Technical Assistance Toolkit Tribal Technical Assistance Guidance

In recent years, state agencies have sought to build relationships with tribes by expanding grant eligibility to tribes and enacting tribal policies. However, some tribes may not have access to the information and resources needed to develop competitive applications or engage in state policy processes. In recognition of these barriers, state agencies are increasingly providing technical assistance (TA) to support tribes in applying for and implementing state funding. While tribal applicants may face many of the same obstacles as other under-resourced applicants, special considerations, including California Native American tribes’ unique status and the historical relationship between the State of California and tribes necessitate a separate, tailored discussion. This section is meant to help inform the design and effective implementation of TA related to efforts with tribes. While this guidance does not impose mandatory requirements, it can support state agencies in evaluating options, making key decisions, and avoiding pitfalls when developing effective tribal TA programs.

This section begins by providing a brief overview of the historical and legal relationship between tribes and the state followed by a list of core principles to guide tribal TA initiatives. It also provides information on the specific factors to consider when communicating with tribes, analyzing needs and gaps, and selecting a contractor to work with one or more tribes. Finally, this section offers a list of key resources and a glossary of terms.

Background and Framing

California’s Unique Tribal Diversity

There are more federally recognized tribes in the lands now called California than almost any other state and, according to the 2010 United States Census, California has the largest Native American population in the country. California tribes vary considerably in population size, with communities ranging from a few to several thousand people. Tribal languages are varied, with as many as 135 distinct dialects spoken by California Native Americans prior to the arrival of Europeans and their descendants. Some tribes have lands held in trust by the federal government for their benefit and are recognized as governments by the federal government, while others do not have trust lands or federal recognition. Tribes may have many, few, or no staff, which influences the degree to which they are able to carry out critical functions and provide services to their members. Similarly, tribal economies vary widely, with some tribes holding business enterprises including gaming, hotel, and recreation operations, while others have limited to no economic enterprises. Tribal governments rely on these enterprises, as well as grants and federal funding, for revenue to build infrastructure and provide services to their members. Tribal government entities and organizations, such as health clinics, housing authorities, and labor and business development consortia, vary in size, focus, and tribal representation and membership. Keeping this diversity in mind is crucial when discussing tribes and tribal needs in the context of state programs.

State’s Historical Action Toward Tribes

Prior to the American era both the Spanish Empire and Mexican rule negatively impacted California tribal communities by relocating families, communities and lifeways and subjecting many Native people to oppressive conditions. Diseases, which had not been seen on California shores before, decimated many Native people. Following this period and upon the discovery of gold, decades of state-sanctioned violence, exploitation, and dispossession of tribal communities marked the period during which California was incorporated into the United States. Shortly after California’s admission into the United States in 1850, the state carried out a series of militia expeditions in an effort to “wage a war of extermination”¹ against Native Americans. These actions coincided with legislation that facilitated removing California Native Americans from their traditional lands and placing them in indentured servitude to white settlers.²

Tribe’s Unique Status

During the United States’ founding and expansion into tribal homelands, the federal government established processes that tribes could choose to go through to be recognized as governments, a formal relationship between tribes and the federal government, and lands to be held in trust for tribes by the federal government. The federal government took these actions through treaties ratified by Congress, executive orders, Congressional acts, federal statutory process, and the federal courts. In the mid-twentieth century, the federal government enacted a series of policies aimed at terminating federal obligations to tribes, including disbanding tribal governments and land ownership. One of these policies, the California Rancheria Act of 1958, specifically targeted California rancherias—a trust land category unique to California and designed to address the widespread homelessness of California Native people once dislocated from their lands, stripping them of their federal recognition and land. After a series of lawsuits, including a prominent class action suit by several California tribes,³ the United States later restored federal recognition to several California tribes, but not all of them.⁴ Non-federally recognized tribes gain recognized status through a number of federal actions, but the recognition process remains lengthy and complex.

