Unchecking the box: Overcoming barriers to meaningful consultation

Intergovernmental consultation between public agencies and Tribal governments is a critical component of affirming Indigenous land sovereignty and protecting sacred sites and cultural resources in land use and decision making. However, despite the growing prevalence locally and nationally of natural and cultural resource laws that mandate government to government consultation, achieving “meaningful consultation” remains elusive. This article analyzes barriers to meaningful consultation through a case study analysis of intergovernmental consultation around cultural resources and cannabis permitting on Tribal ancestral lands in California. This study argues that cultural resource laws in general suffer from asymmetrical power relations, which are codified into policy through provisions such as “agency discretion” and unfunded mandates. We differentiate between “structural” barriers to consultation as those which embody exclusionary mechanisms of settler colonialism and “soft” barriers such as cultural differences, knowledge gaps, and relationships, all of which undermine the consultation process. Meaningful consultation requires equitable Tribal-agency relations, which depend on policies that affirm Tribal authority in land use decision making, as well as agency and Tribal capacity building, with equitable funding for Tribal staff time, Tribal-agency trust and relationship building, and agency training in Tribal culture, history, and cultural resource policy. Cultural resource laws and consultation policies that affirm Tribal sovereignty demonstrate awareness of and incorporate measures intended to eliminate these barriers.