Federal consultation with tribal nations

Under several provisions of federal and international law, the United States has a duty to consult with tribal governments and Indian peoples before engaging in conduct or making decisions that might impact tribal rights and properties.

This is a very sore lpoint in the United States thta despite legal requirements, the U.S. and federal agencies often proceed to decisionmaking and actions that do impact tribal rights without prior consultation. Or, in many instances the federal bureaucrats consider that they have “consulted” with tribes when they tell tribes what the federal agency is about to do.

Similar problems exist in Canada according to this recent news report.

Indian Country Today wrote on May 30 about Kenneth Deer’s (Mohawk) comments to the Tenth Session of the United Nations Permanent Forum on Indigenous Issues.

Mr. Deer stated that Canada and the U.S. are bound under a clause in the United Nations Declaration on the Rights of Indigenous Peoples to get “prior and informed consent” from indigenous peoples when it comes to activities on their land and person.

Deer charges that both countries are trying to wiggle out of that duty in at least two areas—genetic resources and mining.

In fact, at a working-group session for the Commission on Sustainable Development, Canada, Australia, New Zealand, and the U.S. asked that the words “free, prior and informed consent” (FPIC) regarding indigenous and local communities be deleted when it came to mining. See Earth Negotiations Bulletin.

Deer, the Mohawk Nation representative to the Permanent Forum, also noted the attempted undermining of the agreement in other arenas too. He expressed concern about Canada’s interpretation of the “C” in free, Prior and infomred consent as the “consultation” rather than “consent.”

FPIC shows up in four articles of the U.N. Declaration, which also says that any entity violating that right must provide redress.

Other international and U.S. bodies besides the Declaration refer to consent rather than consultation, he said. For instance the U.N. Committee on the Elimination of Racial Discrimination (CERD) stipulates that “no decisions directly relating to [indigenous] rights and interests are taken without their informed consent.”

Deer also stated that when the U.S. endorsed the Declaration, it too mentioned “meaningful consultation” with tribal leaders but not necessarily consent. Under that interpretation, governments and corporations could just tell the indigenous communities what they were doing and continue doing it.

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