Nothing less than consent: Consultation and the diminishment of Indigenous rights
David E. Wilkins
David E. Wilkins and Hank Adams
The concepts of consent and consultation are receiving a lot of attention these days. Although lately consultation has gained the upper hand in the parlance of intergovernmental relations, consent has a storied history as a vital political doctrine, tracing back to the origins of Native nations and the earliest days of Indigenous/Euro-American interactions. While we all think we know what it means to be consulted or to give consent, these familiar ideas are being reworked and sometimes used as weapons by those who seek to weaken and destroy Native sovereignty and self-determination.
Consent and consultation are often used interchangeably but they are far from equivalent terms. Consultation is a formal process rooted in communication. It is about sharing information and listening to differing perspectives — an exchange that is one of the required mileposts on the road to meaningful consent. Consent, according to the Oxford Dictionary, is the act of giving approval or coming to an agreement in opinion or sentiment. Treaties are good examples of mutual consent between an Indigenous nation and the federal government. Consent has foundational heft as the most essential principle on which Indigenous social and political systems were based. It is also the bedrock for American democracy which is premised on the notion of the consent of the governed — by the people and for the people.
Consent, unlike consultation, involves taking responsibility for an outcome which, in effect, becomes ‘the doing’ of the consenter, even though they may not have initiated the action, according to Roger Scruton. You could give consent without first going through the process of consultation, but consultation, in and of itself, is not a complete act, it’s just a tool. We have seen many examples of state, local and federal governments and corporations claiming consultation fulfills their obligation to tribes. That somehow sending an email to a tribal leader, whether a response is received or not, is the equivalent of consultation. Even more galling is that this box-checking is often used as a substitute, not just for the process of consultation, but for the act of consent.
In the context of Indigenous/State relations, consent is a fundamental political principle and is generally understood as constituting the core legitimacy of a political body. The idea being that the institutions and actions of government officials must be based on the free will of those engaging in political activity.
The principle of Indigenous consent was visible in diplomatic relations between Native nations and European powers and later the federal government, dating back to 1608 and continuing through the early 1900s. And for the nearly 400 treaties that were ratified by the United States government, the central element of consent remains a binding obligation on both parties. Consent is also embedded in the 1787 Northwest Ordinance, which established the Northwest Territory and created a process whereby new territories could be incorporated into the U.S. There it was declared, “the utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent..."
Historically, consent was theoretically supposed to work to the benefit of all parties. Article 1 of the Kansas Treaty of 1825 declares that the “Chiefs and Headmen of the Kansas Nation … for themselves and their nation, do consent and agree that the Commissioner of the United States shall, and may survey and mark out a road…”, thus granting access to the fledgling United States government. A decade later, the United States in the removal treaty of 1834 promised the Chickasaw, “the Government of the United States, hereby consents to protect and defend them against the inroads of any other tribe of Indians, and from the whites…” In 1898, twenty-seven years after treaty making ostensibly ended in 1871, the Lakota people of Rosebud signed an agreement with James McLaughlin, the United States Indian Inspector, in which they gave “permission and consent” for members of the Lower Brule community to reside on Rosebud land.
Finally, consent is also manifest in several articles of the 2007 United Nations Declaration on the Rights of Indigenous Peoples. For example, Article 19 shows the more appropriate relationship and progression between consultation and consent when it declares the following: “States shall consult and co-operate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
Consent, for all its power, is not flawless. In the context of Native/state relations this principle and its promises have also been twisted and violated time and again by federal policymakers whenever it was deemed politically, economically, or culturally expedient. Hundreds of treaty provisions, for example, have been nullified by federal lawmakers. And Congress has enacted countless laws, like the infamous Public Law 83-280, on August 15, 1953, which for the first time gave five states criminal jurisdiction over Natives and non-Natives on reservations — with a few exceptions — and allowed every other state to wield similar jurisdiction if they chose to do so.
This profound violation of tribal sovereignty and territorial integrity was authorized by Congress and gifted to the states without Native consent, despite the fact that President Dwight Eisenhower, in signing the measure into law, said he had “grave doubts as to the wisdom of certain provisions” because the law did not require Native consent. Eisenhower deemed that flaw “unfortunate,” and he expressed hope that the next session of Congress would adopt an amendment to the law requiring Native consent before being subjected to state jurisdiction. Such a consent provision was finally added with the adoption of the Indian Civil Rights Act in 1968.
