US State and Territorial Indigenous Consultation Laws: A Potential Strategy to Improve the Social Determinants of Health

Abstract

Objectives:

The United Nations (UN) has articulated the right to self-determination as a human right for Indigenous people; however, US states and territories have been slow to operationalize this aspect of the UN Declaration on the Rights of Indigenous Peoples. Indigenous consultation laws require all federal executive agencies to consult with tribal nations before implementing policies that have a “tribal implication,” and these form the cornerstone of US efforts to implement the UN Declaration on the Rights of Indigenous Peoples. Despite these federal efforts, less is known about the degree to which state and territorial laws require consultation with Indigenous communities.

Methods:

We reviewed all Indigenous consultation laws identified through a search of 50 US states, the District of Columbia, and 5 territories to provide a holistic picture of how jurisdictions have regulated Indigenous consultation efforts.

Results:

Of the 56 states, 49 (87.5%) had at least 1 Indigenous consultation law; the remaining 7 jurisdictions had none. States engaged in Indigenous consultation in various ways, generally falling into 1 of 3 categories: (1) centralized consultation facilitated through an agency or department, (2) indirect consultation through a designated commission, and (3) fragmented Indigenous consultation through discrete laws. Important gaps were identified, including the lack of a definition for Indigenous consultation, the absence of an appeal process, and the need to train state officials on existing policies.

Conclusions:

The results provide a baseline on the degree to which US states and territories consult with Indigenous communities and can be used to identify gaps in US compliance with UN human rights mandates.

The right to self-determination for Indigenous people, articulated by the United Nations, includes the right to free, prior, and informed consent to all actions that affect Indigenous territories. US states and territories have been slow to operationalize this aspect of the United Nations Declaration on the Rights of Indigenous Peoples. ¹ As a cornerstone of US efforts to implement this declaration, Indigenous consultation laws allow Indigenous people to directly participate in decisions that affect their lives, from health to education to resource management. The US government requires federal agencies to consult with tribal nations before implementing policies that have a tribal implication. ² However, less is known about the degree to which laws in US states and territories (hereinafter, “states”) require consultation with Indigenous communities (i.e., communities present in the United States before the arrival of European settlers).

Indigenous communities have historically engaged in diplomatic relationships with the United States ³ through treaty making, which inherently acknowledged tribal sovereignty. As paternalistic policies in the United States increased, diplomacy gave way to a nation-within-a-nation model that prioritized federal decision-making.^4,5 The American Indian Movement advocated for increased self-determination in the 1970s, ⁶ and in the 1980s global Indigenous communities advocated for passage of International Labor Organization Convention 169, which disallowed assimilationist policies from signatories. ⁷ Colonization, a distal determinant of health for Indigenous communities, ⁸ disenfranchised Indigenous voices, but modern Indigenous advocacy efforts have led states to develop state-level Indigenous consultation laws. Although Indigenous consultation laws lack uniformity, all jurisdictions that have state or federally recognized Indigenous communities located within their territorial boundaries have at least 1 Indigenous consultation law. However, the lack of standardization has resulted in variations in the ability of Indigenous people to engage in decision-making.

Although Indigenous consultation under international law is aspirational, certain key principles have emerged. First, a mutually agreeable decision requires a good-faith effort. This means that consultation must occur before a decision is made ⁹ and full information, including alternatives, must be provided to Indigenous communities to meet the principle of noncoercion. The final principle set out on international free, prior, and informed consent mandates that consent be obtained ⁹ ; however, many settler governments have been unwilling to relinquish this control when they perceive larger benefits to society than to Indigenous communities. ¹⁰

The United States presently has 574 federally recognized tribes, ¹¹ 66 state-recognized Indigenous communities, ¹² and myriad unrecognized Indigenous communities with retained ties to land and culture. ¹³ Before the Clinton administration, federal consultation was conducted on a case-by-case basis. In 1993, executive order 12866 was issued, which mandated consultation with tribal leaders before the imposition of regulatory requirements. ¹⁴ In 1998, executive order 13084 expanded consultation to include meaningful input on regulatory developments. ¹⁵ Finally, in 2000, executive order 13175, the existing consultation framework, mandated federal executive agencies to consult with tribal leaders before issuing regulatory decisions with tribal implications. ²

