Washington State/Tribal Government-to-Government Implementation Guidelines

SECTION II - CONSULTATION PROCESS

The purpose of this section is to provide principles and a practical set of tools for tribes and state agencies in implementing the government-to-government relationship. This section addresses how to conduct consultation, what critical elements should be considered in the consultation process and a check list of key components.

A. Guiding Principles of the Consultation Process

The Centennial Accord (signed in 1989) and the New Millennium Agreement (signed in 1999) establish the basic framework and provide the general foundation for tribal/state relations. However, at the 1999 Tribal/State Summit held in Leavenworth, Washington, tribal and state elected officials agreed that a well-delineated communication process was needed in order to provide for a structure to "operationalize" the Accord into a day-to-day working relationship. In order to promote successful consultation and collaboration between tribal governments and the state, the following guiding principles should be followed:

    1. Commitment to Consultation. The state and tribes, and their agencies and departments, commit to consulting with each other on matters that directly affect the other.
    2. Communication and consultation is a two-way street. Communication between tribal governments and state agencies should be direct and involve two-way dialogue and feedback. Face-to-face meetings between the appropriate tribal and state policy and/or technical level staff can increase understandings of any proposed actions and enhance the development of effective outcomes and solutions. While face-to-face meetings are generally desirable, phone calls, correspondence and other methods of communication should also be utilized.
    3. Build upon already established and on-going relationships between tribal/state officials. Formation of specific actions, policy and program development can be more productive if conducted within the framework of an on-going relationship. Additionally, since consultation may demand significant use of time and resources of many individuals, this on-going relationship will assist in best utilizing these resources for all parties.
    4. State governments are assuming greater responsibility under the federal government's policy of increased "devolution" of programs. "Devolution" is the delegation of authorities or duties to a different level of government. Before the delegation of these programs, the tribes worked directly with the federal administrators on issues of concerns to them. The tribes have continuing interests in many of these delegated programs, and the tribal interests should be considered in the administration of these programs by the state.
    5. Issues that require consultation should be identified as soon as possible in order to involve both parties early on in the process. The need for consultation and who makes the determination may be difficult to define in all cases and will vary among the governments. Consultation can be initiated by either a tribal government or state agency. As a general rule, any decision or action which would directly impact or involve tribal governments, its land base and/or operation of its programs requires consultation with those tribal governments. To ensure sufficient time for input before decisions are made and actions taken, requires early involvement of all parties affected by those actions.
    6. State/Tribes should make every effort to respond to and participate in the consultation process. State/Tribal governments should strive to ensure that appropriate communication and response is provided to any request for consultation. If there is no response to an initial request to engage in consultation, it should not be assumed that the state or tribes have no interest in participating in this process. State/Tribal governments and organizational structures will vary. Good faith efforts should be undertaken to involve affected governments.
    7. Parties should ensure that consultation occur through the interaction of officials with comparable governmental stature and authority. In order to maintain the government-to-government relationship, tribes and state agencies are encouraged to send policy officials to represent those interests which require joint final decision-making on key policy issues. However, tribes or state agencies may identify program and/or technical staff to attend meetings when appropriate, depending on the nature of the issue, and where similar representation is anticipated.
    8. Honesty and integrity must be maintained by all parties in the consultation process. Mutual respect and trust are fundamental elements in establishing a good consultative relationship. Tribal and state officials should be open with information that may be beneficial or critical to making a decision or developing a position.

B. Critical Elements in Conducting Consultation

Adequate preparation and identification of key elements are essential in conducting the consultation process. The following logistics and mechanics will assist in providing a forum for productive deliberation and decision-making:

    1. Identify the participants in the process. Each tribe and the state has the right to determine who will represent them in the consultation process. Certain responsibilities or authorities for specific actions may be dictated by tribal council resolutions or state legislation. While each party should strive to establish participation at the appropriate level, staff and/or technical individuals may also participate in the process. It should not be expected that staff will make policy decisions, or take formal positions without authorization from their respective government officials. However, all participants should disclose any limitations on their ability to make decisions on behalf of their agency/tribe, prior to any consultation meetings.
    2. Provide a clear description of the nature of the issue and/or conflict. Any related documentation or statements that outline for the purpose and/or describe the issue to be addressed should be provided in advance to all parties involved in the consultation process. These documents should clearly explain any proposed actions and the details of the decision or policy to be developed. Any sensitive information or legal limitations on or requirements for disclosure of information should be identified in advance.
    3. Allow ample time to review documents and respond to requests for consultation. Depending on the nature or complexity of the issues to be addressed, the amount of time will vary for different tribes or agencies. While some decisions may require quick actions due to imposed deadlines, every effort should be made to provide written notice in advance to allow for adequate and meaningful input and response.
    4. Establish and adhere to a schedule for consultation. State and tribal officials should jointly determine the protocols, timing and number of meetings needed to consult.
    5. Recognize that tribes are traditionally, culturally and administratively different from each other. Tribes have varying degrees of governmental infrastructure and managerial and financial resources. It should be understood that some kinds of information are sensitive, especially regarding traditional religious practices. Further, in some cases, tribal customary law or religious rules regarding issues of confidentially may not be negotiable. Tribes may be hesitant to share such information unless confidentiality can be guaranteed.
    6. Use of workgroups and/or task forces to develop recommendations. In some cases, development of recommended actions on various technical, legal or policy issues may be facilitated through the establishment of a joint tribal/state workgroup. Products developed by the Workgroup may be used to facilitate final policy decisions.
    7. Report on the outcomes of the consultation. Reflective of a meaningful government-to-government consultation, the goal is to reach consensus during the process. While consensus may not always be fully achieved, tribal and state agency officials should be involved and actively participate in the decision-making process so that all views are heard and considered.

Where appropriate, the parties may agree to formally document consultation meetings and agreed upon recommendations. Once the consultation is completed and a policy decision is final, all recommended follow-up actions should be implemented and monitored. Reports on the status of the implementation of recommended items should occur during the Annual Centennial meeting between state and tribal officials.