Tribal Advisory Committees: Tools for Fulfilling the Federal Trust Obligation to American Indian/Alaska Native People

Abstract

Tribal advisory committees have the potential to be an effective mechanism to facilitate Tribal consultation and urban confer as part of the government-togovernment relationship between Tribes and the federal government. This paper analyzes the Unfunded Mandated Reform Act (UMRA) intergovernmental exemption to the Federal Advisory Committee Act (FACA) as applied to Tribal advisory committees formed to advise federal agencies on policy that affects American Indian and Alaska Native (AI/AN) people. As such, this paper suggests that both Congress and federal agencies should implement Tribal advisory committees more broadly as an important communication tool in the fulfillment of the federal trust obligation to AI/AN people. The federal duty to engage in Tribal consultation and urban confer stems from its trust obligation generally to AI/AN people both on and off the reservation. Tribal consultation is also mandated by statute, regulations, executive order, and case law. This paper illustrates the role Tribal advisory committees can play in facilitating effective Tribal consultation and urban confer. This paper asserts that Washington representative organizations, both for Tribes and for urban Indian organizations, should be included on Tribal advisory committees handling relevant issues. Further, this paper argues that the membership of a Washington representative organization on a Tribal advisory committee does not violate the UMRA intergovernmental exemption to FACA when it shares or is designated to represent the interests of Tribes.