares if the Tribe’s distribution policy did not match the state’s policy.157 More recently, Tribes have not been consistently receiving access to COVID-19 related data from state partners,158 an outcome that could have been avoided with proper consultation.
Conversely, Tribes who were given the option of direct access to COVID-19 vaccines had some of “the most successful vaccination campaigns in the [United States].”159 Consultation has also resulted in direct funding to Tribes and Tribal-serving organizations at agencies like the CDC.160 Previously, Tribal access to grants and cooperative agreements had been limited.
Professor Jonathan Purtle has explored how disenfranchisement can create prolonged and pervasive stress on individuals.161 Tribal consultation is a means to prevent disenfranchisement in government and the continued omission of consultation on important decisions may have similar health impacts on American Indian and Alaska Native communities. The federal government determines which Tribal cultural practices are entitled to constitutional protections; who is considered an Indian under various federal laws; and the outcome of lands, water, and wildlife that Tribal communities have honored and protected since time immemorial. Not having a voice in such decisions could certainly result in chronic stress and other adverse health outcomes.
- Inform the Tribe of the relevant facts, and do so as early in the decision-making process as possible;
- Give the Tribe sufficient time to consider the situation, and provide the tribe with technical assistance and additional data if requested;
- Maintain dialogue with the Tribe, address the [T]ribe’s concerns in a timely manner, keep the [T]ribe informed on developments, and be open;
- Document the consultation process by notifying the Tribe in writing of developments and plans and request written comments from the tribe;
- Accept the Tribe’s recommendations unless compelling reason not to;
- When the Tribe’s recommendation is not accepted, send a written and detailed explanation of why.162
Some version of prongs 1-4 are likely utilized by agencies when choosing to consult with Tribes. Prongs 5 and 6, however, are likely rarely completed and offer a mechanism for agencies to justify their decisions in writing. Pevar’s framework does not, however, explicitly require consent. Professor Robert Miller argues that the United States should seek to secure Tribal consent in advance of decision making.163 He argues that it would be both less expensive and more efficient to secure Tribal consent in advance of executive decisions,164 which could otherwise be delayed or invalidated in litigation after the fact.165
Dean Kronk Warner (Sault Ste. Marie Tribe of Chippewa Indians) and her colleagues suggest that effective consultation requires adequate resources at the federal and Tribal level.166 Muscogee Nation Ambassador Jonodev Chaudhuri has argued that individual, Tribally-based consultations are the most effective.167
First, NIHPCA could outline specific types of actions that would trigger consultation and make the requirements apply to both executive and independent agencies. In supporting consultation in Indian health matters, this legislation could also minimize the burden on Tribal governments through funding and more robust technical assistance. NIHPCA could give mechanisms in which Tribes can request funds to hire or consult with experts of their choosing to support a thoughtful assessment of the federal agency action. For decisions impacting Tribes generally, if agencies choose not to adopt Tribal recommendations, NIHPCA would require agencies to document the reasoning for that decision. In the event that an agency action will specifically impact one or more Tribes, as in the approval of an industry permit near Tribal lands or the closing of an IHS facility, the federal agency should act only with advanced consent.
Additionally, as more funds are going into Indian country through federal grants and cooperative agreements, there needs to be consultation in advance to determine the best mechanisms in which to structure and distribute funds. Ongoing litigation challenging the distribution of Tribal funds from the Coronavirus Aid, Relief, and Economic Security Act could have been avoided had adequate consultation taken place.168 NIHPCA could also require states that receive federal funding to meaningfully consult with Tribes and outline the same mechanisms to ensure robust consultation.
Perhaps most importantly, Tribes must be able to request judicial review or other enforcement actions when consultation is lacking. This is not possible under Executive Order 13175. Statutory schemes that require consultation, however, can and often do provide mechanisms for redress when consultation is bypassed or inadequate. Executive order enforcement also necessitates that the government pursue the remedy, rather than another party like a Tribe.169 Legislation, however, can carve out the ability for Tribes to pursue litigation. Like NAGPRA and other federal laws, NIHPCA would authorize lawsuits for when its provisions are violated or to enforce provisions under the law.