Disruptions to ways of life among Indigenous communities after initial contact with European settlers resulted in persistent health disparities^16,17 among once-healthy communities. ¹⁸ Consultation reempowers Indigenous people, redresses prior colonialization, and is essential to improving health outcomes in Indigenous communities. ¹⁹ Federal Indigenous consultation laws are used in programmatic development, budget formulation, environmental planning, and data classification. Through consultation, tribes have advocated for increased federal funding for preventive care, inclusion of traditional medicine as part of federally funded palliative care, and improved access to Veterans Health Administration hospitals. ²⁰ Similar to the federal government, states can use consultation to design culturally appropriate policies and programs that address Indigenous concerns and improve health and well-being.

Without comprehensive consultation policies, decisions initiated by settler governments may unknowingly harm the ancestral lands, the natural and cultural resources, and the health and well-being of Indigenous people. ²¹ In the absence of a robust consultation process, the actions of jurisdictions could unknowingly and sometimes irreparably harm Indigenous people. For example, because agency decision makers were uninformed about the negative effects of using reclaimed water to make artificial snow, they approved its use at a ski resort, resulting in a group of Navajo medicine men being unable to gather needed medicines and ultimately having negative effects on the health of Navajo people. ²² Consultation can prevent these harms.

Poorly planned projects that fail to acknowledge the concerns of Indigenous people often incur costly delays and litigation. For example, inadequate consultation by Hawaiʻi related to development of the Thirty Meter Telescope observatory on Mauna Kea in 2010 led to civil disobedience, court actions, delays, and economic uncertainty.^23,24 In addition to the sacred status of the land, Native Hawaiians voiced numerous concerns, including compromised spiritual access, water quality, and impact to endemic species. Failing to consult Indigenous people may result in inefficiencies, as input from Indigenous people could strengthen the efficacy of a policy or program. ²⁵

Indigenous consultation is vital to addressing health disparities by ensuring that culturally responsive policies that align with community need are adopted. Input is especially important when the policy directly affects Indigenous health and well-being, such as the COVID-19 response. ²⁶ Moreover, because patient involvement in health care decisions is associated with improved health outcomes^27,28 and community consultations are linked to increased intervention efficacy, ²⁹ engaging Indigenous populations in health policy decisions may reduce health disparities. Because a substantial portion of the legal framework is occupied by states that have the authority to recognize and consult with any Indigenous community, this study focuses on state consultation laws with Indigenous communities, inclusive of state-recognized and unrecognized Indigenous communities. This article reviews Indigenous consultation laws identified through a search of all 50 states, the District of Columbia, and 5 US territories to provide a comprehensive baseline to better understand the scope of Indigenous consultation laws.

Methods

We used legal epidemiologic methods^30,31 to review and examine divergences among state Indigenous consultation laws of 50 US states, the District of Columbia, and 5 territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and US Virgin Islands) (Box). This project did not involve human data or participants; therefore, per the guidelines of the University of Hawaiʻi Institutional Review Board, board assessment was not necessary.

Box.

Search terms used to find Indigenous consultation laws of 50 US states, the District of Columbia, and 5 territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, US Virgin Islands) through December 31, 2020 ^a

Indigenous /3 consult!

Indigenous /3 comm!

Indigenous /3 council

Kanaka /3 consult!

Kanaka /3 comm!

Kanaka /3 council

Native /3 consult!

Native /3 comm!

Native /3 council

Oiwi /3 consult!

Oiwi /3 comm!

Oiwi /3 council

Pueblo /3 consult!

Pueblo /3 comm!

Pueblo /3 council

Trib! /3 consult!

Trib! /3 comm!

Trib! /3 council

^aHistorically, some Indigenous communities have been referred to by their traditional names, whereas others have advocated for a return to their traditional names. To ensure that our search terms encompassed as many laws as possible, several terms specific to large Indigenous communities were included.

