US State and Territorial Indigenous Consultation Laws: A Potential Strategy to Improve the Social Determinants of...

The United Nations (UN) has articulated the right to self-determination as a human right for Indigenous people; however, US states and territories have been slow to operationalize this aspect of the UN Declaration on the Rights of Indigenous Peoples. Indigenous consultation laws require all federal executive agencies to consult with tribal nations before implementing policies that have a "tribal implication," and these form the cornerstone of US efforts to implement the UN Declaration on the Rights of Indigenous Peoples. Despite these federal efforts, less is known about the degree to which state and territorial laws require consultation with Indigenous communities.

We reviewed all Indigenous consultation laws identified through a search of 50 US states, the District of Columbia, and 5 territories to provide a holistic picture of how jurisdictions have regulated Indigenous consultation efforts.

Of the 56 states, 49 (87.5%) had at least 1 Indigenous consultation law; the remaining 7 jurisdictions had none. States engaged in Indigenous consultation in various ways, generally falling into 1 of 3 categories: (1) centralized consultation facilitated through an agency or department, (2) indirect consultation through a designated commission, and (3) fragmented Indigenous consultation through discrete laws. Important gaps were identified, including the lack of a definition for Indigenous consultation, the absence of an appeal process, and the need to train state officials on existing policies.

The results provide a baseline on the degree to which US states and territories consult with Indigenous communities and can be used to identify gaps in US compliance with UN human rights mandates.