As the epigraph to this article suggests, a single piece of legislation, alone, will not fix Tribal-federal relations. Bettering Tribal-federal relations requires a respect for Tribal sovereignty and jurisdiction. But federal agencies are already going to go through the theatrics of consultation, so much of which is inadequate. Let’s make constulation more meaningful by adding more prescriptive measures though legislation targeted toward health policy.
∗ Aila Hoss, JD is an Assistant Professor at the Native American Law Center at the University of Tulsa College of Law. She teaches and researches at the intersection of federal Indian law and health law. Before joining the legal academy, she practiced Tribal public health law at the Centers for Disease Control and Prevention where she observed the implementation of federal consultation mandates and their limitations. The author thanks Dr. Mary Owen, MD, Director of the Center of American Indian and Minority Health at the University of Minnesota Medical School, for her review and thoughtful comments on this article. She also thanks Center for Health Policy and Law for including this paper as part of a workshop at the Northeastern University Health Law Symposium: Health and the Body Politic: Undermining Democracy, Undermining Health. The author also thanks the board and staff of the Northeastern University Law Review for their excellent editorial assistance.
1 Sarah Adams-Cornell & Walela Knight, Matriarch, Speech at the Philbrook Museum Harvest Weekend: Why Representation Matters (Nov. 13, 2020); see also Betty Ridge, Matriarch Helps Women Share, Solve Issues, Tahlequah Daily Press (Apr. 11, 2019), https://www.tahlequahdailypress.com/news/tribal_news/matriarch-helps-women-share-solve-issues/article_81eec02b-306f-5319-8b9e-f0c89e6f47b8.html (discussing the origins of Matriarch and how native women gather to support, heal, and empower each other through the organization).
2 See Aila Hoss, Tribes Are Public Health Authorities: Protecting Tribal Sovereignty in Times of Public Health Crisis, SSRN 2–3 (Jan. 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3759311&download=yes; Darius Tahir & Adam Cancryn, American Indian Tribes Thwarted in Efforts to Get Coronavirus Data, Politico (June 11, 2020), https://www.politico.com/news/2020/06/11/native-american-coronavirus-data-314527; Dalton Walker, South Dakota Checkpoints: Timeline of Events, Indian Country Today (July 22, 2020), https://indiancountrytoday.com/news/south-dakota-checkpoints-a-look-at-key-events.
3 See Aila Hoss & Heather Tanana, Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic, in Assessing Legal Responses to COVID-19 77, 79–80 (Scott Buris et al. eds., 2020), https://static1.squarespace.com/static/COVID19PolicyPlaybook_Aug2020+Full.pdf; Oversight of the Trump Administration's Response to the COVID-19 Pandemic: Hearing Before the H. Comm. on Energy & Com., 116th Cong. 19–21 (2020) (statement of Robert R. Redfield, Director, Centers for Disease Control and Prevention); Lizzie Wade, COVID-19 Data on Native Americans Is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020), https://www.science.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted.
4 Stephen L. Pevar, The Rights of Indians and Tribes 56 (4th ed. 2012); see also Sahir Doshi et al., The COVID-19 Response in Indian Country, Ctr. for Am. Progress (June 18, 2020), https://www.americanprogress.org/issues/green/reports/2020/06/18/486480/covid-19-response-indian-country/.
5 See Matthew L. M. Fletcher, Federal Indian Law 3–7 (2016).
6 See Memorandum on Government-to-Government Relations with Native American Tribal Governments, 30 Weekly Comp. Pres. Doc. 936 (Apr. 29, 1994).
7 Urban Indian organizations are provided opportunities to confer with the federal agencies on various issues. See, e.g., 25 U.S.C. § 1660d(b); 38 U.S.C. § 547(f)(5); 25 U.S.C.A. § 5703(b)(2). Conferring is defined differently than formal government-to-government consultation, 25 U.S.C. § 1660d(a), and is outside the scope of this article.
8 See Native American vs. Indian, Indian Country Today (Sept. 13, 2018), https://indiancountrytoday.com/archive/native-american-vs-indian; Tribal Nations and the United States: An Introduction, Nat’l Cong. Am. Indians 24 (Feb. 2020), https://www.ncai.org/tribalnations/introduction/Indian_Country_101_Updated_February_2019.pdf.
