A hard look at the State of MN’s commitment to ‘meaningful consultation’ with Native Nations

Gov. Tim Walz and Lt. Gov. Peggy Flanagan failed miserably to live up to the spirit of their pledge of “meaningful consultation” with Native Nations. Examples include the state’s approval of Enbridge Line 3, MinnTac mine’s ongoing wild-rice-damaging pollution, the proposed Huber Lumber mill, and other environmental issues.

All state agencies are required to have tribal consultation policies on file with the Governor’s Office. Healing Minnesota Stories obtained copies through a Data Practices Act request.

The “meaningful consultation’ agencies provide don’t include any accountability or enforcement measures. Agencies aren’t transparent on how Tribal consultation affects their decisions.

A state law passed last year could strengthen the practice of “meaningful consultation.” Only time will tell.

A quick history

A string of gubernatorial executive orders have promised improved Tribal relations:

  • April 9, 2003, Gov. Tim Pawlenty signs Executive Order 03-05 affirming government-to-government relations with Tribal Nations.
  • Aug. 8, 2013, Gov. Mark Dayton signs Executive Order 13-10, replacing and updating Pawlenty’s order, adding language about “Providing for Consultation, Coordination, and Cooperation” with Native Nations.
  • April 4, 2019, Walz signs Executive Order 24-10, replacing and updating Dayton’s executive order.
Inauguration photo 2019: Newly elected Gov. Tim Walz and Lt. Gov. Peggy Flanagan. Photo: Lorie Shaull

In the media release announcing their executive order, Walz and Flanagan said:

“This order ensures the State of Minnesota and the eleven tribes engage in true government-to-government relationships built on respect, understanding, and sovereignty,” said Governor Walz. “We are committed to meaningful consultation with the tribal communities in our state.” (Emphasis in original.)

The high-sounding language of “meaningful consultation” creates a reasonable expectation that Native Nations will help shape state policies that affect their people, such as proposed mine and pipeline projects.

Lack of state follow through not only undermine tribes trust, but”consultation” can boomerang on them. Say the agency “consults” with the tribe then does what it wanted to do anyway. Then the agency argues the process was “fair” because it consulted with tribes.

As heard on street, that criticism goes: “Consultation is not consent!”

Last July 29, I emailed the Governor’s Office requesting copies of each agency’s tribal consultation policy. On Jan. 14 — nearly six months later — I received a 129-page response.

Find the document here.

One thing that jumps out is that agencies didn’t use a uniform definition of “consultation.”

For instance, the Department of Commerce wrote: “Consultation may include a number of different methods with various levels of tribal government and agency staffing. This policy strives to meet a level of consultation to provide sufficient direction for the purpose of achieving outcomes which benefit both the American Indian population and the DOC.”

To quote Homer Simpson: “Can you repeat the part where you said about the stuff?”

The Department of Commerce wrote: “Consultation emphasizes trust, respect, and shared responsibility. It is an open and free exchange of information and opinions among parties, which leads to mutual understanding and comprehension.”

There’s no mechanism where tribes can say: “Stop! We weren’t consulted.”

State agencies can’t do everything tribes request, but it can do a better job of publicly demonstrating how tribal consultation makes a difference.

To that end, the Minnesota State Legislature passed law July 1 codifying tribal consultation. It creates a uniform and stronger definition of “consultation.”

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. … Formal meetings or communication between top agency officials and the governing body of a Minnesota Tribal government is a necessary element of consultation … [Emphasis added.]

CHAPTER 14–H.F.No. 9, MN 2021 Special Session

Two agencies — the departments of Revenue and Education — had updated their policies based on the 2021 law. As of Jan 14, other agency plans were based on the Walz/Flanagan executive order. Undoubtedly, those agencies are updating their plans.

Below, find commentary on tribal consultation policies for three key agencies — the MPCA, the DNR and the PUC.

Minnesota Pollution Control Agency (MPCA)

The MPCA’s three-page tribal consultation policy is dated September, 2013. (It was based on Gov. Dayton’s executive order and hasn’t been updated since.)

It’s a painfully bureaucratic, using many words to say little.

It defines the consultation as a four-step process: Identification, Notification, Input, and Follow Up. The “follow up” is creating an administrative record of tribal comments, a fairly weak commitment.

In May of 2020, Healing Minnesota Stories asked the MPCA how its tribal consultation policy was shaping the agency’s decision making on Enbridge Line 3. The response was short, vague, and disappointing. In full, it read:

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.

Still curious. What meaningful consultation took place and how did it affect the MPCA’s decisions, if at all?

Department of Natural Resources (DNR)

The DNR’s eight-page tribal consultation policy is dated June 30, 2019. The goals for DNR’s policy include:

  • Documenting communications with Minnesota Tribal Nations on conservation, resource protection, and land management.
  • Providing a rapid response protocol for sensitive and potentially escalating issues.
  • Holding an annual consultation with the governments of Minnesota Tribal Nations.

The DNR’s rapid response protocols define how to respond when there’s a “disagreement or contention between Minnesota Tribal Nations and other stakeholders.”

The language has nothing explicit about how Tribal Nations will be engaged in resolving disputes. The policy does direct the DNR Division and Regional Directors to conduct briefings for the Commissioner’s Office and assist “in developing talking points and the necessary communication plan.”

Comment: Sounds more like damage control. Talking points don’t resolve conflicts.

From what’s available publicly, the DNR didn’t provide a “rapid response” to Enbridge’s controversial dewatering permit amendment, which flew under the radar.

Minnesota Public Utilities Commission (PUC)

The PUC adopted its seven-page tribal consultation policy Dec. 12, 2019 and revised it it March, 2020.

This was actually a surprise. The Walz/Flanagan executive order didn’t require the PUC, a quasi-judicial body, to comply. The PUC wrote: “… the Commission is determined to honor the spirit of the order while performing its duties, to the extent possible.”

It starts out:

The Minnesota Public Utilities Commission (PUC) seeks to foster and facilitate a positive government-to-government relationship with federally recognized Tribal Nations in Minnesota. The Commission acknowledges that we are on ancestral indigenous lands, and the continuing existence of colonialism. The Commission also acknowledges that the understanding of our place in history should inform our engagement with indigenous, sovereign Tribal Nations.

It’s a tough read. Five Native Nations — Red Lake, White Earth, Leech Lake, Mille Lac and Fond du Lac — intervened at the PUC in the Enbridge Line 3 case. All initially opposed the project. Two tribes ultimately dropped their opposition, but not out of support for the project. They were trying to make the best of bad options.

Treaty rights were raised on multiple occasions around Enbridge Line 3. The PUC decided it didn’t need to understand treaty rights in order to make a decision, as if states didn’t have to follow treaty rights, the supreme law of the land.

Knowing that, it’s hard to take the PUC policy seriously, even though it was approved after the Line 3 decision.

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