The State of California does not have a process or authority to recognize tribes, and therefore, there are no state recognized tribes. In California, there are federally recognized tribal governments, non-federally recognized tribes, and individually-recognized California Native American people (see the glossary below for definitions of these terms).

Under federal law, federally recognized tribes are treated as domestic dependent nations.⁵ Therefore, tribes’ inherent sovereignty as nations is acknowledged, but limited, under federal law. As sovereign governments, federally recognized tribes generally are not subject to state regulation or authority, with some exceptions, most notable being the delegation of federal criminal jurisdiction on tribal trust lands to the state through Public Law 83-280.⁶In addition, federally recognized tribes enjoy sovereign immunity from suit, meaning a state generated lawsuit against a tribe likely will be dismissed on jurisdictional grounds unless certain circumstances exist, such as a limited waiver of the tribe’s sovereign immunity.⁷

Shift in Relationship between Tribes and the State

In 2011, Governor Edmund G. Brown, Jr. issued Executive Order (EO) B-10-11 that established the Governor’s Office of the Tribal Advisor and required all state agencies and departments to encourage early communication and consultation with California tribes in developing legislation, regulations, rules, and policies on matters that may affect tribes and their communities. The EO provided a broad policy goal and general guidance to encourage cooperative relationships between tribes and state agencies.

In 2014, the California Legislature passed Assembly Bill 52 which amended the California Environmental Quality Act (CEQA) to require lead agencies to consider the potential impacts that a project subject to CEQA’s requirements would have on tribal cultural resources and to consult with tribes concerning these impacts. Generally, the state requires formal consultation with California Native American tribes about:

Issues of local government General Plan development and amendment (Senate Bill 18, 2004);
Project impacts to tribal cultural resources; and
Development of legislation, regulations, rules, and policies that may affect tribal governments and related communities.

In addition to instituting a process for the consideration of tribal impacts, consultation requirements created a mechanism to build positive and enduring relations with tribes.

In 2019, Governor Newsom issued EO N-15-19, reaffirming EO B-10-11 and adding a formal apology to California Native Americans for “many instances of violence, maltreatment, and neglect” committed by the State of California against California Native American tribes in the early days of statehood. The EO established a Truth and Healing Council that will be responsible for examining and producing a written report of the historical relationship between California Native Americans and the state “in order to clarify the historical record of such relationship in the spirit of truth and healing.” In September 2020, Governor Newsom released a statement of Administration Policy on Native American Ancestral Lands to encourage state entities to seek opportunities to support California tribes’ co-management of and access to natural lands that are within a California tribe’s ancestral land and under the ownership or control of the State of California, and to work cooperatively with California tribes that are interested in acquiring natural lands. These actions mark a step forward in the state’s commitment to acknowledge past wrongdoings and build relationships with tribes in California.

Building on these steps, state agencies are developing tribal policies, employing tribal liaisons, and creating tribal programs. Increasingly, tribes are eligible applicants for state funding programs. However, some tribes may not have access to the information and resources needed to develop competitive applications, and some may rely on consultants to apply for and manage projects. TA can support tribes and other under-resourced communities in applying for and implementing state funding and help to build their capacity to take advantage of state funding opportunities in the future as well. While tribal applicants may face many of the same barriers as other under-resourced applicants, the unique status of tribes requires additional, specific considerations in the design and implementation of TA.

Core Principles

The principles listed below are broadly applicable to your agency’s work and coordination with tribes, including any TA efforts.

Trust-Building and Dedicated Resources

The state’s historical mistreatment of tribes has important ramifications for the present-day relationship between tribes and the state. State leaders, officials, and program managers need to know about, consider, and honor this history when building relationships with tribes. Working relationships with tribal members are not built around one project or program; they must be forged over time, through many respectful and accountable interactions across many projects and programs. Making space to hear directly from tribes and maintaining continuity of your agency’s personnel are two important components of the trust building process.

Meetings to get to know one another can help build trust before diving into program implementation. Additionally, instead of telling tribal governments about a program or TA opportunity and how it will benefit them right away, it is best to first approach tribes through a format in which you take an active listening role to better understand the needs, challenges, and other considerations for program design.

