By Elizabeth Kronk Warner, Kathy Lynn, and Kyle Whyte for EDRBlog.org
This blog post is the first of a two-part blog series and is based on the authors’ forthcoming article on the same topic published by the U.C. Davis Law Review. We are posting a summarized version of the article in two parts with U.C. Davis Law Review’s and the authors’ permission.
As climate change and fossil fuel extractive industries threaten Indian country and burden many Indigenous communities with risks, mitigating the negative impacts on tribal sovereignty, health, and cultural integrity demands consultation between tribes and the federal government. Yet, this is an area where the law fails to provide adequate guidance to parties who should be engaging or are already engaging in tribal consultations. The law, both domestic and international, may require that consultation occurs, but leaves parties to determine themselves what constitutes effective and efficient consultation. To help fill the void and lessen the likelihood of adversarial proceedings and negative outcomes, we have developed guidance for consultative parties as they attempt to navigate this uncertain terrain including seven principles which we will explore in the second part of this blog series in two weeks.
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A basic review of the existing law demonstrates what little guidance exists. While true that legal claims exist to require the federal government to engage in government-to-government consultation with tribes, very little information is given as to what that consultation should look like and which sovereign, whether the tribe or the federal government, gets to dictate the process of consultation. Further, existing domestic and international law provides little as to the scope of such consultation or when it is triggered. Given the law does not fully answer the question of what effective consultation looks like, we suggest that ethics literature, especially the literature emerging from Indigenous studies, is helpful in framing normative judgments regarding effective consultation.
From a moral perspective, consultation can be linked to the norm that all parties should have a chance to give their free, prior and informed consent to the actions of any other party whose actions may impact them. In the literature on ethics, “free,” “prior” and “informed” consent are taken as being defined in certain ways. While there are a range of legal and other purposes for consultation, morally speaking, consultation can be understood as one process or strategy for fulfilling the general moral duty of consent. Further, emerging Indigenous studies literatures pertaining to ethics provide critical insights about how consent relates to partnership, kinship, and mediation.
In the ethics literature, free simply means non-coerced or that they are not under external pressure to consent or dissent; prior means that the actions have yet to be performed and there is a chance to stop them in advance; informed means that the parties have all the facts and possibilities in front of them when they weigh and deliberate the costs and benefits of consent, or decide to dissent or request more time to form a response. In Indigenous studies that work to define these terms, given the long histories of experiencing domination from states and societies such as the U.S., are often modified and strengthened. “Free” can also include that tribes should not be pressured to consent or dissent owing to disadvantages in governance capacities that may have accrued over the years due to the consolidation of U.S. power and control over tribes. “Prior” means that tribes are able to deliberate with, give feedback and even co-design at the early stages of the design of the actions themselves. Prior here means “at conception.” “Informed,” as is common in the medical ethics literature, must also include culturally-relevant means of expression and sufficient time and access to expertise for analysis of any information relevant to consent.
The idea of consent, as a moral norm, suggests a relationship between the U.S., tribes, and other parties that would flow much more like a partnership than a formal consultation, and where tribes’ veto (the right to say “no”) to any actions that would impact them would be honored. Certainly, consent and veto have been debated regarding Indigenous rights and international law. Our view as scholars is to begin with the strongest moral foundations of consent, which includes Tribal self-determination in response to actions that affect their members’ lives, lands, cultures, and freedoms.
We will demonstrate this concept of consent in part two of this blog series focusing on two examples which will explore ineffective consultation and effective consultation: the Dakota Access pipeline controversy and the Northwest Forest Plan. We are very hopeful that these examples and strategies will prove helpful in developing meaningful and constructive consultation moving forward.
Elizabeth Kronk Warner is the Jefferson B. & Rita E. Fordham Presidential Dean at the S.J. Quinney College of Law at the University of Utah, as well as a Professor of Law. She is also an enrolled citizen of the Sault Ste. Marie Tribe of Chippewa Indians. We would like to thank Casey Bond, a third-year student at the S.J. Quinney College of Law at the University of Utah, for his excellent research assistance with this article.
Kathy Lynn is a faculty researcher in the University of Oregon’s Environmental Studies Program and coordinator of the Pacific Northwest Tribal Climate Change Project.
Kyle Whyte is Professor of Environment and Sustainability and George Willis Pack Professor at the University of Michigan School for Environment and Sustainability. He is an enrolled member of the Citizen Potawatomi Nation.