President Joe Biden is looking to make good on a promise that every president since Bill Clinton has formally offered, in some shape or form: to uphold the sovereignty of tribal nations. If he actually follows through, it could change the face of land rights, conservation, and drilling battles across the nation.
The executive memorandum issued by the White House earlier this week announced that it would be a “priority” for the administration to ensure a thorough consultation process on future economic and extractive projects that intersect with Native communities and their lands and waterways. It’s a sensitive topic: American domestic production of natural gas, oil, and minerals has come at great cost to Indian Country. The objections of affected tribes have mostly been ignored. From Navajo Nation to the Shoshone-Bannock Tribes to Alaska Native villages, the federal government has partnered with corporations to use lands on or abutting sovereign territory to retrieve its desired materials, be it fossil fuels, water, copper, uranium, or any number of lucrative resources.
The plan outlined in Biden’s memo to remedy the cycle of systemic arrogance will begin with a series of reports that each Cabinet agency will be required to submit to the Director of the Office of Management and Budget. These reports, per the memo, will need to lay out how their offices will follow another, 21-year-old executive order, signed by President Bill Clinton. To put it in plain terms, Biden wants his underlings to write him an essay about how they will stop doing the bad things they have done for decades. It’s a good start, but it would be a disastrous end goal.
Clinton’s Executive Order 1375 was a fairly straightforward document. As he wrapped his final months in office, he decided it was time to “establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.” That order came six years after another, similarly cosmetic, order, No. 12898, which required all federal agencies to consider the environmental justice impacts of any future infrastructure projects or tribal land grabs.
These were both useful and progressive policies, and direct results of the growing political influence of tribal nations in D.C. What these tribal governments and their communities wanted—and were owed as sovereign entities—was to have a say as to what happens on their lands, as opposed to the tried-and-true American method of take now and say sorry later.
Like many great plans, these directives were undermined by the actual actions of the federal agencies. In 2016, the Government Accountability Office conducted interviews and collected comments from 100 tribes, seeking to understand how well these orders were being followed by 21 federal agencies. To nobody’s surprise, the GAO’s subsequent report, published in April 2019, found these agencies were still routinely failing to contact tribes during the correct times in the permitting process—ideally before a project is started or formally approved—if they were contacting them at all. Of the 21 agencies reviewed, only five had policies in place that formally required them to contact any affected tribal governments.
During Biden’s remarks on his separate executive actions to address racial equity, the president made sure to note that part of achieving those goals had to include steps “to reinvigorate the consultation process with Indian tribes.” Libby Washburn, a Chickasaw Nation citizen and the White House Domestic Policy Council’s special assistant for Native American affairs, told Indian Country Today that Biden’s memo is a signal of the administration’s commitment to “regular, meaningful robust consultation with tribal leaders.”
While improving consultation will be crucial, there’s little reason to believe this, on its own, would fix the flaws that have persisted for decades—or that any temporary improvement would outlast this administration. Even for agencies that consult tribal nations, all too often these consultations are seen as a box to check, rather than a crucial step in determining whether a project should be pursued. In the case of the San Carlos Apache Tribe, the tribal government’s leaders testified before Congress numerous times asking it not to approve a copper mine at Oak Flat, land that has been part of their traditional ceremonies. Such opposition also appeared in the Department of Agriculture’s Draft Environmental Impact Statement. And yet the mine was still approved in the Trump administration’s waning hours.
Tribal nations have faced this pattern for centuries. Only in the past two decades has the government actively identified it as a problem in need of solving, and so far, no serious solutions have been presented. The task ahead for the Biden administration is to install a system of consultation and consent that holds both this and future administrations accountable in the likely case that it fails to fulfill its promise. One way to achieve this is to pursue a federal policy of free, prior, and informed consent, or FPIC.
An FPIC policy was recently undertaken by Washington state Attorney General Bob Ferguson, who, in May 2019, announced that the A.G.’s office would be required to “obtain free, prior and informed consent before initiating a program or project that directly and tangibly affects tribes, tribal rights, tribal lands and sacred sites.” As pointed out in a piece published in October 2019 by the Brookings Institution, FPIC is “a more rigorous standard than that of consultation,” because it requires the express approval of a tribal government, as opposed to just a series of mandatory meetings.
In a post–Standing Rock world, in which Indigenous rights are finally recognized as a key step in addressing the climate crisis, Native leaders and thinkers aren’t the only ones proposing measures like FPIC anymore. The Green New Deal, as drawn up by Senator Ed Markey and Representative Alexandria Ocasio-Cortez—who participated in the Standing Rock protests—contained an FPIC mandate. So, too, did (to varying degrees) the Indian Country platforms offered by Senator Elizabeth Warren and Julián Castro during their campaigns for the 2020 Democratic presidential nomination. Biden’s Indian Country platform made no such promise, only going as far as to assure Native voters that he would “promote robust and meaningful consultation with Tribal Nations.”
FPIC would not be a permanent policy solution. Tribal government leaders, like those of any government, are susceptible to the same short-term promises that extractive companies have used to woo members of Congress. And that’s in addition to the rampant attempts at the legal subversion of consent mandates these same companies have employed both here and abroad. Writing in a 2019 position paper for the NDN Collective, Dr. PennElys Droz (Anishinaabe/Wyandot) noted that across the world, governments and corporations have, “co-opted ‘consultation sessions,’ and other means of obtaining ‘just enough’ Indigenous participation to claim FPIC, often using tactics designed to manipulate, divide, and undercut the intelligence and vision of our people.” And still, in the United States, such a measure would be a vast improvement over having federal agencies making a symbolic phone call before drilling away.
The president’s memo and broader promise to Indian Country matters, of course. It’s the right thing to do. It’s also a prudent call, given that it was just last summer that the federal government’s failure to uphold its treaty with the Muscogee (Creek) Nation publicly bit it on the ass via the Supreme Court’s landmark McGirt decision. But as with any promise by the federal government to finally, seriously, no, actually we really mean it this time do right by Indian Country, Biden’s memo, like the others before it, should be greeted with a dose of historical awareness and realism. Not just tribal leaders but anyone worried about new drilling projects and the current climate crisis should celebrate this memo. Then they should immediately ask the White House to do more than merely recommit to long-since-broken promises.
