Posts in category: Published Works

ABA House of Delegates Resolution 108 affirms that civility is a foundation for democracy and the rule of law and calls upon “all government officials and employees… to strive toward a more civil public discourse in…the administration of the affairs of government.” The Report supporting passage of Resolution 108 defines civil public discourse as an engagement that encourages people to vigorously, but responsibly, debate the choices facing a community through deliberative dialogue, respectful communication, and informed public decision-making.

The frequent failure by the federal government to conduct adequate consultations with Native American communities before undertaking decisions or embarking on actions that may impact them has contributed to irreparable human rights violations, grave economic injustice, and violent social conflicts. In response to this tragic history, President Joe Biden issued a Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships within days of taking office.1 The Memorandum reaffirms Bill Clinton’s Executive Order 13175 requiring that all executive departments and agencies engage in regular, meaningful, and robust consultation with tribal officials in the development of federal policies that have tribal implications2 as well as Barack Obama’s Memorandum of 2009 that requires each federal agency to prepare and periodically update a detailed plan of action to implement Executive Order 13175.3

Unlike the earlier Clinton and Obama consultation initiatives, Biden’s effort is noteworthy for categorically acknowledging that “American Indian and Alaska Native Tribal Nations are sovereign governments”. Otherwise, it shares its predecessors’ deficiency in limiting consultations to federally recognized tribes and completely excluding Native Hawaiians. Similarly, it ignores the fact that consultation is a collective right of Indigenous peoples that should be inclusive of a wide cross section of the community and not narrowly restricted to elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.4 It also provides no means for compelling federal agencies to engage in meaningful consultations. The latter omission can be easily remedied by adopting the provision found in the Requirements, Expectations, and Standard Procedures for Effective Consultations with Tribes, or “RESPECT” Act introduced in the U.S. House of Representatives in May 2021 that allows tribal governments to seek judicial review of a determination made by any federal government agency.

The Biden administration should also consider international legal principles when devising a new federal consultation process. International Labor Organization Convention 169 on Indigenous and Tribal Peoples requires that governments engage in “prior consultations” with Indigenous and tribal peoples in any endeavor that may impact their lives and the lands they occupy or otherwise utilize.5

For its part, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) requires the “free, prior, and informed consent” of Indigenous peoples whenever any activity or project has a significant impact on them and/or their way of life.6 This means “that the relevant consultations should not be a mere formality, but, rather, should be conducted in good faith and with the objective of finding a common agreement.”7 The term free “implies that the process of consultation should be conducted in the absence of any type of coercion and pressure”; prior suggests “that consultations should take place before undertaking an action or implementing a project”; and, informed “means that Indigenous peoples should receive satisfactory information in relation to the relevant measure or project.” 8 Free “also implies allowing sufficient time for the engagement process to occur, so that Indigenous communities do not feel rushed, or believe that the process was mere window-dressing.”9

The inter-American human rights system monitors, promotes, and protects human rights in all 35 member countries of the Organization of American States (OAS), including the United States. Although the U.S. has never accepted the jurisdiction of the American Court of Human Rights in San José, Costa Rica, nevertheless it is significant that the most authoritative body within the inter-American human rights system has “held that the duty of States to consult Indigenous peoples must now be regarded as a general principle of international law” and, in the case of large-scale development or investment projects, governments “have a duty to not only consult with Indigenous peoples, but also to obtain their free, prior, and informed consent.”10

A 2010 report by the Inter-American Commission on Human Rights provides guidance for ensuring that the collective interest of an Indigenous community does not prevail to the detriment or exclusion of individual members.11 The report recommends that all members of a community should be fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or collectively.12

For a new Federal consultation process to have any hope of facilitating genuine consensus building, all federal government officials and employees involved in such dialogue must acknowledge and respect the sovereignty and self-governance of the American Indian and Alaska Native Tribal Nations. Equally as important, the entire process must be adequately funded by the federal government, including providing sufficient training for all participating federal government officials and employees in the body of U.S. law collectively known as “Federal Indian Law” that includes treaties, statutes, executive orders, administrative decisions, and court cases. Undoubtedly, the most critical factor for any consultation to be effective, however, is for the process be conducted in a spirit of mutual civility that encourages deliberative dialogue, respectful communication, and informed decision-making.