However, keep in mind that repeated outreach solely focused on relationship building can waste tribes’ limited resources and erode relationships. In the case of a turnover of tribal leaders, staff, or other representatives, it may be necessary to repeat this process in order to rebuild relationships with these new tribal government representatives.

Turnover of state officials, staff, and TA providers requires tribes to repeat the early phases of relationship building, which can be time-consuming and erode trust. In addition, changes in personnel can result in repeated changes in program direction due to differences in personality, philosophy, or experience; this can jeopardize your ability to develop working relationships with tribes and achieve beneficial results. One way to ensure staff continuity is to create dedicated positions, such as tribal liaisons or offices, that can coordinate between tribes and your agency’s staff on relevant programs and policies.

Cultural Humility and Understanding the State’s Legal and Historical Relationship

In building relationships with tribes and pursuing tribal program development, state agency staff must gain an understanding of tribes’ respective histories, cultures, and formations. It is important to note that each tribe is unique, and so blanket “one-size-fits-all” approaches could undermine efforts to develop positive working relationships. Many resources, including tribal government websites, provide information that can help you gain historical and cultural background on specific tribes. It is important to do this research before engaging with tribes, not simply to make conversation, but to understand how it may affect your efforts to build relationships. For example, tribal members may express anger, frustration, or resentment towards state officials due to the state’s historical ill-treatment of tribes. Understanding this history and meaningfully demonstrating transparency, accountability, and follow-through speaks volumes when developing relationships with tribes.

Understanding the legal relationship between tribes and the state is also critical to building respectful relationships with tribes. To begin, you might review state laws and internal policies regarding consultation with tribes. In addition to tribal government websites and guidance on consultation, the Governor’s Office of Tribal Affairs and California Native American Heritage Commission websites contains additional information and resources that you may find helpful. See the Resources section below for additional information regarding the state’s relationship with tribes.

Acknowledge and Appreciate Tribes’ Connection with their Lands and Cultural Practices

For tribes and related communities, connection to the land is synonymous with their culture, history, and identity as Native American people. Tribal cultural resources, including cultural landscapes – a major focus of the AB 52 consultation process – are heavily informed by tribes’ connection to their ancestral territories. European settlers, who did not hold this core value, “could not fathom the intensity and depth of the Indians spiritual attachment to their territories.” The policies and actions of state and local governments – which have regulatory roles over lands subject to their ownership or jurisdiction – do not typically align with this core value. This lack of alignment is often the root of misunderstandings and disputes between tribes and agency staff. Therefore, all agency program staff and TA providers must have a general understanding of tribal connections to the landscape before beginning any engagement.

Free, Prior, Informed, and Ongoing Consent for Use of Traditional Knowledge

The state is increasingly seeing the value of employing tribes’ traditional knowledge, particularly as part of the toolkit to combat the causes and effects of climate change. At the same time, many tribes are wary to share this information based on experiences wherein governments misused traditional knowledge or shared it without permission. In order to continue to build trusting relationships with tribes, you must obtain the free, prior, informed, and ongoing consent of the tribe or tribes you are working with before accessing, using, or sharing their traditional knowledge through your work. The use of traditional knowledge should be carried out in partnership with tribes and should ensure the protection of confidential tribal data.

Engagement with Tribes: Communication, Information Sharing, Outreach, and Consultation

Tribes’ unique status necessitates communication structures and processes that reflect a relationship of respect. Many state agencies have adopted tribal consultation policies and tribal engagement strategies that detail when and how to communicate with tribes. You should first refer to these policies when seeking to understand the appropriate level of tribal engagement for your program.

Engagement with tribes typically falls into the following categories:

Consultation

Consultation is a formal process, with a clear protocol, among tribal officials and state agency officials. Many agencies have a tribal consultation policy that directs when and how tribal consultation should take place, in accordance with any relevant state statute. Additionally, many tribes have their own tribal consultation protocol that provide steps in the consultation process, timelines, and/or points of contact, for agencies to incorporate into the consultation process. Consultations take place at the executive level, not the management, staff, or TA provider level. It is not appropriate to have TA providers leading tribal consultation efforts on behalf of government officials. However, such providers may have a supporting role.

