Posted on July 22, 2022 by Jerry Reid
Tribal “consultation” or “collaboration” frameworks vary across the country. Presidents Obama and Biden issued executive orders setting forth a consultation process for federal agencies that are developing policies with tribal implications, and several governors have likewise issued their own executive orders. Some other states have policies or guidance documents addressing this, and a small number have enacted statutes mandating some form of tribal consultation or collaboration. Maine recently became the latest such state when Governor Janet Mills signed legislation providing for tribal collaboration in certain state agency decision-making.
Maine’s new law is itself the product of collaboration among the Governor’s office and tribal leaders. Its core purpose is simply to promote respectful dialogue and improve communication between state government and each of four federally recognized tribes – the Passamaquoddy Tribe, the Penobscot Indian Nation, the Houlton Band of Maliseet Indians, and the Mi’kmaq Nation. To achieve that goal without creating a cumbersome new bureaucracy, the statute allows for the sort of flexibility that is typically associated with a policy or guidance document, while also giving the collaboration process the greater standing that comes with codification in law.
The scope of the new statute’s collaboration requirement is intentionally narrow, focusing on the issues that will matter most to tribal communities. It applies only to agency decision-making that both “substantially and uniquely” affects Tribes or tribal members, and therefore will not cover most programs and policies of general applicability. So, for example, amending water quality standards on waterbodies where Tribes have sustenance fishing rights would trigger collaboration, but amending statewide ambient air quality standards would not. The theory behind this heightened standard is that requiring collaboration on matters with only tenuous tribal implications would devalue the process and run the risk of it turning into a rote exercise rather than a meaningful engagement. Limiting collaboration to those matters with the most clear and direct tribal impacts should ensure it will be a significant occasion that the participants take seriously, and one in which their time and resources will be well spent.
The law is also written to minimize the possibility that the collaboration process itself– ironically–becomes its own source of dispute. Maine’s statute requires only that agencies adopt their own collaboration policies with a few basic elements, including notice to the Tribes, an opportunity to be heard in addition to already available public processes, and an obligation to consider the information that’s received. Draft policies must be shared with the Tribes for their comments. Beyond that, agencies are free to devise a process that fits their needs and circumstances. In this way the statute will not create a series of procedural pitfalls for the unwary, and should allow state and tribal collaborators the space to focus on the important work of problem solving and relationship building.
For similar reasons, Maine’s law does not create a cause of action or new grounds for challenging final agency action. In this respect the statute could be criticized for its lack of “teeth”, but there is something antithetical about the prospect of parties being enjoined to collaborate, and any litigation over a process intended only to promote respectful dialogue would be counterproductive.
This law is premised on the notion that real collaboration will only occur when the parties are open to and interested in working together respectfully. It assumes that creating a prescriptive and legalistic new bureaucracy would not foster true collaboration, and would likely cause more problems than it would solve. What seems most important–even essential–to success in this context, regardless of the specific procedures that are employed, is the good faith of the people involved. On that, Maine will be no different than other jurisdictions and will require sustained commitment by the responsible officials, both state and tribal, in order for its collaboration process to succeed.
Disclosure: The author serves as Chief Counsel to Maine Governor Janet T. Mills