Indian Tribes and Agency Policy: When the Trust Doctrine Trumps the APA

Abstract

In some instances, the Indian trust doctrine attaches to federal agency policy documents and renders them judicially enforceable, a situation this paper terms the guidance principle. This Principle is unique because it creates a narrow exception to the general exemption of nonlegislative rules from judicial enforcement under the Administrative Procedure Act. Therefore, under the Principle, federal common law — the Indian trust doctrine — sometimes trumps the APA. This paper examines the binding guidance principle's jurisprudence, and explores its origins, which courts have applied primarily to tribal consultation policies thus far. It then explains how and why the Principle may be ripe for expansion, as well as how it may prove a useful tool for Indian tribes to further their litigation goals outside of the consultation context. Accordingly, this paper explains how tribes might use the Principle to protect themselves from adverse agency action by holding agencies responsible for their guidance documents in court.