The terms consultation and communication are often confused in use. Communications with senior management that are decision-makers of their respective programs or offices are not consultations, and requests to communicate are not always requests for formal consultation. When the request for engagement is coming from a tribe, it is important to understand the intent of the engagement rather than focusing on the term used.

Communication or Information Sharing

Communicating or sharing information with tribes includes basic correspondence, such as sending notices about opportunities or updates, but may include more complicated transactions such as sharing data, which may have attached confidentiality provisions. Basic communications to share information or make minor decisions with tribes can be informal and conducted with all levels of agency management and staff. This process does not necessarily require involving high-level officials unless there is a need to negotiate confidentiality agreements.

Outreach

Outreach lies somewhere between information sharing and consultation. While not a formal process, outreach may focus on relationship building or providing opportunities for discussion and feedback about a state agency’s policy or program. A state-tribe listening session is a form of outreach but does not constitute tribal consultation. A tribe may decide to request a consultation as a result of discussion that arises from outreach.

When conducting outreach or engagement with tribes, clearly communicating the intent, purpose, and levels of engagement proposed is very important. In addition, due to the vast diversity of California Native American tribes, designing and implementing effective tribal TA programs requires state agency representatives to demonstrate understanding and patience throughout outreach, engagement, and program implementation.

Developing a Tribal TA Initiative

The following sections (Analyzing Needs and Gaps, Selecting a Contractor, and Communications Materials) focus on the specific factors you should take into consideration when developing a tribal TA initiative.

Analyzing Needs and Gaps

One of the clearest ways to assess program barriers is to ask tribes directly, through surveys and conversations with tribal government leadership and staff. However, if agency staff do not have existing tribal relationships, reaching out may yield few meaningful results. One option is to send a letter or email directed to the top tribal leader(s) as well as to any relevant departments or staff. Another option is to ask for time on the agenda of a regularly scheduled meeting of the tribal officials. You should also seek to coordinate with others at the state who have built those relationships and may have already had similar conversations, so as not to burden tribes with duplicate requests. Many departments have tribal liaisons or tribal advisory committees with members who can help you share information and provide introductions to the appropriate tribal leadership or staff. Keep in mind that each tribe may have unique barriers and needs, so it is important to collect information regarding as many tribes as possible. If your program seeks to reach tribes of a certain size or type, or in a certain geographic area, you should collect information regarding those particular tribes.

The State Tribal Liaisons Workgroup, convened by the Governor’s Office of Tribal Affairs and attended by tribal liaisons from a variety of agencies, can provide advice on how to seek feedback from tribes, as well as provide information on barriers already identified. The most appropriate way to access this forum is through your agency’s tribal liaison. Coordination with your agency’s liaison ensures that tribes are not approached by different agencies with duplicative requests and will allow your program to build stronger relationships with your designated tribal liaison.

When creating any TA program, distinguish between which barriers TA can address and which are matters of program design. A common program design barrier faced by tribal applicants is that eligibility requirements (related to planning, zoning, and environmental review, for example) designed for local government applicants often don’t apply to tribal governments. Such oversights reflect a lack of understanding of tribal sovereignty on the part of state agencies. Another common program design issue is a lack of agency or department process for contracting with tribes. For a more detailed list of best practices for removing barriers within a grant program that may make it less accessible to tribes, see the Removing Barriers section.

However, TA can address many barriers faced by tribal applicants, such as:

Limited staff resources or reliance on contractors to apply for and implement grant funds;
Limited access to matching funds;
Lack of established relationships with local, regional, or academic partners; and
State assessment tools that rely on data with significant gaps for tribal communities.

