Tag Archives: dignity of persons

More Meaningful Consultations: A Comment on the Biden-Harris Plan for Tribal Nations

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The incoming administration promises to reinstate the tribal consultation mandate. More can be done to meet the standard set by the RESPECT Act and make consultations more meaningful.

Federal agencies are required to consult with Native American tribes (and with Alaska Native Corporations) on infrastructure projects — highways, dams, or railways, for instance — and on permits for mines, pipelines, and other industrial development projects when they affect tribal lands and interests. Consultation policies and practices vary from agency to agency, but in all cases these consultations are supposed to be “meaningful.” What makes them so needs to be carefully spelled out.

“To promote robust and meaningful consultation,” the Biden-Harris Plan for Tribal Nations promises to reinstate the Consultation mandate put in place by the Obama administration and “ensure that tribal consultations adopt best practices consistent with principles reflected in the RESPECT Act.” The Act in question is H.R. 2689, which languished in the House after being introduced by Representative Raul M. Grijalva of Arizona in the 115th Congress. The Act sought to establish, among other things, this Sense of Congress:

effective, meaningful consultation requires a two-way exchange of information, a willingness to listen, an attempt to understand and genuinely consider each other’s opinions, beliefs, and desired outcomes, and a seeking of agreement on how to proceed concerning the issues at hand; and consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn, acknowledge, and respect the positions, perspectives, and concerns of the other parties.

The Act sets the bar for everyone involved. It describes meaningful consultation as deliberation among equals, a good faith undertaking to seek (but not necessarily reach) agreement together. It places more emphasis on recognizing different perspectives and positions than on reconciling them. It highlights a genuine and joint commitment to listen and develop understanding of each party and of the issues. Meaningful consultation will go well beyond mere transaction — or information exchange — to encompass learning and collaboration. Rooted in mutual respect, consultation can be both a dignifying encounter and an adventure.

The standard the RESPECT Act sets for meaningful consultation is worth reaching for right now, even if it remains to be seen whether Representative Grijalva will reintroduce the bill and whether the 117th Congress will make it law. Here are a few areas where work might begin.

  • Information ethics should develop with information systems.

A 2019 Government Accountability Office study of 21 Federal agencies discovered an information gap: agencies simply do not have accurate contact information for the appropriate tribal representatives. To remedy the situation, the GAO recommends that the Federal Permitting Improvement Steering Council develop a plan for establishing a central federal information system. While centralization might serve the FPISC goal of administrative efficiency, it can also raise significant issues around security and trust. Sharing control of data and data governance with tribes might help alleviate such concerns.

Information systems are already evolving to accommodate new collaboration technologies (like channel-based messaging and videoconferencing) to support consultation. Best practices still need to be identified and shared; and, just as importantly, inequities need to be addressed. As noted in the Biden-Harris plan, rural areas and reservations are disproportionately underserved by high-speed internet. It will take significant investment in broadband and 5G before new applications can be brought into the mix.

Where information technology can help consultation in other ways — with topological, geological, and archaeological reviews — other ethical considerations arise. Centering the discussion on shared data and published scientific information can help temper conversation and prevent powerful outside groups from exercising undue influence, but the model also has its limits. When scientific understanding appears to be incommensurate with tribal knowledge of the land, waters, and regional history, respectful consultation will strive to give both due consideration.

  • Dialogue will determine the value of information.

The text of the RESPECT Act itself could be amended to reflect its own sense of what makes consultation meaningful. The Act aims to “ensure that meaningful Tribal input is an integral part of the Federal decision-making process.” In this caption and throughout the Bill, the effect of the word “input” is to cast tribes as information sources, not full-fledged participants. Gathering or recording tribal input is only the first step at building dialogue, where information acquires meaning.

The colorless, technocratic term “input” appears to have found its way into the legislative lexicon via the Unfunded Mandates Reform Act of 1995 (Section 204), which calls upon agencies to “permit elected officers of State, local, and tribal governments…to provide meaningful and timely input.” Five years later, Executive Order 13175, still the touchstone for tribal consultation policies, moves beyond granting tribes permission to mandating “an accountable process to ensure meaningful and timely input.” This order does not, however, contemplate ways federal agencies might be accountable to their tribal counterparts, as they would be in a cooperative undertaking.