9 Pevar, supra note 4, at 3.
10 Id. at 81.
11 Aila Hoss, A Framework for Tribal Public Health Law, 20 Nev. L.J. 113, 119–20 (2019).
12 See Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States 39–42, 46 (2014).
13 Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 86 Fed. Reg. 7554 (Jan. 29, 2021).
14 See Federal and State Recognized Tribes, Nat’l Conf. State Legislatures, http://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx (Mar. 2020).
15 Fletcher, supra note 5, at 3.
16 Pevar, supra note 4, at 81.
17 See Williams v. Lee, 358 U.S. 217, 218–19 (1959).
18 See Felix S. Cohen, Cohen’s Handbook of Federal Indian Law §§ 4.01, 4.07 (Nell Jessup Newton et al. eds., 2012) [hereinafter Cohen’s Handbook].
19 Wallace Coffey & Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 Stan. L. & Pol’y Rev. 191, 196 (2001).
20 Ex parte Kan-gi-Shun-ca, 109 U.S. 556, 561–62 (1883); United States v. Kagama, 118 U.S. 375, 375, 383–84 (1886).
21 See, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978); Montana v. United States, 450 U.S. 544, 556 (1981); Curtis Act, Pub. L. No. 55-517, 30 Stat. 495 (1898).
22 See Civilization Fund Act, Pub. L. No. 15-85, 3 Stat. 516b (1819); Dunbar-Ortiz, supra note 12, at 151, 153.
23 See, e.g., Courts of Indian Offense and Law and Order Code, 25 C.F.R. § 11; Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–43 (1988); Felix S. Cohen et al., Cohen’s Handbook of Federal Indian Law § 1.04 (Nell Jessup Newton et al. eds., 4th rev. ed. 2005).
24 See United States v. Mitchell, 463 U.S. 206, 224, 228 (1980); Menominee v. United States, 391 U.S. 404, 406 (1968); Passamaquoddy v. Morton, 528 F.2d 370, 379 (1st Cir. 1975); Seminole Nation v. United States, 316 U.S. 286, 315–16 (1942).
25 Frequently Asked Questions, Bureau Indian Affs., U.S. Dep’t Interior, https://www.bia.gov/frequently-asked-questions (last visited Sept. 10, 2021); Seminole Nation, 316 U.S. at 296–97 (“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust.”).
26 Cohen’s Handbook, supra note 18, at § 22.04 [ 2 ].
27 See, e.g., Snyder Act, 25 U.S.C. § 13; Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203 (1975) (codified as amended at 25 C.F.R. § 900); Indian Health Care Improvement Act, Pub. L. No. 94-437, 90 Stat. 1400 (1976) (codified at 25 U.S.C. § 1601).
28 U.S. Comm’n on C.R., Broken Promises: Continuing Federal Funding Shortfall for Native Americans 65–66, 209 (2018). “Funding for the [Indian Health Service] and Native American health care is inequitable and unequal.” Id. at 7.
29 See Hoss & Tanana, supra note 3, at 77–80.
30 See Memorandum on Government-to-Government Relations with Native American Tribal Governments, supra note 6.
31 See Tribal Engagement & Consultation, Bureau Safety & Env’t Enf't, https://www.bsee.gov/about-bsee/tribal-engagement-consultation (last visited Nov. 25, 2021); U.S. Dep’t of Agric., Forest Service, FS-1043, Forest Service Research and Development Tribal Engagement Roadmap 17 (2015).
32 Pevar, supra note 4, at 40.
33 See generally id. at 55–79.
34 See U.S. Comm’n on C.R., supra note 28, at 1.
35 Pevar, supra note 4, at 40–41.
36 Id. at 40.
37 See United Nations Declaration on the Rights of Indigenous Peoples, United Nations, https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html (last visited Sept. 10, 2021).
38 See Indigenous Peoples at the United Nations, United Nations, https://www.un.org/development/desa/indigenouspeoples/about-us.html (last visited Sept. 10, 2021).
39 See United Nations, supra note 37.
40 See G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, at 10, 15, 17, 19, 28, 29, 30, 32, 36, 38 (Sept. 13, 2007) [hereinafter UNDRIP].
41 Id. at 19.
42 Id.
43 Carla F. Fredericks, Operationalizing Free, Prior, and Informed Consent, 80 Alb. L. Rev. 429, 440 (2017).
44 Id.
45 UN-REDD Programme, Guidelines on Free, Prior and Informed Consent 18–19 (2013), https://www.uncclearn.org/wp-content/uploads/library/un-redd05.pdf.