TA can support tribes in many ways, for example:

Augmenting staff capacity to apply for and implement funds;
Helping tribes identify opportunities to secure matching funds;
Bringing together and coordinating partners for grant application or administration; and
Assisting with data collection tools or processes to ensure that agencies have access to data that accurately demonstrates tribal needs.

Selecting a Contractor

As with any TA program, you should first weigh the pros and cons of providing TA through a third party vs. agency staff (see the table on the Contracting Guidance page). Should you decide to provide TA through a third party, consider the skills, relationships, and affiliations necessary to successfully carry out the scope of work. State selection of contractors should carefully weigh the contractors’ experience engaging with and delivering services to tribes, as well as any partnerships and/or affiliations. Even when TA is provided by a third party, agency staff should stay engaged in the work to build their own relationships with tribes.

Relationships with California Tribal Governments

A key consideration when selecting a contractor is whether the contractor has existing relationships with tribal governments in California. Prioritizing contractors who have built relationships and a strong reputation with tribes may facilitate the work. If your program seeks to reach tribes of a certain size or type, or in a certain geographic area, consider these factors when evaluating the relationships a contractor has already established.

Understanding of Contracting Process between Tribes and State

Consider the contractor’s experience navigating the legal and policy relationship between tribes and the state. For example, some state grant programs require federally recognized tribes to provide a limited waiver of sovereign immunity for state-funded projects. The decision whether to include this requirement is made on an individual program basis, but the requirement is often a barrier for tribes and there may be other options to ensure that these projects are successful, depending on legal requirements of the source funding. Tribal lands and jurisdictions can add layers of complication to grant applications designed for local government planning and zoning processes, including potentially requiring federal action⁸ and therefore triggering the National Environmental Policy Act (NEPA). A contractor providing application assistance should have enough familiarity with these topics to help tribes navigate requirements and build time into the application process to address them.

In order to assess these core competencies, it may be helpful to ask contractors to provide previous work experience and references from tribes as well as any current tribal affiliations. Contractors that have been hired by tribes to provide relevant services and have strong references are more likely to successfully execute the scope of work than contractors that have worked tangentially with tribes and did not build lasting relationships.

Activities with Federal Partners – Understanding Relationships and Roles

Many federally recognized tribes work closely with federal agencies and have established relationships with those partners. These relationships are often built on federal agencies’ Trust Responsibility towards tribes as well as principles of self-governance and Public Law 93-638 on contracting and compacting (see the glossary for definitions of these terms). If the activities of TA providers intersect with that of federal partners, it can also help to have a contractor that understands the relationships and roles of tribal, state, and federal partners, so that they can identify gaps or areas of misalignment, as well as opportunities to leverage resources and additional obligations that may arise due to federal involvement.

Communications Materials

If creating communications materials as part of a TA initiative, you should gear them specifically to California tribes or tribal-serving organizations. The relationship between the state and tribes is distinct from the state’s relationships with local governments or other organizations, and these materials can demonstrate that your agency has taken tribal considerations into account by providing tangible examples of tribal projects or covering key requirements specific to tribal applicants. If the materials are created by a third-party TA provider, state staff can continue to use and distribute these materials as they carry out their own tribal outreach and relationship building after the end of the TA contract.

Acknowledgements

The California Strategic Growth Council (SGC) staff worked in partnership with tribal liaisons from a number of state agencies to inform the content of this document. SGC is profoundly grateful for their support. SGC thanks the following staff and organizations for their indispensable partnership:

Malinda Dumisani, (formerly) California Environmental Protection Agency
Thea Rittenhouse, California Department of Food and Agriculture
Thomas Gates, (formerly) California Energy Commission

SGC also thanks the organizations and state agencies that provided insightful public comments on this document, helping SGC to provide stronger and more useful guidance, including:

Governor’s Office of Tribal Affairs
California Air Resources Board
California Coalition for Rural Housing
California Department of Social Services, Office of Tribal Affairs
California Energy Commission
Caltrans Native American Cultural Studies Branch
Caltrans Native American Liaison Branch
California State Water Resources Control Board
National Indian Justice Center
Prosper Sustainably, LLC

Resources

The following list of resources, while by no means exhaustive, provides a starting point for learning more about the state’s relationship with California Native American tribes.

