State-Tribal Consultation Right Crystallizing

Last week, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, urged “local and state authorities in South Dakota” to address concerns expressed by the Sioux Nations regarding the impending private land sale of Pe’Sla, a sacred site of the Lakota, Dakota and Nakota Peoples, in the Black Hills. While the federal Indian consultation right is now entrenched in federal law, the Special Rapporteur’s pronouncement of a state-tribal consultation right is profound. 

The Special Rapporteur’s proclamation follows a Resolution passed by the National Congress of American Indians in March 2011, whereby NCAI resolved that much like the United States’ consultation obligations to tribes, “states and local governments [must] meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.”

Indeed, much like the international norm of indigenous consultation and the federal Indian consultation right have each crystallized through non-tribal governmental actions and proclamations, a state-tribal consultation right is forming.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe is currently writing a piece for Indian Country Today, tentatively titled, "Developing and Enforcing the State-Tribal Consultation Right." He can be reached at 206.691.3631 or