46 Id. at 19, 24–25.
47 S. James Anaya, International Human Rights and Indigenous Peoples 98–104 (2009).
48 U.S. Dep’t of State, Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples 1 (Jan. 12, 2011), https://2009-2017.state.gov/documents/organization/184099.pdf.
49 Press Release, General Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights for All, Says President, U.N. Press Release GA/10612 (Sept. 13, 2007); see U.S. Dep’t of State, supra note 48.
50 U.S. Dep’t of State, supra note 48, at 5.
51 Robert J. Miller, Consultation or Consent: The United States' Duty to Confer with American Indian Governments, 91 N.D. L. Rev. 37, 37 (2015).
52 See, e.g., Alana K. Bevan, The Fundamental Inadequacy of Tribe-Agency Consultation on Major Federal Infrastructure Projects, 6 U. Pa. J.L. & Pub. Affs. 561 (2021); Elizabeth Kronk Warner et al., Changing Consultation, 54 U.C. Davis L. Rev. 1127 (2020); Fredericks, supra note 43, at 429; David E. Wilkins & Hank Adams, Nothing Less Than Consent: Consultation and the Diminishment of Indigenous Rights, Indian Country Today (Apr. 3, 2018) (updated Apr. 8, 2019), https://indiancountrytoday.com/opinion/nothing-less-than-consent-consultation-and-the-diminishment-of-indigenous-rights.
53 Infra Table 1.
54 See Exec. Order No. 12,875, 3 C.F.R. § 100 (1994); Memorandum on Government-to-Government Relations with Native American Tribal Governments, supra note 6.
55 Memorandum on Government-to-Government Relations with Native American Tribal Governments, supra note 6.
56 See Exec. Order No. 13,084, 3 C.F.R § 100 (1998); Exec. Order No. 13,175, 3 C.F.R. § 100 (2001); Rebecca Hersher, Hope and Skepticism as Biden Promises to Address Environmental Racism, NPR (Jan. 29, 2021), https://www.npr.org/2021/01/29/956012329/hope-and-skepticism-as-biden-promises-to-address-environmental-racism.
57 Exec. Order No. 13,084, 3 C.F.R § 100 (1998).
58 Exec. Order No. 13,175, 3 C.F.R. § 100 (2001).
59 Id.
60 Id.
61 Id.
62 Memorandum on Government-to-Government Relationship with Tribal Governments, 40 Weekly Comp. Pres. Doc. 2106 (Sept. 24, 2004); Tribal Consultation and Strengthening Nation-to-Nation Relationships, 2021 Daily Comp. Pres. Doc. 91 (Jan. 26, 2021); Memorandum on Tribal Consultation, 2009 Daily Comp. Pres. Doc. 887 (Nov. 5, 2009).
63 See Compilation of Presidential Documents, U.S. Gov’t Publ’g Off., https://www.govinfo.gov/app/collection/cpd/2016/01 (last visited Nov. 26, 2021). See generally Andrew Westney, Biden Returns to Obama Standards for Tribal Consultation, Law360 (Jan. 27, 2021), https://www-law360-com.ezproxy.neu.edu/articles/1349125/biden-returns-to-obama-standards-for-tribal-consultation.
64 See U.S. Dep’t of Health & Hum. Servs., Tribal Consultation Policy 1–2, 6–7, 13, 15 (2010), https://www.hhs.gov/sites/default/files/iea/tribal/tribalconsultation/hhs-consultation-policy.pdf; Ctrs. for Disease Control & Prevention, CDC/ATSDR Tribal Consultation Policy 2–6 (2013), https://www.cdc.gov/tribal/documents/tac/2014/CDCATSDR_Tribal_Consultation_Policy.pdf [hereinafter CDC/ATSDR Tribal Consultation Policy]; Tribal Consultation Policy, Indian Health Serv. (Jan. 18, 2006), https://www.ihs.gov/IHM/circulars/2006/tribal-consultation-policy/.
65 See, e.g., Tribal Consultations Sessions and Tribal Advisory Committee Meetings, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/tribal/consultation-support/tribal-consultation/sessions.html (Apr. 5, 2021).