Notwithstanding the inadequacies of consent’s protective cloak over Indigenous rights, it remains a fundamentally important principle and serves to remind federal and state officials that a nation’s democratic character requires permission from the people. Today, however, consent seems to have been relegated to a back row seat in comparison to consultation in the way intergovernmental relations are being practiced. When consultation has been stripped of its meaning and reduced to the process of informing and replaces the act of consent, the power of Native sovereignty and self-determination is irreparably harmed.
Consultation is a far more modern concept that was initially used to define a respectful process of meaningful engagement between tribes and other governments. Federal officials first implicitly endorsed consultation in 1968 when President Lyndon Johnson announced his administration’s intent to abandon the pursuit of the termination of Native nations and replace the despised policy with approaches promoting Native self-help, self-development, and self-determination. He reasoned that “Indians must have a voice” in programs and decisions that mattered to them.
In 1989, more than a decade after the federal Boldt Decision ended the violent “fish wars” of the 1960s and 70’s by affirming treaty rights, leaders in Washington State, chose a new path that emphasized consultation rather than litigation or coercion. Governor Booth Gardner worked with the leaders of the twenty-six Native federally recognized nations to craft the Centennial Accord, a document that institutionalized a commitment to government-to-government relations rooted in cooperation, negotiation, and arbitration. Washington’s accord transformed and continues to guide the dealings between the now twenty-nine federally-recognized tribes and the state. With the signing of the 2004 Out-of-State Accord, Governor Gary Locke and leaders of federally recognized tribes located in Oregon and Idaho with treaty-reserved rights in Washington came to a similar arrangement. The success of these accords has provided a model for tribal-state relations in other states, including Oregon, New Mexico, Arizona, California, Minnesota, and Wisconsin.
While the process of consultation was obviously understood and practiced in these situations, it was not explicitly defined and codified in federal Indian policy until President Bill Clinton’s 1994, “Memorandum on Government-to-Government Relations with Native American Tribal Governments.” That document declared, “Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, tribal governments prior to taking actions that affect federally recognized tribal governments. All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals.” It appeared to be a positive step toward establishing and improving communications in a bureaucratic world where tribes were often excluded, either deliberately or through negligence, from decision-making though some legal scholars, such as Jason Searle in his 2017 article, Exploring Alternatives to the "Consultation or Consent" Paradigm, see the origins of the elevation of consultation over consent in this executive order and its 2000 revision.
Unfortunately, genuine engagement is becoming rarer and what has emerged over the last several years is an empty, distorted version of consultation, whereby outside governments, corporations, and other entities, claim to have consulted with tribal governments when, in actuality, they have done little more than inform them of an intent to act without input from or notice. Obviously, telling someone that you plan to do something is not the same as consulting them in the creation of that plan. Yet, those who seek to extract resources or obtain access through tribal lands with little regard for treaty rights or respect for the integrity of tribal nations’ inherent sovereignty are using the term in just this way. They disingenuously claim to have consulted with Native peoples while diminishing the entire process.
Those tribal leaders who attempt to engage in a true process of consultation are often penalized. Those seeking to exploit them can claim to have accepted Native input and then proceed to ignore it, merely checking a box in the event of legal action. This is a far cry from the original intent of meaningful inclusion and respectful partnership. Indian Country has been gaslighted and abused by those working under the cover of this bad-faith definition.
Consultation that is not wedded explicitly to securing meaningful and informed Native consent is inherently flawed and inadequate as a tool that can truly benefit the complicated nature of Native/State relations. As Native nations have learned since the Clinton years, consultation is inconsistently administered by both federal and state officials. It also tends to be a process confined in many instances to the executive branches of both the federal and state governments and thus lacks comprehensive scope. Finally, and most importantly, consultation as practiced is more procedural than substantive. This means it is inadequate and ill-equipped to acknowledge the emotional, historical, political, and legal concerns, rights, and understandings of Indigenous peoples.
Indigenous leaders would be well advised to remember their ancestors’ deep understanding and commitment to diplomacy and remind federal, state, municipal, and corporate figures that their consent cannot be forcibly secured or consulted away. It can only be given freely, openly, and before any alteration or reduction of their lands, inherent rights, or political status.
David E. Wilkins is professor of American Indian Studies at the University of Minnesota. He is author and editor of numerous books on Indigenous politics and governance. Wilkins is a citizen of the Lumbee Nation of North Carolina.
Hank Adams is president of the Survival of American Indians Association of Franks Landing, WA. SAIA is presently creating a "Billy Frank, Jr. Legacy Heritage Center." Adams (Fort Peck Assiniboine-Sioux) headed a treaties task force for the congressional American Indian Policy Review Commission, 1975-77, and is known as "an activist/historian."