This Memorandum is designed as a reference tool for Tribes and Native Nations as they consider enacting their own consultation laws. The research question that spurred this paper was: how are Native Nations, Tribes and Indigenous communities across the world reacting to and effectively addressing the lack of meaningful consultation in government (and to some degree private) development projects that affect them? The goal of this research was to search out the best practices and tribal laws already in existence and organize them into a workable format for use by Arizona Tribes. The final product is a compilation of implemented Indigenous/Aboriginal/tribal laws within this context. The hope is that by using this tool to create a strong consultation ordinance, the Tribes and Native Nations can put forth a clear standard for how they expect meaningful government-to-government consultation will occur between them and federal, state, and local agencies.

This project responds to the overwhelming abuses by government agencies (and third parties) who undertake development on reservations, or on off-reservation sites of cultural or religious significance to Native Nations, without engaging in any meaningful dialogue with those affected. Although the right to government-to-government consultation is well documented and established as a legal principle in this country, in practice it is woefully inadequate or in most cases non-existent.

The research findings have been divided into “topics,” which Tribes want consider including in their final laws. Each topic has an explanation why it was included for consideration, and contains drafting examples taken from tribal ordinances which address that particular topic.

Part One discusses the background of consultation, and where the legal responsibility to consult with Tribes stems from. We then address how this mandate to consult has failed thus far and give some specific complaints that shed light on why a tribal consultation ordinance is needed. It also mentions, beyond the legal mandate on the government, why it is good business practice for third party developers to engage in meaningful consultation as well.

In Part Two, we define of consultation on a theoretical level and the principles that guide it. In doing this, we give examples of how different tribes have formulated the scope, applicability and timing of how they wish to be consulted.

Part Three explores the process of consultation. We lay out how different ordinances have been chosen to address the method of initial consultation, including the form, timing, contact person and type of information required. Some tribes also include items like disclaimers against false claims of consultation; requirements that governments offer funding to allow the tribe to meaningfully respond to consultation requests; or a clause about how to address traditional knowledge in the development context.

This section also addresses the duties of the government in responding to the consultation process. Many tribes have chosen to outline with clarity that the government must not only consult, but must take action on the findings of the consultation. This helps to assure that consultation has “teeth,” so to speak. These accommodation clauses will often lay out appropriate factors that need to be considered when a project is determined to have an impact on a tribe’s interest.

Another important concern exemplified by the ordinances within this Memorandum relates to what happens after an initial consultation has occurred. Some tribes require the outcomes of consultation be reduced to a final written agreement; some include clauses for dispute resolution and provide for follow up procedures in order to support an ongoing tribal-agency relationship. Lastly, the research concludes with how some tribes have chosen to include obligations on third party developers within their ordinances, and lays out some international principles that support the imposition of this obligation on third parties.

The Indigenous Peoples Law & Policy Program at the University of Arizona Rogers College of Law has prepared this Document at the request of the Inter Tribal Council of Arizona. We acknowledge the valuable assistance from the law firm of Montgomery & Interpreter.

Contact information:
Robert Alan Hershey
Professor of the Practice
Director of Clinical Education
Indigenous Peoples Law & Policy Program
hershey@law.arizona.edu