Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

CENTENNIAL ACCORD PLAN

Washington State Office of the Attorney General

I. The Role of the Attorney General in State Government

The Attorney General for the state of Washington is an independent constitutional officer and the legal adviser to state agencies, officers and officials. Among the duties assigned to the Attorney General by law is the duty to “represent the state and all officials, departments, boards, commissions and agencies of the state . . . in all legal or quasi legal matters . . . and advise all officials, departments, boards, commissions, or agencies of the state in all matters involving legal or quasi legal questions . . .” RCW 43.10.040. With few exceptions, the Attorney General is the exclusive source of legal counsel and representation for state officers and agencies.

Because of its role in state government and its comprehensive legal duties and responsibilities, the Attorney General’s Office (AGO) is involved in a wide array of issues which potentially impact state agencies and tribal governments in their relations with one another. Because of this unique role, the AGO may be in a position to assist with communications and the facilitation of solutions that employ the diverse expertise and resources of multiple agencies and officials.

 

II. Overview of the Centennial Accord Plan

This plan covers AGO commitments and the process for consent, consultation and notice.  Section IV describes the specific situations where the AGO will request consent from Tribes. Consent in this plan entails receipt of free, prior and informed consent prior to taking the actions specified in this plan that directly and tangibly affect Tribes, rights or tribal lands.  Section V and VI describe the consultation between the AGO and Tribes.  Consultation is a process where the AGO will share information regarding AGO actions with affected Tribes to ensure a complete understanding of the action and to identify and address tribal concerns.  Specifically, Section V describes consultation prior to the AGO initiating litigation and Section VI states that Tribes may request consultation with the AGO.  Section VII describes situations where the AGO will provide notice of AGO actions to Tribes.

In this plan, “Tribe” refers to the federally recognized American Indian Tribes in Washington State or the governing body of that Tribe.  “Tribal land” includes “Indian Country” as defined in federal law as well as trust lands and lands which have been identified by a Tribe to the AGO as containing cultural, historic or archaeological resources.

 

III. Contacts Within the Attorney General’s Office

  • Yasmin Trudeau, Legislative Director and Tribal Liaison

    • Liaison for External Affairs
    • 1125 Washington Street SE
    • P.O. Box 40100
    • Olympia, WA 98504-0100
    • Phone: (206) 516-2993
    • Email: Yasmin.Trudeau@atg.wa.gov

 

  • Kristen Mitchell, Deputy Attorney General
    • Liaison for Legal Affairs
    • 1125 Washington Street SE
    • P.O. Box 40100
    • Olympia, WA 98504-0100
    • Phone: (360) 664-2961
    • Email: Kristen.Mitchell@atg.wa.gov

 

IV. Consent from Tribes on Certain AGO Actions

The AGO will receive free, prior and informed consent prior to taking certain actions specified in this section that directly and tangibly affect Tribes, rights or tribal lands.

A.  Actions Subject to Consent

1) Unless prior consent is received, the AGO will not initiate an AGO program or project that directly affects a Tribe that the AGO undertakes under the independent authority of the Attorney General. Consent will not be requested related to AGO investigations, litigation, employment and other internal business decisions, or in circumstances where a failure to act may subject the AGO to sanction from a court.

2) AGO actions on behalf of any other entity in the AGO’s role as legal counsel to state officials, agencies, departments, boards and commissions are not subject to consent. Consent also will not, and cannot, be requested on statutory duties and functions of the AGO, including but not limited to issuing legal opinions and formulating ballot titles for state initiatives or referendum measures.

3) Consent will not be requested on broad issues that impact many or all Washington Tribes, because a requirement for “consensus” from all affected Tribal governments would be both impractical and inconsistent with the independent sovereignty of each Tribe.

4) Actions specifically covered in the consultation and notice requirements of this plan are not subject to consent. The requirements for notice and consultation are covered in Sections V, VI and VII of this plan.  However, the AGO may choose to request consent for programs and projects outside the scope of this section.

B. Request for Consent

1) The AGO will request consent by sending notification to the chair of the Tribe’s governing body or to any person identified by the Tribes to receive the request.  The AGO will send a copy of the request to each member of the Tribe’s governing body.

2) The request will provide clear information about the AGO program or project and describe its potential impact to the Tribe.

