Bob Ferguson, the attorney general of Washington, has released his 2021 legislative agenda. The requested legislation includes a bill that would self-impose notice requirements to Washington tribes before initiating a project or program that would implicate tribal rights. The legislation “requires that the Attorney General obtain free, prior, and informed consent before initiating programs or projects, under his or independent authority, that affect tribes, tribal rights, and tribal lands.”

In the release announcing the proposed regulation, Attorney General Bob Ferguson stated:

“In furtherance of strengthening partnerships between Indian tribes and my office, I am introducing legislation requiring my office to achieve free, prior and informed consent before initiating a project or program that directly and tangibly affects Indian tribes, rights, tribal lands and sacred sites. This will ensure that it is a policy that will remain in effect, regardless of who the Attorney General is in the future.”

In terms of the practical effect of the legislation, the Washington “Attorney General’s Office must refrain from filing any litigation against a tribal government or tribal-owned business without first engaging in meaningful consultation to resolve the dispute, provided that doing so does not violate the rules of professional conduct.” The bill would go into effect on July 1, 2022, and in addition to the notice and consent requirements, would direct the attorney general to host an annual meeting with all tribes located in Washington with the goal of “ensuring strong government-to-government relationships, promoting and sustaining greater communication, and identifying opportunities to collaborate on areas of mutual interest.”

Senate Bill 5298 is supported by the tribes with Lower Elwha Klallam Chairwoman Frances Charles stating, “Attorney General Ferguson made a meaningful and historic step towards recognizing and honoring the full sovereignty of Washington’s Tribes.”

The bill was introduced by five Democrats on January 20, 2021 and is scheduled for a February 3, 2021 hearing in the Senate Committee on Labor, Commerce & Tribal Affairs. This legislation is important to notions of tribal sovereignty and self-determination for Washington’s 29 federally recognized tribes, but does not request nor require consensus from tribes.

Troutman Pepper will continue to monitor this legislation and further developments in this area.