WA's top lawyer took a rare step to affirm tribal sovereignty — here's why that's a big deal
Under the new policy, the attorney general must get written consent from tribes before taking certain actions that affect them. That's something few have put into practice, experts say.
Samish Tribal Chairman Tom Wooten wanted to send a particular message when he sang and drummed at the start of a press conference at the University of Washington last month. Washington state’s attorney general was there, surrounded by tribal luminaries, to announce a new policy for how his office would interact with tribes — a change tribal leaders had sought for years.
As Wooten delivered a prayer song, his hope was that Attorney General Bob Ferguson’s new policy of seeking consent and meaningful input from tribes would spread to other agencies as well. “It was to put a blessing on the work that was done there, so it will perpetuate and continue,” Wooten recalled Tuesday, describing the significance of the prayer he sang in Straits Salish, the traditional language of the Samish Indian Nation.
Ferguson, whose relationship with the state’s tribes has been fraught in the past, did something rare that day by enacting a new protocol for his office, several experts told Crosscut. Under Ferguson’s new policy, the attorney general's office is promising to not initiate a project or program that affects a tribe’s lands, people, resources or cultural sites without first gaining written consent from that tribe’s leaders — a concept also known as free, prior and informed consent.
The AG's office already has acted under the new policy. In a move last week, the office sought written permission from the Suquamish Tribe to distribute money from a recent legal settlement to the tribe's Wellness Center. The grant money is supposed to help boost health care services on the Kitsap Peninsula.
The principle that governments should obtain consent from Native people before encroaching on their lands and resources — or enacting policies that affect them — is not a new idea. More than a decade ago, it was enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, which the U.N. adopted in 2007. It is something indigenous communities across the globe have fought for over many generations.
Yet federal agencies, as well as countries around the world, have been slow to implement policies to obtain tribes’ consent, even after endorsing the broad language of the U.N.’s 2007 declaration, said Carla Fredericks, director of the American Indian Law Clinic at the University of Colorado Law School. In a 2017 paper, Fredericks wrote that free, prior and informed consent is “currently an emerging norm and seen as an aspirational goal, rather than binding international law.”
By contrast, when it comes to actually implementing the principles of the U.N. declaration, “the Washington policy is the most significant step forward that I’ve seen,” Fredericks said by phone this week.
Kristen Carpenter, a University of Colorado law professor who is a member of the United Nations’ Expert Mechanism on the Rights of Indigenous Peoples, agreed that the policy announced by Washington’s attorney general last month “is much more specific than anything else I’ve seen around the world.” It may very well be the first time a state attorney general has adopted such a policy.
“I haven’t seen any state attorneys general announce a policy like this,” said Carpenter, who is also director of the American Indian Law Program at the University of Colorado. “If there are others, there are certainly very few. ... It certainly is groundbreaking, it’s safe to say."
For its part, the United States has stopped short of embracing a policy of free, prior and informed consent with Native American tribes. When the U.S. finally endorsed the U.N. Declaration on the Rights of Indigenous Peoples in 2010 — three years after most other countries — it affirmed a more limited policy of engaging in tribal consultation, a process in which tribal leaders say their voices often aren’t truly heard.
Fawn Sharp, the president of the Quinault Indian Nation, said Ferguson’s commitment is a concrete one that goes beyond the unenforceable goals that some federal departments and other countries have adopted. Now that the written policy is in place, tribes have the option of appealing to a court, for example, if they believe the policy is not being followed, said Matthew Randazzo, a consultant for the Quinault Indian Nation and the Snoqualmie Tribe.
Sharp worked diligently over the past several years to help establish the new policy, which Ferguson announced on May 10 at the the UW's Intellectual House, a longhouse-style facility.
“In that regard, I think it is the equivalent of a Brown v. Board of Education civil-rights standard,” Sharp said last week. “It is a significant change in that we have achieved a level of political equality — and that, of course, is the objective.”
There are limits to the policy, however, including instances when the state initiates litigation against a tribe. The policy states that the attorney general’s office will, whenever possible, consult with tribes and seek feedback before filing a lawsuit against them. But it doesn’t pledge to obtain their consent first.
Ferguson said he can’t necessarily go that far, because of his legal obligation to serve as the state’s lawyer first and foremost.
Still, he said he thinks the policy will be an improvement over his office’s past practice. For instance, Ferguson said if the policy had been in place in past years, he would have engaged sooner with tribes in a contentious case involving state-owned road culverts that block salmon migration. Last year, the U.S. Supreme Court declined to overturn a 9th Circuit Court of Appeals ruling that sided with the tribes in that case. The culverts lawsuit, which 21 tribes filed against the state in 2001, predated Ferguson’s 2012 election as attorney general, though it was under his leadership that the state appealed the case to the nation’s highest court.
“You’ve got to be willing to change when you need to change,” Ferguson said last month.
Tribal members look on as Washington Attorney General Bob Ferguson speaks.
Fredericks, the director of the University of Colorado’s American Indian Law Clinic, said the language of Ferguson’s commitment to consult with tribes still stands out as unusual, particularly in how strongly it focuses on trying to reach a solution before going to court.
“It’s using consultation as a mechanism to try to engage in dispute resolution,” Fredericks said. “That’s really different — I’ve never seen anything like that before.”
The policy also requires the attorney general to provide notice to tribes before proposing legislation that may directly affect them, their rights or their lands, as well as before filing friend-of-the-court briefs in cases that impact them. In addition, the new policy already has required Ferguson to reach out to tribes to tell them about a proposed statewide initiative, filed by Tim Eyman, that Ferguson's office said will negatively affect tribal compact schools.
At the same time, the attorney general’s policy is limited in that it doesn’t apply to other state agencies — something Wooten, the Samish tribal chairman, would like to see change.
“My hope is other folks adopt this,” Wooten said. “The reality is, this is a good place to start.”
Robert Anderson, a law professor and the director of the Native American Law Center at the University of Washington, took a somewhat skeptical view of Ferguson’s new policy, saying he is still waiting to see what the practical impact will be. Much depends on the details of how it is written and applied — "what the particulars are," he said.
Still, as a philosophical statement alone, the policy carries some weight, Anderson said.
“These states have historically had such horrible relationships with tribes, it is a big deal when they come out and say, ‘We acknowledge your existence, that you were here first,’” Anderson said.
He added: "If this thing is sort of a permanent attitude shift on the part of the attorney general’s office, that will be good. That will be positive.”
That message of mutual respect is something that Robert de los Angeles, the chairman of the Snoqualmie Tribe, said is “a huge win” for the state’s tribes. In that regard, de los Angeles said Ferguson “is making a move that other AGs have not made within the nation.”
“The written consent is something totally different — with government to government, one on one,” de los Angeles said. “I believe he is at the leading edge of the direction that the states and tribal governments need to go.”
Ferguson said he will propose legislation in the coming year that, if approved by Washington lawmakers, will enshrine the new policy in state law. That way, he said, future Washington attorneys general will be bound by the same policy he has implemented within his office.