3) Tribes may identify persons to receive the request by sending the name, address and contact information to an AGO Tribal Liaison.

C. Consent

1) Consent is a written resolution from the governing body of the affected Tribe.

2) If a Tribe does not respond within the timeframe designated in the request then the AGO will interpret that as a grant of consent.

3) If a Tribe responds to a request for consent by objecting to the project or program, the AGO may request consultation with the Tribe to see if issues raised by the Tribe can be addressed.

 

V. Consultation with Tribes Prior to Litigation Initiated by the AGO

The goal of consultation is to further the government-to-government relationship between Tribes and the State, and ensure the mutual respect for the rights, interests and obligations of each sovereign.  A further goal of consultation is to share information regarding AGO actions to ensure a complete understanding of the action and to identify and address tribal concerns. Consultation is independent of and in addition to any other public participation process required by law.

A.  Litigation Consultation

1)  To the extent consistent with the Rules of Professional Conduct, and with the goal to avoid litigation whenever possible, the AGO will consult with a Tribe prior to filing civil litigation against a Tribe or a business owned by a Tribe.  The AGO may request consultation on other issues to further the goals of this plan.

B. Consultation Request

1) The AGO will request consultation by sending notification to the chair of the Tribe’s governing body or to any person identified by the Tribe to receive notice.  The AGO will send a copy of the notice to each member of the Tribe’s governing body.  Tribes may identify persons to receive notice by sending contact information to an AGO Tribal Liaison.

2) The notice will provide clear information about the dispute or issue.

3) The notice will provide a time of no less than thirty days for the Tribe to respond to the AGO accepting the invitation to consult or declining consultation.  Thirty days will run from the date of actual receipt or five days after date of mailing for notices sent by first class mail.  The notice will clearly state the timeframe for response and how to respond.

4) If a statute of limitations, court rule, or other factor requires the AGO to provide less than 30 days notice, the AGO will clearly identify the deadline in the notice and make every reasonable effort to consult within the time available.

5) If the Tribe does not respond within thirty days of receipt of the notice, or the amount of time provided under (4), the AGO may conclude that the Tribe has declined consultation on the project.

C. Consultation Process

1) Where a Tribe accepts the invitation to consult, the AGO will contact the Tribe to establish a mutually agreed timeline for completion of consultation. The AGO will communicate any time constraints on the process.

2) The AGO and the Tribe will identify to each other a point of contact and persons who will participate in the consultation. The AGO and Tribe’s point of contact will schedule any necessary meetings. Whenever feasible, the Attorney General or Chief Deputy will personally participate in the consultation.

3) The AGO will work in good faith during the consultation process to identify and address the Tribe’s concerns.

4) The Tribe may choose how to provide feedback and identify concerns including whether in writing, verbally during a meeting or in other form.

5)  The AGO will provide a response to the Tribe detailing how the AGO will respond to the Tribe’s feedback and concerns.

 

VI. Consultation with the AGO at the Request of Tribes

The AGO is always open to consultation at the request of Tribes on any issue or topic contemplated by the Centennial Accord.  The AGO is also amenable to assisting Tribes in resolving disputes with state agencies or officials or with the AGO itself.  The nature and extent of the consultation or dispute resolution process may vary depending on the role the AGO occupies in relation to the issue or topic.  Tribes may request consultation with the AGO or AGO participation or assistance with dispute resolution by contacting the Attorney General or an AGO Tribal Liaison.

 

VII. Notice to Tribes of Other AGO Actions

The AGO will provide notice to Tribes prior to:

  • Proposing legislation that may directly affect Tribes, rights or tribal lands;
  • Filing an amicus brief that may directly affect Tribes, rights or tribal lands.

The AGO will provide notice to Tribes after:

  • Filing a ballot title for a state initiative or referendum measure with the Office of Secretary of State on an initiative or referendum measure that directly affects Tribes, rights or tribal lands.

A. Notice to Tribes

1)  The AGO will send notice to the chair of the Tribe’s governing body or to any person identified by the Tribes to receive notice.  The AGO will send a copy of the notice to each member of the Tribe’s governing body.  Tribes may identify persons to receive notice by sending the name, address and contact information to an AGO Tribal Liaison.

2) The notice will provide clear information about the action, the timelines associated with the action and will provide information for the Tribe to contact the AGO for additional information.

DATED this 10th day of May, 2019.