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Matthew L.M. Fletcher

excerpted from: Matthew L.M. Fletcher, Tribal Consent, 8 Stanford Journal of Civil Rights & Civil Liberties 45 (April, 2012) (575 footnotes omitted)

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.

American Indian law scholar Rick Collins first theorized the utility of consent theory in American Indian law and policy in his important essay, Indian Consent to American Government. Professor Collins questioned whether Indian tribes ever consented to American government, and whether usual principles of consent theory applied to Indians. He noted that Indian treaties could have served as a proper vehicle for demonstrating consent, but so many of them involved substantial coercion of the tribal party. Collins concluded that while the United States often respected principles of consent with Indian tribes, violations of those consent principles have left some Indian tribes and individual Indians in oppressive conditions. Collins expressed dissatisfaction with strategies to eliminate these concerns about tribal consent such as the pursuit through the courts of true tribal independence due to the failures of such efforts in the past and poor likelihood of the success of those efforts in the future.

Professor Collins' paper was prescient in many ways, especially in his conclusion that [m]uch more tribal independence can be achieved within the existing system, by doing the hard work of building up tribal governments and improving tribal economies. But the ability of Indian tribes to engage in that developmental process, while succeeding in many ways, is significantly hampered by the continued lack of tribal consent in modern American Indian law and policy. Now is an excellent time to return to Professor Collins' analysis--more than 20 years have passed since his prescription. I argue in this Article that the fundamental question of tribal consent continues to haunt Indian affairs, and will continue to do so unless it is rectified.

Consider the following hypotheticals that frame the outer limits of this discussion of consent theory and federal Indian law:

A federally recognized Indian tribe executes a treaty with the President of the United States, later ratified by the Senate, reserving a homeland for the tribe and its members for all time. The treaty requires the express consent of three-fourths of the adult males of the tribe to amend the treaty. The government seeks such consent at a later time for purposes of acquiring the tribal land base, procures the consent through arguably fraudulent means, and Congress enacts legislation effectuating the sale.

A non-Indian driving on a dirt road in the west crosses into Indian Country without even knowing it, although there is a sign posted at the reservation border that states: YOU ARE NOW ENTERING INDIAN COUNTRY AND CONSENT TO THE JURISDICTION OF THE TRIBE. The tribe in question has enacted an ordinance that holds any person who enters the reservation willingly has impliedly consented to tribal regulatory and adjudicatory authority.

Both fact patterns involve issues of consent. Did the tribe consent to the sale of the land in the first case? According to the Supreme Court in Lone Wolf v. Hitchcock, it doesn't even matter because Congress has plenary authority as trustee of tribal property to sell Indian lands (even to itself) and remit the proceeds to the tribe (or to itself as guardian or trustee). Consent is irrelevant.

Did the nonmember consent to the tribe's jurisdiction by entering the reservation? What if he had seen the sign and still crossed into the reservation anyway? According to the Supreme Court in cases such as Atkinson Trading Co., Inc. v. Shirley, consent to tribal jurisdiction must be express, and is limited to the narrow subject areas of the express consent. Otherwise the tribe has no jurisdiction. Literal, express consent is highly relevant.

Tribal consent to federal statutes, regulations, and cases that decide matters critical to American Indian people and tribes long has been lacking. The nineteenth and twentieth century Supreme Court cases are replete with efforts by Indians and tribes to avoid the dictates of many of these laws and regulations that directly injured tribal interests, almost always to no avail. Congress legislated, the Executive branch acted, and the Supreme Court either declined to act or upheld the law and its enforcement. As recently as 1955, the Supreme Court has held that the taking of tribal property by federal agencies was a non-compensable taking.

Federal Indian law--the law that governs federal-state-tribal relations --has been dramatically altered in recent decades in part by the notion that non-Indians and non-tribal entities have not consented to assertions of tribal government authority over them. This lack of consent is meaningful because Indian tribes are not beholden to the dictates of the American Constitution (nor could they be), and so the nonmembers could be subject to governmental authority unfettered by individual constitutional rights. The problem has best been identified by Professor Alex Aleinikoff as a democratic deficit, wherein these nonmembers and nonmember-controlled entities have not participated in the tribal political process, and therefore should not be subject to tribal sovereign powers. On the Supreme Court, Justice Kennedy long has been a champion of consent theory in relation to tribal government power, dating back to his days on the Ninth Circuit.

