Tribal consultation is a formal, two-way, government-to-government dialogue between representatives of Tribal Nations and of the United States. It ensures that Tribal governments have opportunities to provide input and recommendations on policies that affect them on an ongoing basis. It also emphasizes trust, respect, and shared responsibility. Tribal consultation mandates are essential policy tools that help mitigate environmental and cultural injustices.
There are no federal laws that require states to consult with Tribal Nations. However, opinion on what Tribal consultation looks like is steadily changing. In 2022, an executive order was released demanding Uniform Standards for Tribal Consultation. Prior to the executive order, many states had begun collaborating with Tribal Nations to create formal Tribal consultation processes. Tribal consultation policies are tools that help Tribal Nations and states reach a consensus on matters that affect both governments. When Tribal consultation does not occur, Tribal Nations are left out of critical decision-making processes that can determine funding for essential programs or impact the well-being of their citizens. Tribal-State consultation is a good practice because it increases mutual respect and is more effective in program planning and implementation.
One of the fundamental building blocks of Indian Law today and, subsequently, of Tribal consultation is the unique relationship that the federal government, Tribal Nations, and states have. Tribal Nations are autonomous and sovereign. They are subject to federal authority but free from state control. Even so, many federal programs administered by state agencies and state-specific policies directly affect Tribal citizens. This includes topics like education policy, murdered and missing Indigenous peoples, Medicaid, the Indian Child Welfare Act, voting and redistricting, economic development, and so much more.
To read a more extensive list of policies that affect Indian Country, check out the 2023 State-Tribal Legislative Impacts Report.
Open communication has become more crucial as it sets up resources for generations to come. For example, the rise in federal funding due to the Inflation Reduction Act (IRA) requires cooperation between states and Tribes to figure out the most equitable way to spend funding. Although funding is available for Tribal Nations to apply for grants through the IRA separately, there are intersections where communication would be beneficial. For instance, many Tribal citizens live off reservations in Montana's more urban cities, or a smaller Tribe might be unable to apply for all grants. Still, state agencies could work in tandem with Tribal Nations to improve infrastructure for everyone.
Education is an example of a policy topic that shows how different policies can share overlapping responsibilities from various forms of government. Nationally, 93 percent of American Indian children attend public schools and make up 11 percent of the public school population in Montana. This means a large percentage of American Indian children are deeply affected by the policies in public schools. In addition, Article X in Montana's constitution establishes Indian Education for All, a policy that "encourages every Montanan in public schools to learn about the distinct and unique heritage of American Indians."
Furthermore, nearly 150 treaties between the U.S. and Tribal Nations have education provisions. Lastly, Federal policies like the Every Student Succeeds Act (ESSA) also show a vested interest in better supporting Native children in the public school system. Through policies, state and federal governments have shown formal commitments to Tribal Nations to assist in the education process of American Indian children. Yet, to stop the continuation of past harms, it is central to consult with Tribal Nations to understand their goals.
Similarly, all agencies that make decisions affecting Tribal Nations should have Tribal consultation processes to respect Tribal sovereignty and prevent injustices. ESSA provides state education agencies with a framework for what Tribal consultation should look like. However, not all Tribal education policies have federally mandated consultation processes, and Federal-Tribal consultations also have work to do before they reach a level that is satisfactory to all parties.
Presidential executive orders, starting in the 1970s and as recent as 2022, have called on federal agencies to create consultation requirements. These administrative orders do not offer clear guidance on what consultation should look like, nor are they legally enforceable. Despite the White House's many calls for agencies to have Tribal consultation, they lack follow-through due to confusion and lack of consequences.
Memorandums frequently leave behind more questions because they fail to define simple terms like:
Without clear procedures, Tribal Nations have an unfair responsibility to define the consultation process when they are often under capacity.
Tribal Consultation Policies in Montana are Lacking
Federally mandated Tribal consultation policies require some state agencies overseeing federal programs to conduct consultations. For example, the Social Security Act mandates that the Department of Health and Human Services (DPHHS) have consultation policies because they administer Medicaid and the Children's Health Insurance Program (CHIP). Similarly to education policy, there are limitations to where Tribal consultation is required, often only going as far as where the federal mandates exist. Even so, states are taking it into their own hands to look out for the well-being of all their citizens.
States like Arizona, California, Washington, and Wisconsin, with a significant number of Tribal Nations, have consultation requirements for all agencies; some of these policies include:
In Montana, however, state agencies are not required to create Tribal-consultation policies. Montana is home to 12 Tribal Nations and has very few Tribal consultation policies. In 2003, Montana passed HB 608, establishing just three annual state agency requirements.
These include:
So, although state agencies have reporting requirements, they are not required to have Tribal consultation policies.
Many agencies have a difficult time understanding Tribal consultation. Some view it as simply notifying a Tribe of a decision that would affect them. In contrast, others have asserted the need for meaningful dialogue between Tribal Nations and agencies. Consultation is complex and means asking for advice or seeking an opinion; it does not mean engaging with Tribal Nations solely to obtain consent.
In 2022, the Memorandum of Understanding (MOU) Regarding Interagency Coordination for the Protection of Tribal Treaty Rights created a national working group. There, Tribal Nations raised concerns for treaty rights and highlighted the need for consistent Tribal consultation. Tribes also expressed concern that states continue undermining treaty rights in various areas. For example, Tribes pointed to instances of being forced to litigate state restrictions on exercising treaty rights to hunt and fish.
Tribal Nations created a comprehensive list of Best Practices in consultation processes; below are a few suggestions:
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