Ferguson’s policy requires consent from tribes before taking action other than litigation that affects tribes, requires consultation prior to filing litigation
OLYMPIA — Attorney General Bob Ferguson today announced a new policy that requires the Attorney General’s Office to obtain free, prior and informed consent before initiating a program or project that directly and tangibly affects tribes, tribal rights, tribal lands and sacred sites. Attorney General Ferguson also announced that his office will refrain from filing any litigation against a tribal government or tribal-owned business without first engaging in meaningful consultation to resolve the dispute, provided that doing so does not violate the rules of professional conduct.
This policy is the first of its kind in Washington state.
The Tribal Consent and Consultation policy is effective immediately.
“In furtherance of strengthening partnerships between Indian tribes and my office, I am announcing an official AGO policy requiring my office to achieve free, prior, and informed consent before initiating a project or program that directly and tangibly affects Indian tribes, rights, tribal lands and sacred sites,” said Ferguson. “This is an historic step for the Attorney General’s Office and the State of Washington. I hope other government agencies across the state and the country take notice and consider similar steps.”
“Through his actions today, Attorney General Ferguson has listened to, learned from, and followed through on the advocacy of countless Native American leaders nationwide and Indigenous leaders globally who have defended the sovereignty and rights of their peoples,” said Quinault Indian Nation President Fawn Sharp. “By adopting ‘free, prior, and informed consent’ as the basis of his Administration’s interactions with Tribal Governments, Attorney General Ferguson has become a global standard bearer for recognizing the full sovereignty and political equality of Indigenous peoples.”
“Today, Attorney General Ferguson introduced policies that boldly chose to make Washington state a more fair, equitable, and just place,” said Snoqualmie Indian Tribe Chairman Bob de los Angeles. “By fully recognizing and respecting the sovereignty of Washington’s Tribes and working to improve communication and partnership with them, Attorney General Ferguson is showing real leadership, and the Snoqualmie Indian Tribe is proud to have collaborated with him on these groundbreaking new policies.”
“Today, Attorney General Ferguson took a historic step forward in the relationship between Washington state and Washington’s Tribes by adopting Tribal relations policies founded on the principle of ‘free, prior, and informed consent,’” said Samish Indian Nation Chairman Tom Wooten. “By committing to work with Washington’s Tribes on the basis of true equality and collaboration, Attorney General Ferguson is demonstrating the vision and inclusive leadership we will need to confront immense challenges like climate change, homelessness, and the opioid crisis that impact all of Washington’s communities.”
"Today is a day to celebrate," said Frances Charles, Lower Elwha Klallam Chairwoman. "Attorney General Ferguson made a meaningful and historic step towards recognizing and honoring the full sovereignty of Washington's Tribes."
“This is a groundbreaking recognition of tribal sovereignty and the best way to ensure that treaty rights are honored,” said environmental attorney Jay Manning, former director of the Washington State Department of Ecology. “This commitment changes forever Washington state’s less than exemplary history on treaty rights.”
Consent will require a written resolution from the highest elected body from every federally recognized tribe that may be directly impacted.
Ferguson will propose legislation in the 2020 legislative session to memorialize and preserve this policy in statute.
Due to other legal and practical restrictions, Ferguson’s consent policy does not include actions related to litigation, legal advice or circumstances in which a failure to act may directly subject the Attorney General’s Office to sanction from the court. Consequently, Ferguson’s policy requires litigation consultation.
Consistent with the Washington State Courts Rules of Professional Conduct, the Attorney General’s Office will consult with tribes before the office files any civil litigation against a sovereign tribal government or tribal-owned business. The policy calls for the Attorney General or his or her Chief Deputy to personally participate in the consultation whenever feasible.
Additionally, the policy requires meaningful notice to all 29 federally recognized tribal governments in Washington prior to proposing legislation or filing an amicus brief that may directly affect tribes or tribal lands, and after issuing a ballot statement on an initiative that may directly affect tribes and tribal lands.
The notice provision of Ferguson’s policy will have an immediate impact. Today his office will notify all 29 federally recognized tribes in Washington state about an initiative recently filed by Tim Eyman that will have a negative impact on tribal compact schools.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.email@example.com