Data Collection

Our cross-sectional dataset included enacted or amended laws, regulations, and executive orders from January 1, 1890, through December 31, 2020. The valid-through date listed for each record reflects the last date that the law was in effect or our default date of December 31, 2020. Two overlapping teams built the dataset: team 1 (3 researchers [I.T., A.W., T.L.-P.] and the supervisor [L.R.]) identified relevant laws, and team 2 (2 researchers [K.H., C.K.] and the supervisor [L.R.]) coded the identified laws. Team 1 developed the search terms, and 3 experts in Indigenous law and policy vetted the terms. Two researchers redundantly searched the Westlaw legal database. Once a researcher identified a law, the researcher recorded the citation and collected the full text of the law, regulation, or policy from the official state legislature or the Legal Information Institute (Cornell Law Institute).

Researchers then reviewed any statute or regulation (law) stating that Indigenous consultation should occur when making a decision. Two researchers independently excluded the following: (1) laws that were no longer in effect; (2) laws that used nonmandatory language, such as “should” rather than “must”; (3) laws that used directive language but were purely aspirational (eg, resolutions); (4) laws in which the search terms were part of the statutory notes interpreting the law; (5) laws in which terms referenced an alternative meaning (eg, “native” referred to native plants); (6) laws that were a court form or rule; (7) state laws that implemented the federal Indian Child Welfare Act, ³² mandating consultation on Indian child removals; and (8) laws that mandate consultation and provide a lengthy list of potential entities; including Indigenous communities, however, does not necessarily require consultation with each entity on the list. Researchers then reconciled the results, resulting in a divergence or rate of disagreement of 6.6% for the first 10 states. Researchers determined that the remaining divergence rates ranged from 39.0% to 45.1%, which was due to an increase in the number of laws in the remaining jurisdiction. Researchers discussed all divergences until they reached a consensus.

Exploratory Data Analysis

Indigenous law experts and researchers at the Center for Public Health Law Research (Beasley School of Law, Temple University) reviewed questions developed by the team supervisor. The supervisor included questions on the number and type of consultation laws; characteristics of the law (eg, topic); whether agencies were required to have consultation policies; availability of appeals (eg, process, remedies); establishment and implementation of Indigenous policy commissions, liaisons, or departments (eg, selection of members, reporting requirements, voluntary nature, funding); and mandated training on Indigenous consultation. Team 2 redundantly coded the data using MonQcle, a software coding platform from the Center for Public Health Law Research. Researchers diverged 32.6% of the time for the first 10 states. After discussion, researchers recoded the first batch and reached a divergence rate of 12.5%. Researchers achieved a divergence rate of 3% for the remaining batches. To maintain quality control throughout the process, the supervisor used Microsoft Excel to download all coding and examined the data for missing answers, incorrect citations, and caution notes. Researchers discussed and resolved divergences and caution notes in regularly held meetings.

Some questions covered >1 law. For example, some states created >1 commission, each with its own method of selecting members. In such instances, we combined our responses based on the totality of the laws. In another example, where a state had many Indigenous consultation laws but only 1 law incorporated an appeal process, we counted the state as having an appeal process. Whenever necessary, we adjusted the coding scheme to accommodate newly identified features of the data. We then reevaluated and modified states that were already completed accordingly.

To ensure reliability and replicability, a naive coder unfamiliar with the project conducted quality control and assisted in validation. The supervisor assigned 10 states (Alabama, Arkansas, Idaho, Kansas, Louisiana, New Hampshire, North Dakota, South Dakota, Vermont, and Wyoming) at random to the naive coder, which accounted for approximately 20% of the data. The supervisor and naive coder reached an initial divergence rate of 29%, which was reduced to 13.7% after discussion and inclusion of caution notes. Given the initial divergence rate and feedback from the naive coder, we removed the question about who in the community needed to be consulted, and we revised several other questions for clarity.

Results

All US state jurisdictions, with the exception of West Virginia and Missouri, had at least 1 Indigenous consultation law; of the territorial jurisdictions and the District of Columbia, only Guam had Indigenous consultation laws.

