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Advancing the State-Tribal Consultation Mandate

This summer, in the face of an impending private land sale of Pe’Sla, a Lakota/Dakota/Nakota Indian sacred site in the Black Hills, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya, directed that authorities in South Dakota “engage in a process of consultation” with the Great Sioux Nation to consider and address their views and concerns. While the federal Indian consultation right is now entrenched in federal and international law, the Special Rapporteur’s pronouncement of a state-tribal consultation mandate is profound—especially insofar as it concerns the American indigenous “right to continue to maintain their traditional cultural and ceremonial practices” on off-reservation lands.

The Special Rapporteur’s proclamation follows a Resolution passed in 2011 by the National Congress of American Indians, that “states and local governments [must] meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.” As the Special Rapporteur suggests regarding Pe’Sla, a matter of tribal implication is not confined to Indian reservation lands.

States’ actions or decision-making that violate tribal rights are nothing new; from birth, America’s youngest sovereigns have challenged and attacked Indian tribes. What is new, however, is the possibility of tribes suing states and municipalities to enjoin state or local decision-making that adversely affects tribal interests, for lack of tribal consultation.

Washington State provides a good example of that possibility. In 1989, the state of Washington and its neighboring tribes signed the Centennial Accord. The Accord commemorated the 100th anniversary of Washington’s statehood, paying homage to Washington’s first sovereigns: the Tribes. Founded on the government-to-government relationship, the Accord “respects the sovereign status of the parties, enhances and improves communications between them, and facilitates the resolution of issues.” The Accord provides: “The parties recognize that their relationship will successfully address issues of mutual concern when communication is clear, direct and between persons responsible for addressing the concern.” In short, the state recognized the need for meaningful tribal consultation regarding state decisions of tribal implication.

Ten years later, Washington State and the Tribes signed the Millennium Agreement “in the spirit of understanding and mutual respect of the 1989 Centennial Accord and the government-to-government relationship established in that Accord,” and desiring to strengthen their relationships and “cooperation on issues of mutual concern.” The sovereigns pledged continued cooperation through the development of “enduring channels of communication,” “institutionaliz[ed] government-to-government processes that will promote timely and effective resolution of issues of mutual concern,” and a state-tribal “consultation process, protocols and action plan.”

Now years later, it must be appreciated that both of those Washington state-tribal pacts—and the state and tribal leader-visionaries who forged them—were far ahead of their time. In fact, the Accord preceded federal Executive Order 13175 by over a decade.

Washington State agencies have since promulgated regulations, policies, protocols and action plans that require consultation. For example, the Department of Revenue amended Washington Administrative Code § 458-20-192 in 2011, to codify “policies and objectives of the Centennial Accord and the Millennium Agreement” and require that the agency consult and collaborate with tribes on a government-to-government basis. In particular, the state’s taxing arm must “provide additional guidance regarding business activities engaged in by Indians and by nonmembers doing business with Indians.” With tribal tax exemption and abatement the lynchpin to Indian economic diversification, a state law requiring state agency tax consultation with tribes is an invaluable tool for Washington Indian Country. Local governments in Washington have also enacted laws that require tribal consultation, for example, with regard to shoreline land development.

State-tribal consultation laws like Washington’s Centennial Accord also exist in: Alaska—i.e., the Millennium Agreement; Oregon – Or. Rev. Stat §§ 182.162-168, titled “Relationship Between State Agencies and Indian Tribes”; New Mexico—N.M. Rev. Stat. § 11-18, the State-Tribal Collaboration Act; Michigan – the Intergovernmental Accord between Michigan Indian Tribes and the Governor Concerning Protection of Shared Water Resources; and Minnesota – an Executive Order on Indian Tribal Governments. County and city laws and inter-governmental agreements with tribes also require, or at least likely resulted from, meaningful tribal consultation.

Of course, the state-tribal consultation mandate is not an anomaly. In affirming tribal sovereign immunity from state suit over twenty years ago, the U.S. Supreme Court, in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991), encouraged states to consult and “enter into agreements with the tribes to adopt a mutually satisfactory regime” concerning issues of mutual concern. It is therefore no surprise that in the last two decades, state and local governments have negotiated hundreds of inter-local agreements with tribes, resolving various issues of state-tribal regulatory authority. What is new, however, is that a state’s tribal consultation obligations are now being actively employed to protect Indian sovereignty.

In 2005, for example, the Washington State Court of Appeals ruled that the state Department of Ecology had failed to consult with the Columbia River Intertribal Fish Commission (CRITFC) and its member tribes regarding private developers’ applications for surface water rights in the Columbia River. In 1998, Ecology sent letters to several entities, including CRTIFC, asking them to review the applications and to provide the agency with any information relating to fishing and any other existing rights that they had in the river. Ecology specifically asked CRITFC to review the applications and consult with the agency. But before CRITFIC could do so, Ecology approved the applications.

CRITFC members the Yakama Nation and Umatilla and Nez Perce Tribes appealed Ecology’s decision, and ultimately Washington’s appellate court ruled that the agency failed to properly consult with those tribes. Kennewick Public Hospital District v. Pollution Control Hearings Board (Wash. Ct. App. 2005). The state appeals court held that not only was the state’s consultation with CRITFIC lacking, but that Ecology must consult with those tribes individually.

Similarly, Washington’s appeals court has ruled that Island County violated its own land use laws by, i.e., failing to consult with the Swinomish Tribe to identify Indian archeological and burial sites on off-reservation, privately owned lands, before issuing development permits to non-Indian property owners. Swinomish Indian Tribal Community v. Island County (Wash. Ct. App. 1997).

These state court holdings fall in line with federal law that mandates meaningful tribal consultation, meaning that a state must pre-notify the tribe of its proposed action; meet with tribal decision-makers to explain the state’s reasoning and hear tribal feedback; and then allow the tribe needed time to formally support or reject that decision pursuant to tribal law and procedure. Lower Brule Sioux Tribe v. Deer (D.S.D. 1995).

The primary enforcement mechanism used to employ these state consultation provisions is also similar to that of federal law. Under Washington State’s Administrative Procedure Act, relief for persons aggrieved by a state’s action will be granted if the action is “willful and unreasoning, and taken without regard to the attending facts or circumstances.” ITT Rayonier, Inc. v. Dalman (Wash. 1993). This includes the failure to consult with a tribal government when required, as exemplified in the Kennewick-CRITFC case.

To be sure, state-tribal consultation and laws like the Centennial Accord are mechanisms to avoid litigation. But states and their little siblings too frequently still act like tribes’ deadliest enemies, in which case consultation can be a powerful defense weapon.

Indeed, tribes have a new sword to wield along with their time-honored shield in combat against states entities that threaten Indian sovereignty. The shield: tribal sovereign immunity. The sword: the state-tribal consultation mandate. Now tribal governments must forge and sharpen that sword nationwide through diplomacy, legislation, rulemaking—even litigation—as the Tribes have done in Washington State since 1989.

Gabriel S. Galanda is a lawyer with Galanda Broadman, PLLC, in Seattle, and a member of the Round Valley Indian Tribes.