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Sovereignty Over Box Checking: Effective Tribal Consultation Leading to Consent

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Kronk Warner, Elizabeth Ann·2024·SSRN Electronic Journal
DOI 10.2139/ssrn.4827967
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Abstract

In light of the federal government’s willingness to consider new methods of tribal consultation, this article builds on previous scholarly work by arguing that the goal of tribal consultation should be consent. This conclusion is buttressed by tribal treaty language, the federal trust relationship, and the dictates of the FPIC requirement. The federal government should adopt language suggesting that consent is the goal unless not legally possible. Federal officials must be educated on tribal sovereignty, treaties, and the federal trust relationship. Consultation must begin as soon as possible in the decision-making process. Tribes should be engaged to better understand how they wish to participate in consultation. Federal officials must collaborate with their tribal counterparts in a bilateral, respectful way. And, in addition to the federal government, it may also be in the best interest of third parties, such as corporations, to assist tribes and the federal government in finding effective and meaningful consultation, as failure to do so could prove costly. Incorporating these recommendations will hopefully move us away from the broken status quo toward meaningful, legal consultations leading to consent in most instances – promoting tribal sovereignty over box-checking.

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  45. Id, 2008, which was between Newmont Ghana Gold Limited (project operator) to Newmont Ahafo Development Foundation Id. at 8 The agreement allowed the company to mine oxide ore, in exchange for compensation/ royalties and the indigenous community's consent. Finally, there is the Chinuchi Agreement from November 7, 2014 between Nemaska Lithium Inc. and Cree Nation Of Nemaska, Grand Council Of The Crees, & Cree Nation Government. The agreement allowed the company to develop and use a spodumene mine with the indigenous nation's consent. Summary of the Agreement on pgs 1-2, 300 Examples of IBAs include: The Mary River Project Inuit Impact Benefit Agreement from
  46. See supra n.131 (referring to language from agreements between the federal government and the Coeur D'Alene Tribe and Fort Berthold treaty with the Gros Ventres, Mandans, and Arickarees)
  47. 2016, Letter from Mark Ingersoll, Chairman of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians, to Acting Assistant Secretary -Indian Affairs Larry Roberts, Comment on Tribal Government Input in Federal Infrastructure Decision-making 6
  48. Thomas Andrew, 2022, Putting Civility at the Core of a New Federal Process for Consultation with Native American Communities
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  50. Thomas Andrew, 2022, Putting Civility at the Core of a New Federal Process for Consultation with Native American Communities
  51. C Michael, 2022, Tribal Consultation: Toward Meaningful Collaboration with the Federal Government, 33 Colo. Env'tl, L. J. 1, 11
  52. Id, Interestingly, the Proclamation goes on to explain that it is an expectation that the Secretaries will take into consideration the traditional and historical knowledge offered by tribes

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Authors
Kronk Warner, E. A.
Venue
SSRN Electronic Journal
Publisher
Elsevier BV
Published
2024
ISSN
1556-5068 (ISSN-L)
DOI
10.2139/ssrn.4827967
OpenAlex
W4396916123
Cited by
0
References
6
Type
posted content
Language
en
Open access
Locations
SSRN Electronic Journal (acceptedVersion)
Topics
  • Social Sciences › Law › Indigenous Peoples' Rights and Law
  • Social Sciences › Anthropology › Indigenous Cultures and History
  • Social Sciences › Law › Environmental law and policy
Keywords
tribal consultation, tribal sovereignty, informed consent, free, prior and informed consent, federal-tribal relations

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