ENDNOTES

1 Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships (The White House, January 26, 2021). Available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/

2 Executive Order No. 13175, Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 (November 6, 2000). Available at: https://www.govinfo.gov/content/pkg/CFR-2001-title3-vol1/pdf/CFR-2001-title3-vol1-eo13175.pdf Such policies include regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes. (Section 1(a))

3 Presidential Memorandum on Tribal Consultation (The White House, Office of the Press Secretary, November 5, 2009). Available at: https://obamawhitehouse.archives.gov/the-press-office/memorandum-tribal-consultation-signed-president

4 Martin Scheinin & Mattias Àhrén, Relationship to Human Rights, and Related International Instruments, in JESSIE HOHMANN & MARC WELLER, EDS., THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY 67 (Oxford University Press 2018).

5 International Labour Organization, Indigenous and Tribal Peoples Convention No. 169, 27 June 1989, available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169

6 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, resolution adopted by the General Assembly on 13 September 2007, A/RES 61/295, available at: https://undocs.org/A/RES/61/295

7 Mauro Barelli, Free, Prior, and Informed Consent in the UNDRIP, in JESSIE HOHMANN & MARC WELLER, EDS., THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY, supra note 4, at 248.

8 Id. at 250.

9 AMY K. LEHR, INDIGENOUS PEOPLES RIGHTS AND THE ROLE OF FREE, PRIOR AND INFORMED CONSENT 14 (United Nations Global Compact 2014).

10 Mauro Barelli, Free, Prior, and Informed Consent in the UNDRIP, in THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY, supra note 4, at 257-258.

11 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR ANCESTRAL LANDS AND NATURAL RESOURCES 107 (OAS 2010).

12 Id. at 107. The requirement of full participation is not met whenever: members of a community have not been afforded a full and effective role in the selection, authorization or mandate of those who act on behalf of the community; the corresponding claims are promoted by a particular band, clan or segment of the community; or appropriate consultations among the members of the entire community are not carried out at the moment of adopting substantial decisions affecting the rights or interests of the community. Id. Note 76, at 107.

What a Meaningful Tribal Consultation Process Should Look Like

The United States of America has a long and sordid history of egregious human rights violations committed against Indigenous peoples that includes physical and cultural genocide as well as forcible removal and usurpation of tribal lands. Even today, many Native American communities find themselves exposed to toxic pollution emanating from energy and mining projects operating on nearby federal property. This contamination jeopardizes water supplies and contributes to inordinately high rates of asthma, cancer, and other serious health maladies among Native Americans.

Recognizing the U.S. government’s frequent failure to adequately and effectively confer with sovereign tribal nations on federal policy matters that affect them, Joe Biden promised during the 2020 presidential campaign to create a robust consultation mechanism that would be consistent across all federal agencies and meaningfully engage tribal nations if he were elected president. Within days of taking office, President Biden issued the Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships.

In addition, a bill called the Requirements, Expectations, and Standard Procedures for Effective Consultation with Tribes (RESPECT) Act was introduced in the U.S. House of Representatives on May 28, 2021.(1) The act would, among other things, provide comprehensive codification of the federal government’s consultation process with Native American communities as well as offer the ability to compel federal agencies to engage in meaningful discussions.(2)

Building on Earlier Initiatives

Executive Order 13175, which President Bill Clinton signed on November 6, 2000, serves as a foundation for the Biden administration’s efforts. The order was designed to “establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.”(3) Such policies include “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes.” In addition, federal government agencies are required to have an accountable process to ensure meaningful and timely input by tribal officials.

