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Fall Of Fracking Rule: When Agencies Don’t Consult Tribes

President Barack Obama in November 2009 pledged his administration would consult on a government-to-government basis with Indian tribes over federal laws and policies concerning them. “History has shown,” he observed, “that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic consequences.”[1] The Obama administration has since expanded this commitment by insisting that Washington, D.C.’s consultation with tribes be meaningful and collaborative, and that it occur regularly and consistently. President Obama vowed after his reelection: “Greater engagement and meaningful consultation with tribes is of paramount importance in developing any policies affecting tribal nations.”[2]

It didn’t take long for the Obama administration’s heightened commitment to tribal consultation to be put to the test. Result: the invalidation of one of the administration’s most controversial new environmental regulations due, in part, to federal regulators’ apparent failure to consult meaningfully with tribes on a government-to-government basis before the new rules were proposed and released to the general public.

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