Consultation Categories

Indigenous consultation laws generally fell within 1 of 3 categories: (1) centralized consultation facilitated through a department, (2) indirect consultation through a designated commission, and (3) fragmented tribal consultation through discrete laws (Table 1).

Table 1.

Category of Indigenous consultation law in 50 US states, the District of Columbia, and 5 territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, US Virgin Islands) through December 31, 2020 ^a

Category	US state (including District of Columbia) or territory
Centralized	Arizona, Louisiana, Montana, New Mexico, Oklahoma, b South Dakota, b Utah, Washington, b Wyoming
Indirect	Colorado, Connecticut, Delaware, Guam, Hawaiʻi, c Indiana, Kentucky, Maryland, New Jersey, Tennessee
Fragmented	Alabama, Alaska, Arkansas, California, d Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virgina, Wisconsin
No consultation laws	American Samoa, District of Columbia, Missouri, Northern Mariana Islands, Puerto Rico, Virgin Islands, West Virginia

^aIndigenous consultation laws generally fell within 1 of 3 categories: (1) centralized (consultation facilitated through a department), (2) indirect (consultation facilitated through a designated commission), and (3) fragmented (tribal consultation through discrete laws).

^bAlthough these states provided for government-to-government consultation to be coordinated through a centralized department, they still recognized that state agencies had consultation responsibilities.

^cHawaiʻi represents a unique situation where the Office of Hawaiian Affairs (OHA) was created in part to facilitate consultation with state agencies. In many instances, OHA advocated for laws that mandated that state agencies consult through OHA.

^dCalifornia is classified as a fragmented state, even though the state has a tribal liaison, because whom tribes consult with and how they consult varies per the individual law.

Centralized consultation applies when a jurisdiction centralizes or funnels its Indigenous consultation duties through 1 person or office. Nine jurisdictions (Arizona, Louisiana, Montana, New Mexico, Oklahoma, South Dakota, Utah, Washington, and Wyoming) created a liaison position responsible for engaging with Indigenous communities. Notably, Oklahoma, South Dakota, and Washington created an office charged with promoting consultation and have statutes requiring state agencies to designate a liaison for consultation purposes. In other words, although a liaison or department coordinates the government-to-government relationship, the state acknowledges that state agencies also bear the responsibility of consulting with tribes. This position was most often located within the governor’s office; however, in some instances, the liaison was in an agency created for Indigenous issues, such as New Mexico’s Indian Affairs Department. For a state to be included in this category, the state must centralize decision-making within the liaison position. In some instances, a state (eg, California, Kansas) had a liaison or department, but consultation did not have to flow through this entity.

The second category (indirect consultation) covered jurisdictions that used commissions to manage consultation. These commissions receive consultation requests from state departments and agencies. A commission may handle the consultation itself or transmit the consultation request to the appropriate Indigenous communities. This type of consultation constitutes indirect consultation because the jurisdiction is using the commission as a proxy to consultation rather than directly engaging with Indigenous communities, thereby recusing itself from its trust responsibilities. In addition, because not all states require consultation with Indigenous communities in the selection of commission members, some commissioners may have little understanding of Indigenous issues. Colorado, Connecticut, Delaware, Guam, Hawaiʻi, Indiana, New Jersey, and Tennessee opted for this consultation structure.

The 30 remaining jurisdictions operated under fragmented consultation. These jurisdictions tended to pass specific pieces of legislation and insert Indigenous consultation requirements into each bill. Fragmented jurisdictions may have a few or numerous Indigenous consultation laws that have different points of contact or processes. Because each law has its own unique language, Indigenous communities and even agencies may have difficulty tracking consultation requirements. This category also requires Indigenous rights advocates to track pending legislation to ensure that consultation mandates are included in all relevant future legislation, which may be onerous. However, fragmented jurisdictions have a benefit of allowing consultation processes that are tailored to each context.

Summative Findings

Of the 56 states, 49 (87.5%) had at least 1 Indigenous consultation law; the remaining 7 jurisdictions had none (Table 2). A typical jurisdiction had 2 to 9 Indigenous consultation laws. Indigenous consultation laws covered broad topical areas, single subject matters (eg, Medicare inclusion or economic development), or all state–Indigenous consultation processes.

