Attorney Jennifer S. Baker’s Native News Network Article: Meaningful Consultation between American Indian Tribes and US Government
The standard for consultation with Indigenous Nations is described as “government to government,” and that standard must not be treated lightly. The duty to engage with tribes in this manner stems from treaties and the Constitution, and it has been expanded upon through court decisions and Executive Orders.
According to Executive Order 13175, federal agencies “shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.” This requires each agency to have an “accountable process to ensure meaningful and timely input by tribal officials” when engaging in tribal consultation.
Because consultation must be “meaningful,” there must be a reasonable number of parties involved so that each Indigenous Nation has a sufficient opportunity to express its unique views and concerns and the federal agency officials are able to focus specifically on the dialog with that Nation rather than jotting down a few notes and calling the next number in line.
The idea of a dialogue is key, consultations are not listening sessions, and they should not be treated as such.
The federal officials participating in a consultation must wield considerable influence and authority within the agency in order for the consultation to be meaningful, and should be delegated some degree of decision-making authority for purposes of the consultation.
The United States government does not send lower level staffers to participate in international government to government negotiations, and it should not do so in tribal government to government consultations either.
Indigenous Nations must be treated with the same degree of respect as other foreign nations. This also means that the logistics and agendas for consultations should not be established unilaterally. Times, locations, and agendas for these meeting should be mutually agreed upon.
In light of the fact that the federal agency is initiating the consultation as a result of its obligations, the fact that the proposed action is very likely something that could potentially have a negative effect on the consulting tribe, and the fact that the United States has considerably greater resources at its disposal than tribes do, it is reasonable for these consultations to be held within the consulting tribe’s territory and at a time convenient for the participating tribal officials.
Consultation can only be meaningful if the Nations involved have access to all relevant and necessary information. Tribal officials cannot be expected to make decisions that will affect their Nations when full impact of a proposed undertaking has not yet been determined.
Yet this is what the State Department is currently asking tribes to do. A significant portion of the lands at issue have not yet been surveyed, so the extent of potential damage to historic, cultural, and sacred sites is unknown.
Consultation about the effect on such sites is meaningless when such sites have not yet been identified.
State Department officials have acknowledged receiving numerous public comments that identified the failures in the tribal consultation process during its review of TransCanada’s first Presidential Permit application which was filed in 2008. Those comments should have been utilized by the agency to remedy its shortcomings during its current review of the pending Permit application, but when asked how its approach to consultation has changed since it received those comments, State Department officials could not provide an answer.
In a 2009 memorandum, President Obama declared that his Administration “is committed to regular and meaningful consultation and collaboration with tribal officials.” Form letters and brief long distance telephone calls are a far cry from the type of collaboration to which President Obama has committed his Administration. Likewise, mass meetings that require tribal officials to travel great distances upon short notice with federal bureaucrats who have no decision making authority cannot fulfill an agency’s consultation requirements.
The permit for the Keystone XL pipeline is still undergoing agency review. It is now up to the State Department to decide whether to stay its errant course, or whether it will stand behind President Obama’s commitment and fulfill its legal obligations to Indigenous Nations.