When establishing federal standards, agencies should respect tribal self-government and consult with tribal officials as to the need for federal standards. As a general rule, no federal agency should promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation, consulted with tribal officials early in the rulemaking process.

Nothing in Executive Order 13175 grants tribal officials any type of a veto power over federal regulations, proposed legislation, and actions. In fact, section 2(a) emphasizes that American Indian tribes are “domestic dependent nations” under United States protection even if the right of native tribes to self-government is also acknowledged.

Noting that “[h]istory has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results,” the Obama administration issued a Presidential Memorandum on Tribal Consultation in 2009 directing all federal government agencies to develop and periodically update a detailed plan of action — following consultation with Indian tribes and tribal officials — for complying with Executive Order 13175.(4)

The biggest shortcoming with both Executive Order 13175 and the subsequent Obama memorandum is that neither offers any guidelines as to what constitutes adequate and effective consultation. In addition, current federal agency consultation policies — when they even exist — remain poorly coordinated, are largely an afterthought, and can vary, compelling tribes to master the idiosyncratic methods of different federal government agencies.(5) Furthermore, neither the order nor the memorandum permit any type of judicial review that would give tribal nations the ability to compel federal agencies to engage in consultations, or to hold them accountable if they fail to do so.

Biden’s memorandum issued on January 26, 2021, is notable for underscoring that “American Indian and Alaska Native Tribal Nations are sovereign governments” and the White House pledges to make “regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.”(6) Otherwise, the provisions are very similar to those found in the 2009 Obama memorandum. There is the same limitation on judicial review in that nothing in the Biden memorandum is intended to “create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”

Making Tribal Voices Heard

Based on International Labour Organization Convention 169 on Indigenous and Tribal Peoples(7) and the United Nations Declaration on the Rights of Indigenous Peoples,(8) as well as the guidance provided by the Inter-American Human Rights System,(9) a meaningful and robust consultation process should require that federal agencies:

1. Consult with actual or potentially impacted American Indian and Alaska Native communities in good faith by, among other things,

Respecting traditional decision-making structures;

• Providing all relevant information promptly and in a manner that accounts for language and other potential barriers to effective engagement;
• Providing the community with adequate time to make determinations; and
• Not taking advantage of power imbalances.

2. Conduct culturally appropriate consultations before any type of government action occurs, including the issuance of a regulation, legislation, or administrative act such as the issuance of a permit or license;

3. Carry out an environmental and social impact assessment prior to the commencement of any large-scale project or activity;

4. Include the community in the design of any impact assessment, including seeking input on what should be examined;

5. Obtain, as a result of consultations, and maintain through subsequent engagement the “free, prior, and informed” consent of the relevant American Indian or Native Alaska community. This means that consent previously given can subsequently be revoked; and

6. All agreements and understandings arising from any consultations should be committed to writing and signed by all the participants.

Under international human rights law, consultation is part of the collective rights of Indigenous peoples. (10) This can create tensions between respect for the human rights of individuals versus those of the whole community. Any robust consultation must therefore ensure that the process is inclusive and not limited to the narrowly defined category of stakeholders such as that found in Clinton’s Executive Order 13175 and the subsequent Obama and Biden memoranda, which limit consultations to elected or duly appointed officials of native tribal governments or authorized intertribal organizations.

A 2010 report by the Inter-American Commission on Human Rights provides guidance for ensuring that the collective interest of an Indigenous community does not prevail to the detriment or exclusion of individual members. The report recommends that all members of a community should be fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or collectively. (11)

Conclusion

The most effective way to ensure that robust consultations with American Indian and Alaska Native tribal nations become a regular and meaningful obligation for federal government agencies is to permit these nations the right to bring legal action in federal courts for non-compliance. Unfortunately, the Biden administration’s 2021 memorandum does not provide for the right to sue the United States government, its entities, or its officers, employees, and agents for the failure to carry out meaningful discussions. Accordingly, if this shortcoming is not redressed at the executive level, it underscores why Congress needs to approve the RESPECT Act.