Table 2.

Indigenous consultation laws and policies in 50 US states, the District of Columbia, and 5 territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, US Virgin Islands) through December 31, 2020 ^a

State	No. of laws	Define consultation	Process to consult	Liaison or department	Commission	Report b	Appeal c	Agency policy	Training mandated
Alabama	3				Y	Y	Y
Alaska	5				Y
American Samoa	0
Arizona	10		Y	Y	Y	Y		Y
Arkansas	1
California	18	Y	Y	Y	Y		Y
Colorado	8		Y		Y		Y
Connecticut	2		Y		Y	Y
Delaware	1		Y		Y
District of Columbia	0
Florida	2
Georgia	2				Y	Y
Guam	3				Y			Y
Hawaiʻi	15	Y	Y		Y		Y		Y
Idaho	7				Y
Illinois	1		Y
Indiana	4				Y
Iowa	2				Y
Kansas	3			Y	Y
Kentucky	1				Y
Louisiana	5		Y	Y	Y	Y
Maine	6				Y		Y
Maryland	2				Y	Y
Massachusetts	4				Y	Y
Michigan	4		Y		Y	Y
Minnesota	24		Y		Y	Y	Y
Mississippi	7
Missouri	0
Montana	19			Y	Y	Y	Y		Y
Nebraska	10			Y	Y	Y	Y
Nevada	20		Y		Y	Y	Y		Y
New Hampshire	3		Y		Y	Y	Y
New Jersey	3				Y	Y
New Mexico	30			Y	Y	Y		Y	Y
New York	2		Y		Y		Y
North Carolina	13		Y	Y	Y	Y	Y
North Dakota	11		Y	Y	Y	Y	Y
Northern Mariana Islands	0
Ohio	1						Y
Oklahoma	17		Y	Y	Y	Y
Oregon	50		Y		Y	Y	Y		Y
Pennsylvania	1		Y				Y
Puerto Rico	0
Rhode Island	3		Y		Y
South Carolina	2				Y
South Dakota	3		Y	Y	Y
Tennessee	2				Y	Y
Texas	2		Y				Y
US Virgin Islands	0
Utah	13	Y			Y	Y
Vermont	2				Y
Virginia	2			Y	Y
Washington	41		Y	Y	Y	Y	Y		Y
West Virginia	0
Wisconsin	15		Y		Y	Y	Y
Wyoming	9			Y	Y	Y

Abbreviation: Y, yes.

^aBlank cells indicate columns that do not apply to the given state.

^bReport refers to a law that mandates that the consulting government entity file a report on Indigenous consultation.

^cAppeal refers to some type of appeal process that an Indigenous community can go through if dissatisfied with the consultation result or process.

Only 3 jurisdictions defined tribal consultation. Despite the lack of a definition, 15 jurisdictions provided some guidance on the processes of engaging Indigenous communities in consultation. For example, a Delaware statute concerning the discovery of human remains provides that a committee “shall be notified of all skeletal remains determined to be Native American within 5 days of discovery.” ²⁴ In this instance, the committee consists of the Chief of the Nanticoke Indian Tribe, 2 members appointed by the Chief, the director of the Division of Historical and Cultural Affairs, 2 members appointed by the director, and a final member from the private sector appointed by the governor. Although procedural information such as timelines can provide implementation guidance, it does not address scale or standards that need to be met.

Of the 49 jurisdictions with at least 1 Indigenous consultation law, 42 (85.7%) have at least 1 commission that handles Indigenous policy. Commissions varied from topical (eg, education, housing) to overarching. In 81.0% of jurisdictions (34 of 42), the governor appointed commissioners for at least 1 commission. State agencies appointed commissioners in 45.2% of jurisdictions (19 of 42), and the legislature appointed commissioners in 23.8% of jurisdictions (10 of 42). Notably, 24 jurisdictions (57.1%) had multiple commissions and, therefore, may have had multiple entities appoint commissioners. Regardless of the entity that appointed commissioners, 78.6% of jurisdictions (33 of 42) mandated consultation with Indigenous communities on selection of commissioners.