No surprise, then, that sixty-two percent of tribes surveyed by the GAO “identified concerns that agencies often do not adequately consider the tribal input they collect during consultation when making decisions about proposed infrastructure projects.” This finding appears to indicate that agencies cannot consider all by themselves the input they collect. Due consideration will take building “meaningful dialogue” — as a 2009 Presidential Memorandum on Tribal Consultation puts it — through “regular and meaningful consultation and collaboration.” It is best undertaken jointly.

  • Consultation still falls short of consent.

The 2007 UN Declaration of the Rights of Indigenous Peoples establishes that states “shall consult and cooperate with the indigenous peoples” to this clearly-stated end: “in order to obtain” Free, Prior, and Informed Consent. A 2010 State Department Announcement of US support for the Declaration fails to take into account the subordinating conjunction “in order to” and the purpose it unambiguously indicates, allowing only that the US understands the Declaration “to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” Instead of securing informed consent, as required by UNDRIP, the consultation process becomes a way of reserving discretion.

From the tribes’ perspective, as summarized in a 2017 study, consultation is merely box-checking unless undertaken with the aim of obtaining free, prior, and informed consent or at least reaching compromise. The Biden-Harris plan takes a step in this direction, promising to “uphold leasing and right-of-way regulations that strengthen tribal sovereignty and ensure tribal consent on tribal lands.” The plan makes no mention of the UN Declaration, however, and it remains to be seen how far this deference will extend.

Consent places front and center issues of self-determination, of autonomy and, in the context of government-to-government relations, sovereignty. One test of respect for self-determination comes when tribal leaders withhold consent or say “no,” as the obligation to obtain consent clearly implies the right to withhold it. Efforts to overlook or sidestep that obligation altogether are bound to diminish confidence that consultations will be appropriately heeded and outcomes will be just.

This serious shortcoming — which cries out for remedy — need not be a fatal flaw. “No” might signal a standoff or it might offer an opportunity to articulate and explore alternative plans. Good faith, constructive disagreement can test unexamined assumptions, illuminate unseen risk, and bring new interlocutors to the table. Agreeing to disagree need not mark the end of negotiation; it can indicate that parties will acknowledge differences, respect the distance they establish, and rejoin the dialogue.

Though consultations do not satisfy the human rights obligation to secure free, prior, and informed consent and do not necessarily yield agreements, they can help agencies take tribal interests into account and help tribes gain better understanding of (and some say in) decisions that affect them.

On a practical level, starting consultations early and returning to them throughout the life of a project can prevent conflict and costly delay further down the road. Just as importantly, consultation can help agencies gain much-needed perspective on emerging risks and complex problems, from economic and energy policies to food security and environmental protection.  And taking steps to improve tribal consultations might also raise the bar for other public consultations, making government a little more responsive to all citizens.

Ultimately, however, consultation will be meaningful only to the extent that all parties so find it.

Update: On January 26, President Biden issued an Executive Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, reinstating the consultation mandate. The Memorandum directs agency heads to consult with tribes before developing a detailed plan of actions the agency will take in this regard and to keep the OMB apprised of progress made against the plan.

How Things Are Between Us, 3: A Brief Reply to a Long Comment

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For some time now, I’ve been meaning to set down some thoughts in response to Marc Tognotti’s long comment on my posts about the transactional model of conversation, in which asks are countered by bids, resulting in a spread or a workable measure of practical liquidity.

Marc suggested I was too hasty in my refusal of the transactional model, and urged me to look a little more closely at asking and bidding and the joint commitments that underlie even the most finite, fleeting and seemingly self-interested human interactions.

There’s lots to what Marc says, and we might ultimately be saying the same thing. One place I thought my response might take the discussion was to Kant’s distinction of price from dignity in the second section of the Groundwork.

What refers to general human inclinations and needs has a market price; what, even without presupposing a need, conforms with a certain taste, i.e., a delight in the mere purposeless play of the powers of our mind, has a fancy price; but what constitutes the condition under which alone something can be an end in itself does not merely have a relative worth, i.e, a price, but an inner worth, i.e., dignity.