The Biden administration can also show that it is genuinely committed to making respect for tribal sovereignty and self-governance an administration priority by accepting that American Indian and Alaska Native tribal nations retain the sovereign right to veto any federal policy or activity that detrimentally impacts them.

Notes

In no other region of the world have as many countries ratified International Labor Organization Convention 169 – requiring that governments consult Indigenous communities before approving projects that may detrimentally impact them – as Latin America, but human rights due diligence standards adopted by companies involved in investment projects are proving much more effective in guaranteeing adequate and effective consultations rather than government action. This is true even though ILO 169 requires that governments consult with local communities before giving the green light to investment or development projects that affect Indigenous lands, natural resources, and water supplies. 

• Neither Canada nor the United States has ratified ILO 169, and they were among only four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when it came up for a vote in the UN General Assembly in 2007, which endorsed the “free, prior, and informed consent” principle. Colombia was the only Latin American country not to fully embrace the UNDRIP.

Despite widespread ratification of ILO 169 and endorsement of the UNDRIP, Latin America is plagued by social conflicts involving Indigenous peoples who feel they were never adequately consulted. The most infamous example was in 2009 at Bagua in Amazonian Peru, when the administration of President Alan García used lethal force to counter protests by Indigenous peoples opposed to legal changes that facilitated energy, mining, and agricultural concessions on their lands. The violence resulted in the deaths of 34 people (mostly policemen) and hundreds of injured. Many of these social conflicts have delayed the completion of major energy and mining projects throughout Latin America for years, sometimes forcing their abandonment or the revocation by governments of previously granted concessions. The direct financial losses incurred by businesses have been huge, not to mention the damage to corporate branding image.  

• One reason for persistent conflicts throughout Latin America is that ILO 169 offers no definitive answer as to what happens if an Indigenous community vetoes a proposed project. Presumably that wouldn’t occur if the consultation were effective. But ILO 169 is vague on the precise consultation process a government must follow, leading to wide national variations as to who must be consulted and how. Although the UNDRIP implies that Indigenous peoples have the right to reject a project, its provisions are not considered legally binding by most governments unless specifically incorporated into domestic law. Even in Bolivia, one of the few countries where “free, prior and informed consent” is the law of the land, this did not prevent the administration of President Evo Morales from going ahead with a highway through the TIPNIS reserve in eastern Bolivia over the objections of its Indigenous inhabitants.

The growing importance of Environmental, Social and Governance (ESG) criteria in corporate decision-making, including the adoption of internal human rights due diligence policies and practices, may finally lead to effective consultation mechanisms that accept the notion that Indigenous peoples have the final say in either approving or rejecting a project that threatens their way of life or will permanently displace them from ancestral lands. For one thing, good faith consultation with Indigenous peoples is now a recognized international human right. More importantly, businesses are not absolved by a government’s failure to fulfill the obligation to consult Indigenous peoples on projects affecting them.

• Multilateral lending agencies such as the Inter-American Development Bank have developed performance standards that include a consent requirement that must be adhered to by any company seeking their financing for investment projects that may impact Indigenous people. In addition, equity investors with investment risk management concerns are emerging as important guarantors of corporate consultation and consent with Indigenous communities, particularly in the natural resource extraction industry.
• If the ESG criteria weren’t a big enough stick for private sector compliance, there is also an emerging trend in Europe and at the UN to make human rights due diligence principles mandatory for businesses. For example, France passed a law in 2017 that requires companies with a substantial presence in the country to adopt reasonable vigilance measures to allow for risk identification and for the prevention of severe violations of human rights directly or indirectly from the operations of the companies and their subsidiaries.  Businesses that do not meet their vigilance obligations are liable for damages incurred by victims. These emerging legal obligations encompass not only the foreign operations of corporations but increasingly extend to the entire production and supply chain.