Jurisdictions may ignore desires of Indigenous people; in such cases, Indigenous people may be left without a remedy. Only 19 of 56 jurisdictions (33.9%) had at least 1 law that explicitly discussed an appeal process. Most appeal processes (57.9%; 11 of 19 jurisdictions) were internal to the deciding department; however, 8 of 19 jurisdictions (42.1%) explicitly provide for judicial appeal of an agency decision. Several jurisdictions offer multiple avenues, including 1 of 19 jurisdictions permitting a legislative appeal and 1 of 19 providing a gubernatorial appeal.

Of 56 jurisdictions, 4 (7.1%) require state agencies to develop and implement their own consultation policy. While 25.0% of jurisdictions (14 of 56) have a specialized position that oversees Indigenous issues, the position itself could disincentivize other state employees from understanding Indigenous consultation laws. To standardize knowledge, 6 of 56 jurisdictions (10.7%) mandate that certain staff and officials complete a training on Indigenous law, policy, or consultation processes.

Discussion

The United States owes a trust responsibility to tribal nations,^33,34 which requires all federal agencies to meaningfully engage with tribes when developing policies with “tribal implications.” ⁹ In alignment with this fiduciary duty, the United States, which initially opposed the United Nations Declaration on the Rights of Indigenous Peoples, later adopted it under the Obama administration. ³⁵ States, however, are free to establish their own consultation policies. The results of our study provide a baseline for the degree to which jurisdictions within the United States consult with Indigenous communities and identify categories of consultation.

When state consultation processes are poorly defined, understanding the rights of Indigenous people with regard to state obligations can be challenging. A lack of transparency in consultation processes can create confusion among tribal leaders and state officials charged with implementing consultation. To address unclear Indigenous consultation processes, jurisdictions should enhance their consultation process by consolidating processes and clarifying terminology, including whom to consult and on what topics. Tribal liaisons, departments, and potentially funded commissions may provide an avenue to begin the consolidation. In addition, because agencies are mission restricted, officials refer back to policies for decision-making. Thus, the incorporation of implementation policies at the agency level for Indigenous consultation, with oversight and extra-agency appeals to ensure accountability, is a good fit within existing public administration frameworks. Finally, proactive education through a mandatory training requirement could reduce confusion and increase mutual understanding.

Our study had several limitations. First, we reviewed laws using online legal repositories, which do not capture agency policy documents. Moreover, at least 1 jurisdiction (American Samoa) did not use online repositories to house its laws; thus, we may have missed some laws. Second, as a baseline study, we were unable to provide best practices; however, we have provided our interpretations. Additional research is needed on the effects of Indigenous consultation with regard to the 3 consultation categories. A model Indigenous consultation code should also be considered. Model codes, such as the Model Penal Code and Model Tribal Probate Code, have successfully distilled collective experiences of jurisdictions to provide evidence-based legal language and may be practical for this topic. ³⁶

Conclusion

To effect policy change at a systemic level, Indigenous voices must be not only present but heard. Recent work on Indigenous political representation found that tribal nations that increased their political power with Indigenous representation on the legislature and increased tribal campaign contributions had fewer cases of COVID-19 when compared with tribal nations that did not, ³⁷ suggesting that Indigenous participation in the policy process positively affected the health of Indigenous people. Increased participation of Indigenous people could also be promoted by the passing of Tribal Health in All Policies legislation, ³⁸ which, when coupled with Indigenous consultation law, could translate to improved public health policies for Indigenous people.

Indigenous consultation at the state level is an emerging field. Our results indicate that many states consult with Indigenous communities. Indigenous communities hold unique conceptions of health that Western health care frequently does not address.^39,40 Community engagement in health care policy and intervention development may promote health and increase adherence to interventions, thereby reducing health disparities. Consultation with Indigenous communities should be encouraged to ensure culturally effective and responsive health policies and programs. Ultimately, Indigenous consultation may lead to better decisions, increased legitimacy, and improved health and social justice for all.