Washington state attorney general announces consent rule for tribes

SEATTLE – Washington Attorney General Bob Ferguson has announced a new policy requiring consent from tribes that might be affected by projects or initiatives from his office.

Under the new policy, the attorney general will seek written approval for projects that directly and tangibly affect tribes, tribal rights, tribal lands and sacred sites. The requirement does not cover investigations, litigation, employment or internal business decisions. An additional clause requires consultation with tribes to avoid lawsuits if possible.

Ferguson announced the policy Friday, accompanied by representatives of several tribes, who praised it.

“I think it’s definitely a step in the right direction,” said Terri Parr, executive director of the Affiliated Tribes of Northwest Indians, a nonprofit that includes more than two-dozen Washington tribes as well as tribes in other states.

Parr, who attended the Friday announcement, said that communications between tribes and state governments have historically been challenging, with tribal governments sometimes ending up out of the loop on important issues.

“This can only lead to better relations between tribes and the state,” said Parr.

The policy comes in the wake of friction between Ferguson and some Washington tribes, generated by his decision to appeal a federal court ruling over fishery stewardship.

Lauren van Schilfgaarde, a tribal law specialist and attorney at the Tribal Law and Policy Institute, a national nonprofit, said while the policy didn’t appear to contain an enforcement mechanism, it still represented positive development.

Similar executive orders at the federal level have had meaningful impacts, van Schilfgaarde said in a phone interview, including apportionment of crime victim funds that had previously been unavailable to tribes and other changes.

“Tribes are technically not even part of the state, yet states have lots of meaningful authority that can impact tribes,” van Schilfgaarde said. “I think this consent rule is sort of acknowledging the elephant in the room, that tribes are here and they are sovereign.”

Robert Anderson, director of the Native American Law Center at the University of Washington, questioned the ultimate effect the policy would have, but said in an email that it was a positive philosophy, at least.

“Only time will tell if it has any real effect,” said Anderson.

The rules require Ferguson’s office to reach out in writing before projects that could affect a tribe, and designate a timeline to respond.

While the consent requirement does not restrict Ferguson’s ability to file lawsuits or take other legal action in his official capacity, a separate section does add a requirement for his office to consult with a tribe prior to filing civil litigation against it or tribally-owned business, with the goal of avoiding litigation.

In 2018 Ferguson asked the U.S. Supreme Court to overturn a decision by a lower court stemming from a 2001 case over salmon-inhibiting culverts around Washington, which saw rulings that the tribes’ treaty rights to fish meant the state must not destroy or block habitat crucial to healthy salmon stocks.

The case was resolved in 2018, but not before it pitted Ferguson against 21 Washington tribes included in the original suit.

Ferguson said Friday the new policy would take effect immediately in the form of an administrative rule, and that he plans to request legislation to make it a permanent requirement for future attorneys general.