66 See, e.g., id.
73 See Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 3001–02 (1990).
74 43 C.F.R. § 10.1(b) (1995).
75 See 25 U.S.C. §§ 3002, 3003(b)(1)(A) (1990), 3005.
76 25 U.S.C. § 3013 (1990).
77 40 C.F.R. § 1501.2 (2021).
78 Tribal Consultation, U.S. Gen. Servs. Admin., https://www.gsa.gov/resources-for/native-american-tribes/tribal-consultation (Mar. 29, 2018).
79 See, e.g., RESPECT Act, H.R. 2689, 115th Cong. (2017); Indigenous Peoples Legislative Hearing: Hearing on H.R. 375, H.R. 312 and RESPECT Act Before the Subcomm. for Indigenous Peoples of the U.S. of the H. Comm. on Nat. Res., 116th Cong. (2019); Hearing on Tribal-Related Legislation Including RESPECT Act and Stop Act: Hearing on H.R. 2930, H.R. 438 and RESPECT ACT Before the Subcomm. for Indigenous Peoples of the U.S. of the H. Comm. on Nat. Res., 117th Cong. (2021); RESPECT Act, H.R. 3587, 117th Cong. (2021).
80 25 U.S.C. §§ 1601–85.
81 25 U.S.C. § 1602(5).
82 Id.
83 Linda Jellum, Mastering Legislation, Regulation and Statutory Interpretation 218 (3d ed. 2020).
84 See, e.g., 25 U.S.C. §§ 1631(b)(1), 1621y(b), 1621c(a); see also 25 C.F.R. § 900.3(6) (2021) (regarding constulation for IHS budgets).
85 25 U.S.C. § 1631(b)(1).
86 Yankton Sioux Tribe v. U.S. Dep't of Health & Hum. Servs., 869 F. Supp. 760, 765 (D.S.D. 1994).
87 Yankton Sioux Tribe v. U.S. Dep't of Health & Hum. Servs., 533 F.3d 634, 638 (8th Cir. 2008).
88 For example, 25 U.S.C. § 1631(a) states that constulation is required by the Secretary of Health and Human Services, acting through Indian Health Service. 25 U.S.C. § 1603(17)–(18).
89 Gabriel S. Galanda, Advancing the State-Tribal Consultation Mandate, Indian Country Today (Oct. 7, 2012), https://indiancountrytoday.com/archive/advancing-the-state-tribal-consultation-mandate.
90 See, e.g., Or. Rev. Stat. §§ 182.164(3), 182.168 (2019); N.M. Stat. Ann. §§ 11-18-3, 11-18-5 (2021); Wash. Rev. Code Ann. § 43.376.020(1) (West 2021); Centennial Accord, Governor’s Off. Indian Affs., https://goia.wa.gov/relations/centennial-accord (last visited Sept. 14, 2021).
91 Or. Rev. Stat. § 182.164(3) (2019).
92 Id. at § 182.168.
93 Id.
94 N.M. Stat. Ann. § 11-18-3 (2021).
95 Id. at § 11-18-5.
96 Collaboration and Communication Policy, N.M. Dep’t Health, State-Tribal Consultation (2009), https://www.nmhealth.org/publication/view/policy/847/.
97 Centennial Accord, supra note 90.
98 Id.
99 See Martha Prothro, Preliminary Report: Challenges to Relations Between the State of Washington and the Washington Tribes, Ross & Assocs. Env’t Consulting (1999), https://goia.wa.gov/sites/default/files/public/gov-to-gov/millennim/rpt0928d.pdf; Institutionalizing the Government-to-Government Relationship in Preparation for the New Millennium, Governor’s Off. Indian Affs., https://goia.wa.gov/relations/millennium-agreement/agreement (last visited Sept. 14, 2021) (“Developing a consultation process, protocols and action plans that will move us forward on the Centennial Accord's promise that, ‘The parties will continue to strive for complete institutionalization of the government-to-government relationship by seeking an accord among all the tribes and all elements of state government.’”).
100 Prothro, supra note 99, at 4–5.
101 Centennial Accord, supra note 90.
102 Wash. Rev. Code Ann. § 43.376.020(1) (West 2021).
103 Id. at § 43.376.010(2).
104 Id. at § 41.05.006(2).
105 Consultation and Meetings, Wash. State Health Care Auth., https://www.hca.wa.gov/about-hca/tribal-affairs/consultations-and-meetings (last visited Aug. 31, 2021).