State Agency Offices and Workgroups

Several offices within state government may be able to point you toward resources or provide recommendations as you design a tribal TA program. The list below provides a starting point:

Governor’s Office of Tribal Affairs
California Native American Heritage Commission
State Agency Tribal Liaisons Workgroup
Tribal Advisory Committees at various state agencies (e.g., California Department of Social Services Office of Tribal Affairs, Caltrans Native American Liaison Branch; Tribal Advisory Committees at CalEPA, Department of Water Resources, California Energy Commission)
United States. Bureau of Indian Affairs, Pacific Region

Documents and Websites

Resources on Consultation

Glossary

California Native American tribes

Per state law, a California Native American tribe is a Native American tribe located in California that is on the contact list maintained by the Native American Heritage Commission. This list includes both federally recognized California tribal governments listed on the most recent notice of the Federal Register, as well as many non-federally recognized California tribes.

Federally Recognized and Non-Federally Recognized Tribes

Federally recognized tribes: Tribal entities that are recognized as having government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation. This includes eligibility for federal programs, services, and protection because of their relationship with the federal government.

Non-federally recognized tribes: Indigenous communities which, although they existed prior to the formation of the United States, are not currently recognized as governments by the federal government. Many non-federally recognized tribes are still acknowledged as tribes by the State of California, for the purposes of consultation. These tribes are not considered state-recognized tribes, as California does not have an official process for state recognition.

Native American

The United States Census defines a Native American as “a person having origins in any of the original peoples of North and South America (including Central America) and who maintain tribal affiliation or community attachment.” For the purposes of this guidance, California Native Americans refers to people Indigenous to the area of California. It should be noted that many Native American people now residing in California have origins in tribes outside of the state. Additionally, the term “American Indians” is still regularly used in legal context to describe Native Americans, however the term Native American is more broadly used in California.

Public Law 83-280

Congress enacted Public Law 83-280 (commonly referred to as PL-280) in 1953, which transferred criminal jurisdiction to prosecute tribal members on tribal lands from the federal government to certain state governments, including California. The law additionally allows certain civil litigation that had previously come under tribal or federal court jurisdiction to be handled by state courts. The law does not grant states regulatory power over tribes or lands held in trust by the United States; federally guaranteed tribal hunting, trapping, and fishing rights; basic tribal governmental functions such as enrollment and domestic relations; nor the power to impose state taxes. These states also may not regulate matters such as environmental control, land use, gambling, and licenses on Federal Indian reservations.

Public Law 93-638 Contracting and Compacting

The Indian Self Determination and Education Assistance Act of 1975 encoded the principles of tribal self-determination and self-governance by making it so that tribes and tribal organizations could acquire increased control over the management of federal programs that impact their members, resources, and governments. These agreements are referred to as 638 compacts and contracts. Contracts and compacts are very similar. Self-Determination contracts are authorized under the 1975 Indian Self Determination and Education Assistance Act. Self-Governance compacts are made possible by 1994 amendments to the 1975 Indian Self Determination and Education Assistance Act.

Rancheria

Rancherias are lands that were purchased by the federal government in the early 1900’s for homeless Native Americans in Central and Northern California. Rancherias are found only in California. Rancherias are ‘tribal lands’ (see definition below).

Reservation

Reservations are an area of land reserved for a tribe or tribes under treaty or other agreement with the United States, executive order, federal statute, or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of a tribe. Some reservations are the remnants of a tribe’s original land base.  Others were created by the federal government for the resettling of Native American people forcibly relocated from their homelands.  There are few reservations in California.

Reservation lands are considered ‘tribal lands’ (see definition below).

