What Will ‘Consultation’ Mean for Standing Rock?

Dina Gilio-Whitaker

By now, most of us who have been following the standoff at Standing Rock know that a federal judge denied the application for a temporary injunction to stop the construction of the Dakota Access Pipeline. And that only minutes after delivering the decision, a joint statement between the Justice Department, the Army Corps of Engineers, and Department of the Interior was issued, requesting Energy Transfer Partners to voluntarily and temporarily cease construction on the section of the pipeline opposed by Standing Rock.

And then on September 17, a US District Court judge ordered all construction stopped for 20 miles on both sides of the Missouri River at Lake Oahe for the time being.

Many people viewed the joint statement intervention as a victory that signaled decisive progress for Standing Rock’s cause. Others, like Standing Rock Sioux tribal chairman Dave Archambault, were cautiously optimistic, pointing out that it at least represents a “crack in the door.”

But let’s be clear: all the joint statement effectively does is call for a review of current laws, statutes, and practices surrounding infrastructure projects like the pipeline, relative to how they affect tribal nations. The most relevant part of the text reads:

"Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure related reviews and decisions and protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote these goals."

It sounds magnanimous, and in some respects it might represent an increased level of respect for the political relationship that exists between the federal government and Native governments. On the other hand, it might simply be a public relations ploy to temporarily calm a tense situation.

Either way, it's important to point out that in this case, there is something futile--if not potentially hypocritical and dangerous--about proposing a “new statutory framework” that accords greater respect to “tribes’ views” on these kinds of projects. The reason is that the US already has access to a set of standards that is capable of accomplishing more than this. It’s called the United Nations Declaration on the Rights of Indigenous Peoples.

Recall that it was this very administration that finally officially endorsed the Declaration, years after it was adopted by the UN General Assembly. Granted, it has been repeatedly pointed out that as a mere declaration, UNDRIP is aspirational only and not actual law, meaning that if violated, Native nations have no legal recourse in international courts. However, what UNDRIP does--something the US in theory supports--is provide strong language about “respecting” Indigenous rights.

Article 32, section 2, says that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources" (emphasis added).

In other words, by virtue of its adoption of UNDRIP, the US had already agreed to abide by the international standard of free, prior, and informed consent (FPIC) when its agency, the Army Corp of Engineers, issued the permit to the contractor, Energy Transfer Partners, for the Dakota Access Pipeline project. This process was clearly ignored.

As positive as it sounds, the joint statement unfortunately proposes the possibility of a statutory framework that falls far short of FPIC. “Ensuring meaningful tribal input” is not the same as protecting Standing Rock’s right to give their free, prior, and informed consent to the Dakota Access Pipeline project. The tribe (or other tribes) could give their input--which we already know amounts to rejecting the pipeline altogether, or at least the section of it that threatens the Missouri River, their water source--but by merely “consulting” with the tribe, the federal government leaves itself the option to legally go forward in whatever ways it sees fit, while being able to say that it gave the tribes “meaningful input.”

How does that help tribal nations? How does it empower them to protect their resources? In reality, all it does is give the government a way to make itself look like it is “respecting” tribes, when in reality it’s business as usual: do what it sees fit, regardless of how it affects Natives.

However the Obama administration advances its proposition to “consult” with tribes about any potentially new statutory framework, tribal leaders should turn to UNDRIP as a model for FPIC--reminding the administration that it has already theoretically agreed to it--as a standard for “consultation” and protecting tribal resources. They should not succumb to the temptation to believe that the US is doing them a favor by considering any kind of legislation that guarantees them anything less than that.

Dina Gilio-Whitaker (Colville) is a freelance writer and research associate at the Center for World Indigenous Studies. She was educated at the University of New Mexico and holds a bachelor’s degree in Native American Studies and a master’s degree in American Studies. Follow her blog at DinaGWhitaker.wordpress.com.

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