Operationalizing Free, Prior, and Informed Consent

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to create their own FPIC protocols when interacting with indigenous peoples. At present, there is an absence of FPIC protocol that has been developed by indigenous peoples themselves. A tribal FPIC law and protocol may serve as a starting point and model to actualize these rights for the development or use of culture, lands, territories and resources, and may serve to implement a portion of the UNDRIP. This article contends that indigenous peoples must develop and implement their own FPIC protocol in order to assert their human rights, and offers a model under United States law for Indian tribes to assert their sovereign and human rights without waiting for member state implementation

Operationalizing Free, Prior, and Informed Consent

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to create their own FPIC protocols when interacting with indigenous peoples. At present, there is an absence of FPIC protocol that has been developed by indigenous peoples themselves. A tribal FPIC law and protocol may serve as a starting point and model to actualize these rights for the development or use of culture, lands, territories and resources, and may serve to implement a portion of the UNDRIP. This article contends that indigenous peoples must develop and implement their own FPIC protocol in order to assert their human rights, and offers a model under United States law for Indian tribes to assert their sovereign and human rights without waiting for member state implementation

Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years. At the center of the fight are the 1851 and 1868 Treaties entered into by the United States and the Great Sioux Nation. The pipeline route, which was chosen without input from the Tribes, runs directly through the heart of treaty lands secured to the Great Sioux Nation in the 1851 Treaty of Fort Laramie, lands to which the Sioux Tribes continue to have strong cultural, spiritual, and historical ties. Furthermore, the construction and operation of an oil pipeline directly upstream from their current reservations undoubtedly threatens the Tribes’ hunting and fishing rights expressly reserved in the 1868 Treaty and affirmed in numerous subsequent Acts of Congress, as well as their reserved water rights pursuant to the Winters Doctrine. But as the Tribe and their attorneys battled for injunctive relief in federal court, the Treaties were largely absent in the pleadings and court opinions. However, with the District Court’s ruling on June 14, 2017, it appears the Treaties now present the crux of the surviving argument, presenting problems for the Court in terms of both their applicability in the face of Congress’ plenary power over Indian tribes and diminished Trust responsibility as well as the appropriate remedy for the Tribes when and if these Treaty rights are violated. As such, the case provides an opportunity to analyze the truth and lies surrounding the Constitutional place of Indian Treaties in federal courts. Article VI, Clause 2 of the Constitution states “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Known as the “Supremacy Clause,” this constitutional provision has serious implications in federal Indian law. Of particular importance is whether treaties made with Indian tribes can be considered the “Supreme Law of the Land”. The current litigation and historic indigenous uprising against the Dakota Access Pipeline, the route of which lies within recognized tribal treaty boundaries, provides a contemporary example of the limitations of Supremacy Clause. This article attempts to place the Standing Rock and other Sioux Tribes’ legal battle against the Dakota Access pipeline against the history of Indian treaties and treaty rights for a contemporary examination of federal courts application of Indian treaty rights and the limits of the Supremacy Clause to ensure Indian treaties and treaty rights be respected as the “Supreme Law of the Land

Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years. At the center of the fight are the 1851 and 1868 Treaties entered into by the United States and the Great Sioux Nation. The pipeline route, which was chosen without input from the Tribes, runs directly through the heart of treaty lands secured to the Great Sioux Nation in the 1851 Treaty of Fort Laramie, lands to which the Sioux Tribes continue to have strong cultural, spiritual, and historical ties. Furthermore, the construction and operation of an oil pipeline directly upstream from their current reservations undoubtedly threatens the Tribes’ hunting and fishing rights expressly reserved in the 1868 Treaty and affirmed in numerous subsequent Acts of Congress, as well as their reserved water rights pursuant to the Winters Doctrine. But as the Tribe and their attorneys battled for injunctive relief in federal court, the Treaties were largely absent in the pleadings and court opinions. However, with the District Court’s ruling on June 14, 2017, it appears the Treaties now present the crux of the surviving argument, presenting problems for the Court in terms of both their applicability in the face of Congress’ plenary power over Indian tribes and diminished Trust responsibility as well as the appropriate remedy for the Tribes when and if these Treaty rights are violated. As such, the case provides an opportunity to analyze the truth and lies surrounding the Constitutional place of Indian Treaties in federal courts. Article VI, Clause 2 of the Constitution states “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Known as the “Supremacy Clause,” this constitutional provision has serious implications in federal Indian law. Of particular importance is whether treaties made with Indian tribes can be considered the “Supreme Law of the Land”. The current litigation and historic indigenous uprising against the Dakota Access Pipeline, the route of which lies within recognized tribal treaty boundaries, provides a contemporary example of the limitations of Supremacy Clause. This article attempts to place the Standing Rock and other Sioux Tribes’ legal battle against the Dakota Access pipeline against the history of Indian treaties and treaty rights for a contemporary examination of federal courts application of Indian treaty rights and the limits of the Supremacy Clause to ensure Indian treaties and treaty rights be respected as the “Supreme Law of the Land

Plenary Energy

An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending legislation that would amend the 2005 Energy Policy Act in a manner that would allow tribes greater autonomy in developing their mineral resources without necessarily compromising the trust relationship. But, as this article suggests in using the Keystone XL Pipeline as a case study, tribes should not rely on Congress to act in the interest of tribal sovereignty unless they can attach this interest to a strong political impetus. Invoking both the United Nations Declaration on the Rights of Indigenous People and Convention No. 169 of the International Labour Organization, this article contends that attaining a understanding of American Indian rights as fundamental through an international human rights framework can help untangle the web of conflicting doctrines that very much defines American Indian law today, opening the door to a paradigm shift in the domestic relationship between tribes and the federal government that would allow tribes to attain economic self-sufficiency through their own assets

Plenary Energy

An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending legislation that would amend the 2005 Energy Policy Act in a manner that would allow tribes greater autonomy in developing their mineral resources without necessarily compromising the trust relationship. But, as this article suggests in using the Keystone XL Pipeline as a case study, tribes should not rely on Congress to act in the interest of tribal sovereignty unless they can attach this interest to a strong political impetus. Invoking both the United Nations Declaration on the Rights of Indigenous People and Convention No. 169 of the International Labour Organization, this article contends that attaining a understanding of American Indian rights as fundamental through an international human rights framework can help untangle the web of conflicting doctrines that very much defines American Indian law today, opening the door to a paradigm shift in the domestic relationship between tribes and the federal government that would allow tribes to attain economic self-sufficiency through their own assets

Operationalizing Free, Prior, and Informed Consent

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to create their own FPIC protocols when interacting with indigenous peoples. At present, there is an absence of FPIC protocol that has been developed by indigenous peoples themselves. A tribal FPIC law and protocol may serve as a starting point and model to actualize these rights for the development or use of culture, lands, territories and resources, and may serve to implement a portion of the UNDRIP. This article contends that indigenous peoples must develop and implement their own FPIC protocol in order to assert their human rights, and offers a model under United States law for Indian tribes to assert their sovereign and human rights without waiting for member state implementation