Self-Governance

Self-governance is a concept intertwined with the concept of sovereignty and refers to a nation’s inherent right to determine its own destiny and the means of realizing that destiny through self-defined governance. The right to self-governance for tribes was encoded in the Indian Self Determination and Education Assistance Act of 1975, and means that tribes have the right to determine their social, economic, political and cultural future without external interference.⁹ Components of self-governance, often stated in tribal constitutions, can include: territory; membership; structure and function of government; government leadership including methods of election, management of assets; and related tribal laws, ordinances, codes and policy.

Sovereignty

The concept of sovereignty, broadly, is the inherent right of a people to determine their social, economic, and political governance. Under United States federal law, federal recognition of this sovereignty for federally recognized tribes enables them to exercise jurisdiction and governmental powers over activities and tribal members within their respective territories.

Tribal Ancestral Territory

A tribe’s ancestral territory (sometimes also referred to as aboriginal territory) is the geographic area that a tribe occupied prior to European contact. Adjacent tribal territories often overlap, and these overlapping areas can be mutually agreed to or disputed among neighboring tribes. Various records provide maps depicting California Native Ancestral territories.¹⁰ However the boundaries provided in these sources are subject to debate and may have changed over time. Some tribes generally adhere to the boundaries as defined in the handbooks, others provide ancestral boundary definitions in their constitutions, and other tribes choose to not define their territories.

Tribal Consultation

Consultation is broadly defined as the meaningful and timely process of seeking, discussing, and carefully considering the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement. Consultation between government agencies and Native American tribes should be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation should also recognize the tribes’ potential needs for confidentiality with respect to places that have traditional tribal cultural significance. State guidance additionally describes consultation as “an ongoing process, not a single event. The process should focus on identifying issues of concern to tribes pertinent to the cultural place(s) at issue […] and on defining the full range of acceptable ways in which a […] government can accommodate tribal concerns.” As detailed in the introduction of this guidance, several state laws mandate tribal consultation under varying circumstances. You should follow your agency’s tribal consultation policy to determine when consultation is needed, and the scope and type of consultation that should be done.

Tribal Lands

‘Tribal lands’ has the same meaning as the term ‘Indian country’ in United States Code , title 18, section 1151, that states: “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”

For more information on determining what constitutes tribal lands, see the Federal EPA webpage, Definition of Indian Country.

Tribal-Serving Organizations

A tribal-serving organization is an organization that does not represent the entirety of a tribal government but serves tribes or Native people. These may include government entities such as tribal housing authorities and tribal health clinics, or entities such as tribal businesses, consortia, associations, and non-profits.

Trust Responsibility

The trust responsibility is the legal principle that the United States government has a responsibility to support tribal self-government and economic prosperity, stemming from the federal government’s treaty guarantees to protect tribes and respect their sovereignty. This includes the provision of services required to protect and enhance tribal lands, resources, and self-government, as well as economic and social programs to support Native people.

Endnotes

Peter H. Burnett, “Governor’s Annual Message to the Legislature” (1851), in Journals of the Senate and Assembly of the State of California, (San Francisco: G.K. Fitch & Co., and V.E. Geiger & Co., State Printers, 1852), 15.
Kimberly Johnston-Dodds, Early California laws and policies related to California Indians (Sacramento, CA: California State Library, California Research Bureau, 2002), 1173.
Hardwick v. United States, No. NO. 5:79–CV–1710–JF (N.D. Cal).
California Rancheria Act, Public Law 85-671, U.S. Statutes at Large 72 (1958).
Cherokee Nation v. Georgia, 30 US 1(1831).
An Act to confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of action committed or arising on Indian reservations within such States, and for other purposes, Public Law 83-280, (1953).
Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S.751 (1998); Michigan v. Bay Mills Indian Cmty, 572 U.S. 782 (2014).
In cases where federal action may be necessary, a state agency should closely review federal and tribal laws that may apply.
Self-Governance: A New Partnership (Lummi Nation Self-Governance Communication and Education Project, 1995)
William C. Sturtevant, Handbook of North American Indians Vol. 8, no. 9 (1978). Alfred Kroeber, Handbook of the Indians of California (Berkeley: U.C. Berkeley, 1926)