Why It Matters
Whether the federal government's obligations to consult with tribal nations before taking action are enforceable, consistent, or adequately funded is the topic of a new Congressional Research Service (CRS) report titled "Federal-Tribal Consultation: Background and Issues for Congress".
Congress has never established a government-wide tribal consultation mandate, leaving the framework dependent on a patchwork of statutes, executive orders, and agency-level policies that vary widely in scope and definition. Courts have generally declined to enforce presidential directives on consultation, with one court stating that "the plain language of Executive Order 13175 does not provide any right enforceable in this judicial action alleged by the Tribe."
The Trump administration has not rescinded prior presidential directives related to tribal consultation, meaning Executive Order 13175 and Biden-era presidential memoranda technically remain in effect, but the Office of Management and Budget issued Memorandum M-25-36, which directs agencies to treat deregulatory actions as "presumptively not triggering" consultation requirements and instructs that any warranted consultations "should take place as part of the normal opportunity for stakeholder participation." Many Tribes and tribal advocates argue that framing consultation as equivalent to general public stakeholder engagement undermines the government-to-government relationship and the federal trust responsibility.
The Big Picture
The federal trust responsibility, rooted in treaties, acts of Congress, and court decisions, forms the legal and moral foundation for tribal consultation, with courts describing the United States as having "charged itself with moral obligations of the highest responsibility and trust" toward Tribes.
The report describes consultation as existing on a spectrum ranging from basic communication to consensus reached through negotiation to Free, Prior, and Informed Consent, an international standard under which Tribes give or withhold agreement. The United States has not formally adopted that standard, and the State Department has interpreted it to mean "a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders."
Agency practices remain inconsistent across the federal government. The Department of the Interior, the U.S. Department of Agriculture, the U.S. Army Corps of Engineers, and the National Oceanic and Atmospheric Administration have each developed their own consultation policies with varying standards, timelines, and definitions, and independent regulatory commissions, including the Federal Communications Commission, the Federal Energy Regulatory Commission, and the Nuclear Regulatory Commission, are not subject to Executive Order 13175 at all.
A 2026 Government Accountability Office report found that limited agency and tribal funding impeded federal-tribal collaboration, and small or remote Tribes may lack the staff and technical expertise to engage meaningfully. Separately, the Advisory Council on Historic Preservation voted on July 24 to advance a proposed rulemaking that would give federal agencies more discretion over whether and when consultation under the National Historic Preservation Act occurs.
The Bottom Line
The CRS report frames a clear decision point for Congress: maintain the current fragmented system, expand consultation requirements, or curtail them. Some members of Congress have argued that broad consultation requirements cause "catastrophic" harm by increasing permitting timelines and affecting activities such as grazing and energy production, while some Tribes and Indigenous entities have called for a government-wide statutory standard. Whether Congress acts, and in which direction, will determine whether Tribes retain a meaningful role in federal decisionmaking or see that role further narrowed through administrative action alone.
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