106 See Fawn Sharp & Matthew Randazzo V, Washington State Tribal Coalition Passes Unprecedented Climate Change Bill, Puts Consent Instead of Consultation into Law, Indianz.com (May 21, 2021), https://www.indianz.com/News/2021/05/21/fawn-sharp-tribal-consent-becomes-the-law-in-washington-state/; Rebecca Nagle (@rebeccanagle), Twitter (May 21, 2021), https://twitter.com/rebeccanagle/status/1395864416235687943.
107 Gabe Galanda (@NDNlawyer), Twitter (May 27, 2021), https://twitter.com/NDNlawyer/status/1397976559143641089.
108 La. Admin. Code tit. 50, § 105(A) (West 2021).
109 Cal. Health & Safety Code § 102905(a) (West 2019).
110 Scott Erickson et al., Data Genocide of American Indians and Alaska Natives in COVID-19 Data, Urb. Indian Health Inst. (Feb. 15, 2021), https://www.uihi.org/download/data-genocide-of-american-indians-and-alaska-natives-a-report-card-grading-u-s-states-quality-of-covid-19-data-and-their-effectiveness-in-tracking-it-for-american-indian-and-alaska-native-p/?wpdmdl=17709&refresh=61a131dd5d9c41637954013 (providing an analysis of state collection and analysis of state COVID-19 racial data); Tribal Epidemiology Ctrs., Best Practices in American Indian & Alaska Native Public Health 124–37 (2013), https://itcaonline.com/wp-content/uploads/2014/03/TEC_Best_Practices_Book_2013.pdf (describing challenges to securing public health data on American Indians and Alaska Natives).
111 Cal. Health & Safety Code § 102905(b) (West 2019).
112 See Consult, Merriam-Webster, https://www.merriam-webster.com/dictionary/consult (Sept. 9, 2021).
113 Idaho Code Ann. § 39-7104(1)(d) (West 2021).
114 N.D. Admin. Code 75-09.1-10-02(5)(c) (2021).
115 Id.
116 Id.
117 See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 5006, 123 Stat. 115, 496–512; National Health Care Workforce Commission, 42 U.S.C. § 294q(e)(1); State Tribal Relations on HealthCare, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/Outreach-and-Education/American-Indian-Alaska-Native/AIAN/redirect-StateTribal-RelationsonHealthcare (last visited Sept. 12, 2021).
118 American Recovery and Reinvestment Act § 5006(e)(2); 42 U.S.C. § 1396(a)(72) (2012); 42 C.F.R. § 431.408(b) (2021).
119 Robert Onders, Medicaid: Can Federal Responsibilities, State Authorities, and Tribal Sovereignty Be Reconciled?, 15 Wyo. L. Rev. 165, 181 (2015).
120 Felicia Fonseca, Arizona Is Only State Where Tribes Avoid Medicaid Work Rules, AP News (Jan. 18, 2009), https://apnews.com/article/north-america-ut-state-wire-ar-state-wire-az-state-wire-native-americans-fc5cfaea775542a7ad761b1b98183ec2.
121 Program History, Medicaid.gov, https://www.medicaid.gov/about-us/program-history/index.html (last visited Sept. 12, 2021).
122 See id.; Policy Basics — Introduction to Medicaid, Ctr. on Budget & Pol’y Priorities 1 (Apr. 14, 2020), https://www.cbpp.org/sites/default/files/atoms/files/policybasics-medicaid_0.pdf.
123 See Social Security Act, 42 U.S.C. § 1315(a)(1).
124 About Section 1115 Demonstrations, Medicaid.gov, https://www.medicaid.gov/medicaid/section-1115-demonstrations/about-section-1115-demonstrations/index.html (last visited Sept. 12, 2021).
125 Id.
126 See Work Requirement Waivers: Approved and Pending as of April 16, 2021, Kaiser Fam. Found., https://www.kff.org/medicaid/issue-brief/medicaid-waiver-tracker-approved-and-pending-section-1115-waivers-by-state/#Table2 (last visited Apr. 16, 2021).