All of this comes as the federal government slowly vacates many aspects of its on-the-ground governance, a process begun in the mid-1970s when Congress authorized Indian tribes to contract with the Bureau of Indian Affairs to administer on-reservation services. Indian tribes now are the primary government authorities in Indian Country, a political fact that should seem inevitable but has been a long, long time in coming. In an article describing an early version of the legislation that would become the Indian Self-Determination and Education Assistance Act, Bobo Dean wrote in the early 1970s that, for the first time, the consent of the governed would be a part of Indian affairs. Self-determination meant that Indian people would be governed by Indian people, a concept that the Supreme Court had recognized as a matter of federal common law in 1959, but had not quite reached Congress or the bureaucracy. So while tribal governments begin to develop and exercise their governance authority and competence, the nonmembers residing and working within Indian Country are largely free of tribal regulation.

Of course, observers who argue that it makes sense to decide federal common law cases with consent theory in mind (Professor Aleinikoff excepted ) fail to note the incredible irony of importing consent theory into federal Indian law. The irony comes on two levels. First, consent theory is of course a pure fiction, in that no one person has ever consented to the American federal government's authority except in symbolic or meaningless ways. Moreover, consent theory is not a favored part of modern American high political theory and has been subject to powerful and persuasive theoretical and practical attacks.

The second source of irony is perhaps even more fundamental and simple; Indian nations and Indian people literally have not consented to most of the vastly broad and deep assertions of federal and state government that modern policymakers and judges assume exists. Indian tribes were not invited to the constitutional convention, nor could they sign or ratify the Constitution. Indian people, with relatively few exceptions largely relating to land tenure, never consented to federal citizenship, and to this day could be the only persons the Fourteenth Amendment excludes from citizenship (the so-called Indians not taxed). Indians who asserted treaty rights, for example, typically had been considered uncivilized and therefore ineligible for citizenship. Indians who declined to abandon their tribal relations, for another example, were in the same category. It is further ironic that there is an established method for acquiring the factual consent of Indian tribes and individual Indians to government control through a treaty or other agreement, but the United States often does not take the time or effort to acquire the needed consent.

And yet Indian nations and individual Indians remain under the control and authority of federal and many state governments. Anyone with even a superficial knowledge of American political theory would have to shake their head at the irony of a group of people subject to the control of a government only through what could charitably be described as acquiescence, and less charitably as violent conquest. One key tenet of consent theory is that the lack of consent to government action in the context of conquest is mere tyranny. Tyrannical, totalitarian governance by the United States has been at the heart of American Indian affairs over the last two centuries.

To be sure, in numerous instances American Indian tribes have freely given their consent to American action, usually through some sort of treaty arrangement or federal-tribal agreement, typically codified in acts of Congress. But all too often, the federal government (along with the states) disregarded the limits of that consent to government action. In recent decades, however, Congress and the Executive branch have dramatically improved their recognition and respect of the limits of tribal consent to federal government action (with some equally dramatic negative action as well). Moreover, the last few presidential administrations have ordered federal agencies to consult with tribal governments before making significant policy choices affecting tribal interests. And yet, the Supreme Court's decisions in recent decades have replaced Congress and the federal bureaucracy as the leading federal policymaking entity in many aspects of Indian affairs. Many of the Court's decisions have enabled and actively encouraged state governments to oppose tribal sovereignty, putting tribes and states in a prisoner's dilemma game where states have all of the bargaining chips. In short, Justice Kennedy's vision of consent in Indian affairs only works one way, and hearkens back to 19th century and early 20th century Indian affairs policies of assimilation and destruction of tribal governments and sovereignties.

The first Part of this paper is a short history of the incorporation of Indian tribes into the American polity, largely without the consent of Indian tribes and Indian people. The second part moves beyond the discussion of the lack of tribal consent to federal and state governance, and how that lack of consent actually generated the legal and political justification for congressional (and federal) plenary power over Indian affairs. The third Part describes how express and literal consent has come to dominate federal common law on tribal authority over nonmembers. This Part explores the irony of introducing nonmembers in vast numbers into Indian Country without tribal consent, and then forcing tribal governments to acquire literal consent from those nonmembers in order to govern them. The lack of authority over nonconsenting nonmembers has led to sometimes devastating consequences for Indian people. The fourth, and last, Part argues for a theory of tribal consent. Unlike the vague and even fictional consent espoused by thinkers such as Justice Kennedy, and denigrated by critics who bemoan its limitations, tribal consent theory should be explored and integrated in federal Indian law. In fact, the United Nations Declaration of the Rights of Indigenous Peoples requires that states acquired the free and informed consent of indigenous governments and people before taking action detrimental to those peoples, giving rise to a kind of literal consent theory and practice desperately needed in American Indian affairs.