Protecting Native Human Rights During Natural Disasters Through Free, Prior, and Informed Consent: A Case Study on Arguing FPIC as a Tool for Human Rights.

• Author: Barbera, Christopher

1. INTRODUCTION AND BACKGROUND

   It is an established principle of disaster preparedness that the involvement of local communities in disaster risk reduction and emergency planning processes greatly increases that community's resilience in the face of natural disasters. (1) Communities often have unique hazards, strengths, internal dynamics and politics, response capabilities, and vulnerabilities that require equally unique emergency preparedness plans that account for these variables. (2) Increasingly, scholars have acknowledged that indigenous peoples' knowledge of emergency preparedness and disaster risk mitigation, in particular, is underrated and important to the survival of those communities. (3) This article examines the Federal Emergency Management Agency's (FEMA) "Tribal Consultation Policy" (TCP) and argues that effective participation by Natives (4) in disaster planning and in creating policies that have the potential to affect them requires nothing short of free, prior, and informed consent (FPIC).

   To this end, this article discusses two legal arguments that Native Tribes can make to require the federal government to elevate their participation on emergency preparedness planning to the level of FPIC. Part I discusses the FEMA TCP, its legislative history, and Native self-determination and sovereignty in the context of Federal Indian Law. The section then examines how the concept of FPIC is interpreted by international law as traditionally being grounded in, and used to further, indigenous peoples' self-determination. Next, it argues that, because one of the cornerstones of Federal Indian Law is that Natives are "domestic dependent nations" and not truly sovereign, the level of participation granted to Natives for emergency planning, if argued under a self-determination theory in U.S. courts, will always fall short of FPIC. Part II argues that FPIC is an evolving concept in international law that can be grounded in and used to help further other indigenous human rights. Part III examines how natural disasters have direct and indirect impacts on indigenous peoples as "especially vulnerable" populations and makes the case that to prevent these impacts, effective emergency planning involving the FPIC of indigenous populations is critical for these communities. Additionally, Part III examines international human rights agreements that are binding on the U.S. that can be used as a legal basis to argue for FPIC through a human rights protection lens. Finally, Part V discusses which theory would likely be more successful and gives guidelines for how Natives can seek reparation and how the federal government can use principles of international law to ensure reparations are made.

2. FEMA'S TCP, NATIVE SELF-DETERMINATION IN FEDERAL INDIAN LAW & THE INTERNATIONAL LEGAL INTERPRETATION OF FPIC

   1. FEMA 's TCP, Its Legislative History & The Illusion of Self-Determination Under Federal Indian Law

      Pursuant to President Obama's "Memorandum on Tribal Consultation," FEMA produced its first ever TPC in 2010. (5) The policy, updated in 2017, directs FEMA employees to "consult" with tribal leaders on matters that have "substantial direct effects" on tribes. (6) According to the policy, FEMA unilaterally decides if and when an action has tribal implications and if the action requires consultation. (7) It also unilaterally decides the "suitable methods" of consultation and who in the tribe to consult. (8) Most importantly, the policy gives FEMA the freedom to "consider" the tribal input received during the consultation in order to make an "informed decision" and imposes no formal requirement to incorporate the tribal input into its decision. (9) Thus, while the policy in name seems to grant Natives an opportunity to exercise self-determination through participation in emergency planning activities, in reality, this notion of participation and consultation, like that of Native self-determination, may in fact be an illusion.

      So, where does this policy derive its extremely limited definition of "participation"? The legislative history of the TCP is revealing in this context. In 2000, President Clinton issued Executive Order (EO) 13175, "Consultation and Coordination with Tribal Governments." (10) EO 13175 was seen as a step towards bringing Federal Indian Policy in line with previous and often unsuccessful attempts by the federal government to recognize Native self-determination and sovereignty and attempted to clarify federal policy on Native Tribes. (11) The order created requirements for federal agencies to "respect Indian tribal self-government and sovereignty," to "grant Indian tribal governments the maximum administrative discretion possible," and to "defer to Indian tribes to establish standards." (12)

      In the signing statement that accompanied the order, President Clinton recognized the federal government's history of unequal treatment of Natives and re-stated the government's commitment to recognizing the "... sovereignty, self-determination, and self-government..." of Native Tribes through a policy of consultation on issues that "impact native communities." (13) While this open recognition of Native self-determination and sovereignty may appear promising, the order's phrasing of the federal government's relationship with Native Tribes is revealing.

      The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes. (14) This explicit reference to Native Tribes as "domestic dependent nations" with a "unique relationship" or "trust relationship" with the federal government is key, as it demonstrates that any reference to or recognition of Native sovereignty or self-determination throughout the rest of the order is inherently limited to the definition within the confines of this "trust relationship."

      President Obama's memorandum in 2009 operationalized EO 13175 by charging federal agencies with creating and submitting "detailed plan[s] of actions the agency will take to implement the policies and directives of Executive Order 13175." (15) Despite promising "regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications," the memorandum acknowledged the federal government's "unique" relationship with Native Tribes while limiting the level of participation allowed through the statement "[executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms." (16)

      Not surprisingly, when FEMA subsequently released its TPC, the policy statement, in reflection of EO 13175, repeated that this trust relationship between the federal government and Native Tribes would serve as the "foundation for all FEMA engagement with tribal governments, including tribal consultation..." (17)

      The "unique" or "trust" relationship incorporated into the TCP, EO 13175, and President Obama's memoranda is a reference to one of the foundational principles of federal Indian Law: that the Native Tribes are "domestic dependent nations." (18) Justice John Marshall introduced this concept in Cherokee Nation v. State of Georgia:

      [Native Tribes] may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father. (19) This idea of a "trust relationship" between the federal government and Native Tribes serves as one of the foundations of federal Indian law (20) and has been interpreted as having had a dual legal effect. (21) First, it created a fiduciary relationship between Native Tribes and the federal government by which, in exchange for Native cessation of lands and resources, the federal government is obligated to "protect and preserve the borders of Indian country." (22) It also effectively undercuts any notion of true tribal sovereignty or self-determination. Instead, it creates the illusion of self-determination that, in reality, is completely subject to the whims of the "ward" or federal government. Scores of federal cases marginalizing and minimizing Native self-determination demonstrate the grim reality that even federal courts interpret Native self-determination as a strawman concept subject to the will of Congress. (23) As recently as 2019, the Ninth Circuit in Knighton v. Cedarville Rancheria of Northern Paiute Indians described vividly just how much of an illusion Native self-determination and sovereignty is: "[t]he sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance." (24)

   2. Prevailing International Legal Basis for FPIC

      The International Labour Convention No. 169 (ILO 169) on Indigenous and Tribal Peoples is the "main legally binding document entirely focused on the rights of indigenous peoples." (25) The right of indigenous peoples' participation in matters "that concern them" is "the cornerstone" of ILO 169. (26) ILO 169 also defines "appropriate and effective mechanisms" for this participation while helping to set the stage for a discussion of appropriate...