127 See, e.g., Leighton Ku & Erin Brantley, Medicaid Work Requirements: Who’s At Risk?, Health Affs. Blog (Apr. 12, 2017), https://www.healthaffairs.org/do/10.1377/hblog20170412.059575/full/; MaryBeth Musumeci & Julia Zur, Medicaid Enrollees and Work Requirements: Lessons from the TANF Experience, Kaiser Fam. Found. (Aug. 18, 2017), https://www.kff.org/medicaid/issue-brief/medicaid-enrollees-and-work-requirements-lessons-from-the-tanf-experience/.
128 Benjamin D. Sommers et al., Medicaid Work Requirements — Results from the First Year in Arkansas, New Eng. J. Med. (Special Report) (2019).
129 Medicaid Work Requirements Will Not Work in Indian Country, Nat’l Indian Health Bd. (2017), https://www.nihb.org/docs/09182017/Medicaid%20Work%20Requirements%20One%20pager.pdf.
130 Fonseca, supra note 120.
131 CMS Approves Arizona’s Medicaid Community Engagement Demonstration Amendment, Ctrs. for Medicare & Medicaid Servs. (Jan. 18, 2019), https://www.cms.gov/newsroom/press-releases/cms-approves-arizonas-medicaid-community-engagement-demonstration-amendment.
132 See, e.g., Pevar, supra note 4, at 40–41; Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21, 73–74 (1999); Fredericks, supra note 43, at 469–70; Warner et al., supra note 52, at 1133; Miller, supra note 51, at 64–67.
133 Exec. Order No. 13,175, 3 C.F.R. § 100 (2001).
134 Id.
135 See 5 U.S.C. § 551(13) (defining agency action as including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”); Exec. Order No. 13,175, 3 C.F.R. § 100 (2001).
136 See, e.g., Department of Justice Plan to Develop a Tribal Consultation and Coordination Policy Implementing Executive Order 13175, U.S. Dep’t Just. 2 (Jan. 27, 2010), https://www.justice.gov/sites/default/files/opa/legacy/2010/02/12/exec13175-consultation-policy.pdf. The Department of Justice plan to develop a consultation policy acknowledges a need to determine which actions or events would trigger consultation. Id.
137 CDC/ATSDR Tribal Consultation Policy, supra note 64, at 4.
138 FDA Tribal Consultation Policy, U.S. Dep’t Health & Hum. Servs. 8 (2016), https://www.fda.gov/media/102299/download.
139 See Exec. Order No. 13,175, 65 Fed. Reg. at 67,249; CDC/ATSDR Tribal Consultation Policy, supra note 64, at 8; FDA Tribal Consultation Policy, supra note 138, at 2–3.
140 Exec. Order No. 13,175, 3 C.F.R. § 100 (2001).
141 Pevar, supra note 4, at 41.
142 See, e.g., CDC/ATSDR Tribal Advisory Committee Meeting and 18th Biannual Tribal Consultation Session, Ctrs. for Disease Control & Prevention 2–5 (Feb. 5-6, 2019), https://www.cdc.gov/tribal/documents/tac/2019/TAC-Winter-2019-Meeting-Minutes-508.pdf (CDC Director Robert Redfield not in attendance); CDC/ATSDR Tribal Advisory Committee Meeting and 17th Biannual Tribal Consultation Session, Ctrs. for Disease Control & Prevention 48–49 (Aug. 8, 2017), https://www.cdc.gov/tribal/documents/consultation/Summer-2017-Full-Meeting-Summary.pdf (CDC Director Brenda Fitzgerald not in attendance).
143 See, e.g., CDC/ATSDR Tribal Advisory Committee Meeting and 18th Biannual Tribal Consultation Session, supra note 142, at 2.
144 See Tribal Consultation Policy, supra note 64.
145 See, e.g., Biden Fails in Promise to Consult with Indigenous Tribes, Indian Country Today (Mar. 2, 2021), https://indiancountrytoday.com/the-press-pool/biden-fails-in-promise-to-consult-with-indigenous-tribes; Acee Agoyo, Tribal Consultation Policies Still Lacking Amid Challenges of Trump Era, Indianz.com (Apr. 23, 2019), https://www.indianz.com/News/2019/04/23/tribal-consultation-policies-still-lacki.asp.
146 Slockish v. U.S. Fed. Highway Admin., No. 3:08-CV-1169-ST, 2012 WL 3637465, at ∗9 (D. Or. June 19, 2012); see, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs., 205 F. Supp. 3d 4, 15 (D.D.C. 2016).