This distinction of relative worth and inner worth, price and dignity, can be applied and extended in a number of useful ways. More on that in the future. Here, I invoke it just to draw a bright line between negotiating a price (or merely asking and bidding) and the dignity of the plural subject to which conversations and other cooperative endeavors commit us. We want conversations that respect not only the dignity of individual persons but also the dignity of the plural first person to which we have jointly committed.

Marc’s comment comes close to the Kantian position in saying that we are already so committed: as Kant argues, the “share” every rational being has in universal legislation requires that each person takes her maxims from the point of view of herself, “but also at the same time of every other” person.

The larger point — maybe this is obvious — is that when acting jointly these basic moral considerations of the respect we owe to each other are of more importance in working out what to do than arriving at a brokered decision about what each wants or is willing to do.

Postscript 3 September 2016: To take a simple example. Lucy and Jo are taking a walk together to the old lighthouse. When they arrive at a fork in the road, Lucy wants to go left, and follow the path that runs along the brook, then cuts back to the cliff where the lighthouse stands. Jo wants to walk along the cliff all the way to the lighthouse. Both routes have much to recommend them, and we could extend the example to imagine their conversation at this juncture. They might debate the merits of each route, the scenic beauty of the cliff route or the quiet shade of the brookside path, but their conversation will involve something other than negotiations of fancy price. (Is Jo dismissive of Lucy’s suggestion? Is Lucy obstinate in her refusal to walk along the cliff? Does one run roughshod over the other? Does Jo agree to Lucy’s route then nurse a resentment for the rest of the walk?) Jo and Lucy have arrived at a moral crossroads: how they conduct themselves in conversation is of greater moral significance than the route they take. It’s not just a question of how they treat one another. It’s a question of the respect they accord to the “us” to which they’ve committed, the first-person-plural cooperating subject that is Jo and Lucy walking together.

Serious Conversations, 6

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It’s no surprise that the question periods at Davos turned out to be unproductive and dedicated mostly to preening, as Lucy Marcus reported in a blog post from the World Economic Forum last weekend. Where no practical decisions are going to be reached, and where real power is not up for grabs, we get jockeying for status.

The behavior is familiar to anyone who has spent much time at conferences, especially academic conferences, but it happens in meetings and at dinner parties, too. It’s a common social experience: conversations often function “as a kind of vocal lek,” as Robin Dunbar explains in Grooming, Gossip and the Evolution of Language; they are like “the display areas where males gather to advertise their qualities as potential mates to the females.”

Black_Grouse_2

Black grouse lekking.

In the natural world, this self-advertising serves a crucial function, helping birds and beasts pair off; in our world, lekking might make someone more attractive or raise his stature in the crowd, but ultimately it undermines serious conversation.

Someone might make the case that we should indulge it anyway. After all, self-advertising and chest-puffing are ultimately harmless, and might amount to nothing more than a collective throat clearing: a way of establishing the space of conversation and identifying or qualifying its participants. But even if we concede that it accomplishes that much, lekking will always be of limited value for a couple of reasons: first, because it’s an exercise in establishing social rank, and in a group it’s always very easy to confuse social rank (or title or position) with authority; and, second, that kind of authority — who we are, what we know, what our role is — is the wrong kind of authority for a conversation.

(The exception might be a case where the conversation was a matter of getting expert advice on a topic; but even there, we would not want an expert simply to wear her laurels or point to rankings, but to address our particular situation.)

The authority we need for serious conversation is, instead, a great equalizer: every person already has it, and we recognize it in each other the moment we enter into a conversational stance, or commit in earnest to the joint activity of conversation. It is the moral authority we have to address each other, as mutually accountable persons, and to make demands of each other: or to ask, as I’ve been putting it.

If lekking or some other social performance served the purpose of brandishing and bolstering that asking authority, then it would be of great value. Sharing stories and other empathy-building rituals might help in this regard, as long as they themselves don’t become exercises in self-advertisement or the promotion of a person as a brand.

This isn’t just about sincerity or authenticity of address, though that’s part of the issue here. Lekking relegates the mutual authority of persons to the background, distracts us from it, or diminishes human stature. It says that recognizing each other as equal partners in the project of the conversation won’t suffice; it narrows and excites our attention. It’s a social impairment.