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Changing Consultation

Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Vol. 54

December 2020

Page 1127

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. The legacy of the law’s inability to provide effective guidance has generated numerous cases of litigation and mutual hard feelings, a glaring example being how the legitimacy of consultative activities was debated and misunderstood in the Standing Rock Tribe’s resistance against the Dakota Access Pipeline. This Article hopes to fill the void by turning to other disciplines — ethics and Indigenous studies — for guidance on how effective consultation may be achieved.

To accomplish this, the Article begins with an examination of relevant domestic and international law. While true that claims exist under both domestic and possibly international law to require the federal government to engage in government-to-government consultation with tribes, very little guidance 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’s inability to fully answer the question of what effective consultation looks like, the Article suggests 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 some way. Impacts include harms or opportunities to share in any future benefits. 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 add additional moral requirements to these definitions.

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 would have veto rights (the right to say “no”) to any actions that would impact them. To demonstrate this concept, the Article presents two examples: the Dakota Access pipeline controversy, an example of ineffective consultation, and the Northwest Forest Plan, an example of deliberate approaches to monitor the effectiveness of consultation. Based on these examples combined with the ethics literature, the Article concludes with specific strategies that parties might employ to ensure successful tribal consultations. Beyond filling the void created by current federal law, the Article therefore constitutes a valuable and unique addition to the existing scholarship in its interdisciplinary approach, and guidance to parties engaged in tribal consultations.

 

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