A new Environmental Law Institute (ELI) study examining California’s tribal consultation laws reveals a significant gap between increased tribal participation and meaningful influence.
Published in September, the study found that while 80% of tribes reported more consultation opportunities, only a third saw improved relationships with state agencies or better protection of cultural resources.
The study, focused on California Senate Bill 18 and Assembly Bill 52, both examined California’s efforts to reform its historically fought relationship with Native American tribes through mandatory consultation requirements. SB 18 requires local planning departments to consult with tribes on development projects, while AB 52 mandates similar steps from state agencies during environmental reviews.
Building on these findings, ELI launched its Tribal Consultation Hub policy database in early November — part of a broader initiative on advancing government-to-government consultation in state and local decisionmaking. The newly launched database tracks tribal, state, and federal consultation policies nationwide, aiming to improve accountability and spur best practices, including protecting sensitive tribal information and ensuring agencies provide adequate resources and respect Indigenous knowledge.
What brought the ELI to the table on a tribal consultation hub?
In conducting a study of consultation under a couple of California laws, we recognize there's a multitude of tribal consultation policies and laws out there. I think we saw three purposes. The first is just to provide information to tribes about what consultation policies are out there, doing a broad search of states and their agencies, as well as the federal policies, which are better known.
The second one is to improve transparency or accountability to the extent that agencies and states have laws and policies about consultation. This provides the information about them, which is a basis for holding agencies accountable to the processes.
Thirdly, it’s an opportunity for improvements in consultation by providing a multitude of examples that states and tribes are setting out.
How can tribes use that information?
As far as policies, tribes can look and see what appear to be best practices or policies that they may want to follow to improve their own policies — or develop their own policies.
Will the database stay current with policy changes?
Yes, it's an ongoing database. We will continue to add policies at the state level where there are changes, and at the federal level, we make sure to update those.
Can you talk a little more about the consultation case study?
It was part of a comprehensive analysis of two consultation laws in California. And we didn't just do a couple of case studies, but we conducted a range of interviews with representatives of tribes, agencies, experts or people who are pretty involved with consultation under these laws.
Your team found gaps in the regulations that made them less helpful to tribes.
As a result of these laws in California, there's a really significant increase in consultation opportunities for tribes with agencies in both the local planning process and under California's Environmental Quality Act.
The gaps appear generally in effectiveness. Those include areas of confidentiality of tribal information, as well as providing sufficient resources for tribes to consult. Agencies also need to understand the whole tribal process … notification issues, making sure that tribes are notified, that the right people are notified.
These sound like practical considerations. Are there others from the study that come to mind?
(Sometimes), the timeline may be too constrained for tribes to follow, so there's a need for understanding of where tribes are coming from, as far as their ability to commit consideration of tribal expertise and Indigenous knowledge. There are concerns about how tribal information is incorporated, as well as accountability.
Are things moving in the right direction on tribal consultation?
I think, you know, it's very dependent upon the situation. In California, having the laws on the books has provided opportunities for tribes to have greater participation in consultation there, depending upon the tribe, and frequently depending upon resources available to the tribe, there is less improvement than they had hoped.
