What does Tribal Consultation look like?

The Minnesota Legislature strengthened the state’s commitment to consulting with Native Nations, but agencies still need to follow through

On April 5, 2019, Governor Walz issued Executive Order 19-24: “Affirming the Government to Government Relationship between the State of Minnesota and Minnesota Tribal Nations: Providing for Consultation, Coordination, and Cooperation.” It commits the state to “meaningful and timely” consultation.

That’s profound. It means sharing power with Native Nations on issues of mutual concern to make decisions beneficial for both sides.

The executive order states agencies “must consider the input gathered from tribal consultation into their decision-making processes, with the goal of achieving mutually beneficial solutions.”

The Enbridge Line 3 tar sands pipeline provided an early test for the Walz administration’s promise. The administration failed.

A bill passed during special session this year makes another effort to strengthen the state’s commitment to meaningful consultation with Native Nations.

Key to this conversation is being precise about exactly what “meaningful consultation” means and looks like.

Gov. Tim Walz

This might seem like a wonky policy debate over language. It’s fundamentally about whether the state is going to live up to its promises to Indigenous Nations and peoples.

Enbridge Line 3 provides an example of the current state of Tribal Consultation.

On Nov. 15, 2019, Enbridge resubmitted an application to the Minnesota Pollution Control Agency (MPCA) to certify that Line 3 complied with the federal Clean Water Act. (Enbridge needed what is technically called a Section 401 Certificate, or what water protectors referred to colloquially as a water crossing permit.)

Enbridge submitted its application to the MPCA more than seven months after Walz signed his executive order.

Some Native nations strongly opposed Line 3 for violating treaty rights and threatening clean water and wild rice. White Earth Chairman Michael Fairbanks wrote Walz directly, asking him to direct the MPCA to reject Enbridge’s permit, at least temporarily.

What weight, if any, did such concerns carry?

In the spring of 2020, I emailed the MPCA asking how the Governor’s executive order shaped the agency’s work around Enbridge’s Line 3. I also asked if the agency had seen Chairman Fairbanks’ letter and if so, how did it respond?

The MPCA’s communications staff replied:

The MPCA is committed to meaningful consultation with Minnesota Tribal Nations, as prescribed in Executive Order 19-24. The MPCA recognizes the importance of its decision-making on the proposed Line 3 project for all of Minnesota’s Tribal Nations, communities, tribal members, and environmental justice communities. For this reason, the agency prioritized intergovernmental coordination early in project reviews and have worked to ensure that tribal and community input has been valued and considered throughout the process.

I replied saying the agency’s answer was short and lacked substance. I offered the opportunity to elaborate, which the agency declined.

The MPCA approved Enbridge’s water crossing permit Nov. 12, 2020.

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Line 3 crosses 200+ water bodies and 78 miles of wetlands.

Walz’s executive order said: “By June 30, 2019, all agencies will, in consultation with Minnesota Tribal Nations, have implemented tribal consultation polices to guide their work and interaction with Minnesota Tribal Nations and will submit these policies to the Office of the Governor and Lieutenant Governor.”

I requested the MPCA’s Tribal Consultation Policy. The policy it sent was approved September, 2013 during Gov. Mark Dayton’s first term.

It says: “Consultation is a process of meaningful communication and coordination between MPCA and tribal officials prior to MPCA taking actions or implementing decisions that may directly affect Tribes.”

That falls well short of Gov. Walz’s executive order, which requires that agencies “must consider the input gathered from tribal consultation into their decision-making processes, with the goal of achieving mutually beneficial solutions.”

MPCA staff said the agency was working with Native Nations to update its policy. It provided a working draft. One of the most significant proposed changes is new language defining “consultation.”

Consultation – formal communication on a government-to-government basis. Consultation is conducted between the decision-makers, who are tribal government leaders and senior representatives from the agency. After a relationship has been developed, a consultation protocol may be reached that recognizes and sanctions communications between tribal and agency designated representatives. A key factor of consultation is the recognition of a Tribe’s right to self-govern.

MPCA’s draft Tribal Consultation Policy

That definition is weak and confusing. It says a consultation protocol “may be reached” after “a relationship has been developed.” Who decides when a relationship has been developed? What does that even mean?

Another proposed change says “The MPCA Consultation Official and the Tribal Official should agree on the formal steps that will be considered consultation,” which sounds like the consultation process is negotiated.

I submitted a data request for MPCA documents showing how it followed its Tribal Consultation Policy in the review of Line 3’s water crossing permit.

On Aug. 31, the MPCA sent me 25 emails, PDFs and a spread sheet in response. In brief, they don’t reflect meaningful consultation. (To come to your own conclusion, click here for the emails.)

The language passed in the Tax Omnibus bill during this year’s Special Session. It’s stronger and clearer in defining “consultation.”

“consultation” means the direct and interactive involvement of the Minnesota Tribal governments in the development of policy on matters that have Tribal implications. Consultation is the proactive, affirmative process of identifying and seeking input from appropriate Tribal governments and considering their interest as a necessary and integral part of the decision-making process. … During a consultation, the burden is on the agency to show that it has made a good faith effort to elicit feedback. … [Emphasis added]

The state has a chance to get this right. Agencies still have to follow through, and not water down the process. The administration needs to be transparent with the public around if and how “meaningful consultation” is working.

The language is improved, but Tribal Nations can’t enforce it. Both Gov. Walz’s executive order and the new law prohibit it. The new law states that the language around Tribal Consultation doesn’t “create any right to administrative or judicial review, or any other right, benefit, or responsibility, substantive or procedural, enforceable against the state of Minnesota.”