AG testimony: Before the American Indian Affairs Interim Study Committee, Colorado General Assembly (Sept. 26, 2024)
Chair Duran, Vice-chair Simpson, and members of the Committee, thank you so much for the opportunity to be with you today to discuss our partnership with the Southern Ute Indian Tribe and the Ute Mountain Ute Indian Tribe.
First off, let me begin by commending you and the entire General Assembly for establishing this important, and long overdue, committee. I view this panel as not only an important forum by which to build a foundation for stronger relationships between State government and the American Indian communities, but also to highlight and grapple with pressing issues and challenges that impact members of the Tribes—including as a result of the historical mistreatment they have endured—and how we can better collaborate to address those issues.
Partnering with the Tribes
In the course of this Committee’s work, you’ve likely heard of multiple legal disputes that the State is engaged in with the Tribes. As Colorado law makes me, and my staff, the lawyer for state agencies, I’m unable to comment on specific litigation or legal disputes underway.
But I will say this—I’ve always believed that government is best when it shows up, listens, and collaborates to achieve solutions. That’s a principle that guides me daily as attorney general. In working with the Southern Ute Indian and Ute Mountain Ute Tribes, we know the Tribes to be our valued partners—and I have made it a priority for the Department of Law to work with the Tribes in a way that is collaborative, open, and respectful of their sovereignty.
To that end, we are in regular contact with general counsels for both Tribes—making it a priority to always keep open dialogue on legal matters and opportunities to partner, including to find solutions to disagreements and to support and shape new policy ideas.
I’ve also been privileged to have joined the Southern Ute Tribal Council and the Ute Mountain Ute Tribal Council for regular consultations—visiting one or both Tribes each year since being in office (apart from 2020 when travel was limited due to the pandemic and we held such meetings virtually). During these consultations, it was meaningful to engage with the Tribes on a wide range of topics, including water, opioids, broadband, law enforcement, and how we can best work together.
We also recognize the importance of standing up for Tribal communities as we shape Colorado’s policies. For example, in recognition of the fact that Tribal communities are among those most impacted by the opioid crisis, we recently allocated about two million dollars to the Tribes from the state opioid settlement funds for drug treatment, recovery, prevention, and education programs. And, as another example, the Tribes are front of mind as we consider the challenges of climate change and water scarcity. We are committed to helping ensure that the Tribes will continue to receive the water to which they are entitled under existing agreements, and to ensure they have a seat at the negotiating table with other states going forward.
It is also important for me to consult the tribes when we weigh in on Indian law issues at the U.S. Supreme Court or other courts. As Attorney General, for example, I have consulted with the Tribes on our work to defend the Indian Child Welfare Act and to protect the principles of sovereignty on tribal lands, to name two examples. To serve as Colorado’s Attorney General, I take seriously the obligation to honor, respect, and advocate for the interests of our Tribal partners.
2025 Legislation
I am aware that you wish to discuss legislative concepts you are considering for the 2025 session, and look forward to visiting with you on those topics. But at the outset, I would like to single out one bill concept proposed by the Southern Ute Indian Tribe. The concept referred to as “exclusion” legislation is one I find very interesting and believe will result in better lawmaking.
Often when in litigation, if the courts are unable to decipher what the General Assembly intended by the words it used in writing our laws, judges will look to statutory construction aids to assist in deciphering what the law means. Article 4 of Title 2 of the Colorado Revised Statutes provides a repository of those construction aids that the courts rely on. The legislative proposal would add a new statutory construction aid to the list—stating that legislation and legal requirements enacted by the General Assembly are presumed not to apply to the Tribes unless the enabling legislation contains a clear expression to the contrary.
I see several merits to this proposal. For one, it ensures clarity and predictability in how laws will be applied. If the General Assembly intends to include the Tribes when legislating, it must clearly state as much in the bill. Second, it will prevent litigation. Without naming any cases or disputes, there are times when the question of whether a bill applies to the Tribes is of such import that the issue ends up in court. This bill proposal would head off such disputes by creating a clear rule to determine when legislation applies to the Tribes and when it does not. And third, most importantly, it requires the legislative process to affirmatively consider whether or not the Tribes are to be impacted, bringing the issue to the surface and encouraging lawmakers to be thoughtful and deliberative as they consider the impact on the Tribes. In turn, this will also prompt the General Assembly to more frequently reach out and collaborate with the Tribes on legislative concepts.
Our tribal partners asked me for my thoughts on this concept; and I feel it would be a sound improvement to our laws. And I look forward to supporting it in the 2025 session should it advance.
Thank you for the opportunity to join you today. I welcome any questions or items you’d like to discuss. And thank you for leading on this important work.