147 Admin. for Child. & Fams., ACF Tribal Consultation June 11, 2020, YouTube (July 22, 2020), https://www.youtube.com/watch?v=HKD2Jo6aIz8; see Tribal Consultation and Urban Confer, Indian Health Serv., https://www.ihs.gov/dbh/consultationandconfer/ (last visited Sept. 12, 2021).
148 David H. Getches et al., Cases and Materials on Federal Indian Law 1 (6th ed. 2011).
149 Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship, 66 Notre Dame L. Rev. 1461, 1481 (1991).
150 See Walter R. Echo-Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided 4 (2010) (“Only rarely in US history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as indigenous peoples. The law has more often been employed as a sword to harm Native peoples by stripping away their human rights, appropriating their property, stamping out their cultures, and, finally, to provide legal justification for federal policies that have, at times, resorted to genocide and ethnocide.”).
151 Id.
152 Peggy Halpern, U.S. Dep’t of Health & Hum. Servs., Obesity and American Indians/Alaska Natives xi (2007), https://aspe.hhs.gov/sites/default/files/private/pdf/75036/report.pdf.
153 See Joseph P. Gone et al., The Impact of Historical Trauma on Health Outcomes for Indigenous Populations in the USA and Canada: A Systematic Review, 74 Am. Psych. 20, 26–29 (2019).
154 Id.; Maria Yellow Horse Brave Heart, The Historical Trauma Response Among Natives and Its Relationship with Substance Abuse: A Lakota Illustration, 35 J. Psychoactive Drugs 7, 7–11 (2003). See generally Monica C. Skewes & Arthur W. Blume, Understanding the Link Between Racial Trauma and Substance Use Among American Indians, 74 Am. Psych. 88 (2019).
155 See generally Aila Hoss, Federal Indian Law Is a Structural Determinant of Health, 47 J. L., Med., & Ethics 34 (2019).
156 2009 H1N1 Flu: Resource Guide for American Indian/Alaska Native Tribal Governments, Ctrs. for Disease Control & Prevention (Nov. 2, 2009), https://www.cdc.gov/h1n1flu/statelocal.
157 Lou Schmitz & Heather Erb, Am. Indian Health Council, Keynote Address at the 3d Annual Tribal Public Health Emergency Preparedness Conference: Partnering in a Climate of Change (May 23, 2019).
158 See Tahir & Cancryn, supra note 2; Hoss, supra note 2.
159 Shawna Chen & Russell Contreras, Native American Tribes Lead the Way on Coronavirus Vaccinations, Axios (Mar. 11, 2021), https://www.axios.com/covid-vaccine-native-americans-internet-access-6f1ebc15-987f-4c2a-bf1f-7dcffce7ce8f.html.
160 Budget, Grants, and Funding, Ctrs. for Disease Control & Prevention (Sept. 17, 2019), https://www.cdc.gov/tribal/consultation-support/funding/index.html.
161 See, e.g., Jonathan Purtle, Felon Disenfranchisement in the United States: A Health Equity Perspective, 103 Am. J. Pub. Health 632, 632–35 (2013).
162 Pevar, supra note 4, at 40–41.
163 Miller, supra note 51, at 97.
164 Id.
165 For a survey of consultation-related litigation, see Hearing on H.R. 2930, H.R. 438, and RESPECT Act Before the Subcomm. for Indigenous Peoples of the U.S. of the H. Comm. on Nat. Res., 117th Cong. 16–25 (2021) (statement of Matthew L.M. Fletcher, Director and Professor of Law, Indigenous Law & Policy Center, Michigan State University College of Law).
166 Warner et al., supra note 52, at 1181–82.
167 American Bar Assoc., On-Demand Webinar on Defending Tribal Sovereignty: The Ongoing Battle Over "Meaningful Consultation" and Self-Governance Over Natural and Cultural Resources (Dec. 31, 2020).
168 See Shawnee Tribe v. Mnuchin, 984 F.3d 94, 96–97 (D.C. Cir. 2021); Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2442 (2021).
169 See Robert B. Cash, Presidential Power: Use and Enforcement of Executive Orders, 39 Notre Dame L. Rev. 44, 51 (1963).