(iPoster) Notice and Comment, Negotiated Rulemaking, and Tribal Consultation

• In Event: Poster Session: Foundations of Political Theory 2 (Historical) & Federalism and Intergovernmental Relations
  In Poster Session: Poster Session: Federalism and Intergovernmental Relations

Abstract

Within the byzantine system of federal agencies and regulations the processes through which the US federal government engages Indigenous nations is poorly understood, lays uneasily within broader federal system, and rests upon a myriad network of Constitution law, federal statute, and agency policies. This paper engages in a legal analysis of the Tribal-Federal consultation process to demonstrate how Tribal consultation is distinct from either the ‘notice and comment’ or the negotiated rulemaking process the federal agencies engage in when drafting or implementing regulations and federal policy. Federalism scholars—when they consider the Tribal consultation process at all—often treat the Tribal-Federal consultation process as a bastardized form of negotiated rulemaking. This paper demonstrates that while Tribal consultation has increasingly become a standard part of federal agency regulatory practice, it is not appropriate in terms of Constitutional or administrative law to consider Tribal consultation as merely a strange form of either notice and comment or the negotiated rulemaking because the Tribal consultation process’ driving legal doctrine is Tribal sovereignty. While US law and agency practice has increasingly attempted to bring Indigenous nations into the broader federal system since the passage of the Indian Reorganization Act of 1938, Indigenous nations still sit as the constitutive outside to sprawling network of US federal regulations and administrative process due to the legal doctrine of Tribal sovereignty. This paper explores how Tribal consultation has increasingly become standardized across the myriad federal agencies, and yet still unsettles the federal system.

Author

• Dani Delaney, Queen's University