'Free, Prior and Informed Consent' on the world stage
Tribal advocates push for principle at 21st session of United Nations Permanent Forum on Indigenous Issues.
The United Nations Permanent Forum on Indigenous Issues (UNPFII) is meeting this week and next in New York City about a plethora of matters affecting Native populations worldwide. Theme: “Indigenous peoples, business, autonomy and the human rights principles of due diligence, including free, prior and informed consent.”
Top line: This is the first time the forum is meeting in person since the Covid-19 pandemic began. There was no meeting in 2020, and it was virtual in 2021. It is the 21st session of the forum. Follow on Twitter at #UNPFII and @UN4Indigenous and on UN Web TV.
Major topic for U.S. tribal delegations: Getting United States’ policymakers to recognize the concept of free, prior and informed consent (FPIC) over issues related to tribes and Indigenous peoples.
What is FPIC? The idea goes many steps beyond tribal consultation, which has traditionally been the principle that the federal government should consult with federally recognized tribes before it takes action on issues affecting them. Time and again, tribes and Indigenous citizens lament that they are not consulted on issues far and wide, from federal funding to infrastructure development to land and water rights. Native culture, health and economies suffer. Even when the principle is enshrined in governmental policy, such as through the executive memo signed by President Joe Biden soon after he came into office in January 2021, tribes — especially ones with less power and wealth — often find consultation lacking.
FPIC — a notion defined in the 2007 legally non-binding United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the U.S. supported in principle in 2010 after much procrastination and consternation — asks governments to earn tribal and Indigenous peoples’ consent before taking actions that impact them.
It’s complicated: Since the U.S. federal government already tends to do a poor job of tribal consultation — let alone consent — asking it to embolden FPIC principles may seem idealistic, if not altogether unrealistic. But it’s a discussion worth pressing, tribal advocates say. Minor progress is being achieved along the way, such as agreements from some state policymakers and from some federal officials, including U.S. executive and legislative branch members.
Bottom line: As the country’s infrastructure continues to age and as the U.S. considers new ways to combat the climate crisis, to deal with its energy needs, and to spend money on fixing and building infrastructure, tribes and Indigenous peoples simply need to have a say. That’s a no-brainer, as long as one understands that tribal governments and peoples have special status in legal and federal law and policy. But FPIC is not a no-brainer for federal and state officials who like control as it stands now.
Further: Indigenous peoples are not going away. They own lands, they have culture, they have language, they are a part of the economy. Federal and state governments have long encouraged tribal self determination and sovereignty, to the point now that some tribes work hard to prevent others from getting federally recognized.
Questions worth pondering: If tribes use tools of the federal system to shortchange other Indigenous peoples — by lobbying against their sovereignty/recognition and/or encouraging disenrollment — do they deserve to have federal and state governments to formally recognize FPIC? Is FPIC an inherent right for a tribe? Is FPIC an inherent right for individual Indigenous citizens? Are those rights always compatible? What role do tribes have in carrying out FPIC to their own citizens? Do state-recognized tribes and citizens deserve FPIC? Do disenrolled Indigenous peoples deserve FPIC?
More: How to fix the federal process of recognizing tribes and Indigenous peoples in the U.S. today, and what role, if any, does FPIC play in that formula?
Indigenous Wire is a Native-owned, reader-supported publication. To receive new posts and support our work, consider becoming a free or paid subscriber.