Tag Archives: serious conversation

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.

Another Abuse of Asking

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I’ve been interested for a while now in the way asking works: what exactly are we doing when we ask what to do (what we should or ought to do) and when we ask things of each other (when we make requests or demands)? For the most part, my posts on what I’ve called, for better or worse, the power of asking have focused on the abuse of asking, the confusion of asking with orders that are not open to deliberation, or the issuing of commands in the guise of requests, as when people use the nominative “ask” but aren’t asking anything at all.

When I talk about “abuse” in this context I mean, for starters, that these confusions and ruses and other kinds of indirection make asking an “act professed but hollow,” as Austin puts it in How To Do Things With Words. In Austin’s scheme, abuse is just one kind of infelicity, and I don’t want to be too strict about it, or pretend that the term covers all the instances in which asking does not come off as it should; but I’m drawn to talking about abuses of asking in part because I think it’s important to point out that acts professed but hollow may not only be insincere but also lack moral seriousness, in the sense that moral seriousness requires taking others seriously, giving them moral standing as second persons to whom one is accountable and answerable.

Abuses might take the form of a well-meaning effort to soften commands, so that people don’t feel pushed around or ordered about. That might seem like a harmless management ploy. But to allow that this professed asking is really a nicer way of commanding is to admit that abuses of asking can also mask real power relations. They don’t afford interlocutors equal standing or a share in power, or even the freedom to answer “no,” as genuine deliberation or serious conversation about what to do might.

An illustration is provided by what North Dakota Governor Doug Burgum said just this Wednesday past, before the police moved into the Oceti Sakowin Camp:

Our big ask for tomorrow is that, you know, anybody that’s remaining in the camp, we want to make sure they know that they have an opportunity to voluntarily leave, take your belongings, remove anything that you think might be culturally significant, and we’ll help you get on your way if you need to do that.

This “big ask” followed an eviction order issued by the Army Corps of Engineers that was backed by heavily armed, militarized police. Those who did not take the “opportunity to voluntarily leave” were arrested and forcibly removed. Governor Burgum might have chosen to present what is essentially an ultimatum as a request in order to seem fair and reasonable, or to defuse a tense situation. But it’s curious — isn’t it? — that it wasn’t just the governor who indulged this bureaucratic habit of speech. The governor’s spokesperson later made the same request: “We ask those that are remaining to pack up their belongings, to take off,” he said, and again repeated the offer to “help” with transportation.

Neither he nor the governor wanted to be giving orders, apparently. If their statements on this occasion can be set down as abuses of asking, that abuse is hardly the worst charge to be leveled against the governor of North Dakota in this situation. And to parse Governor Burgum’s language or that of his spokesperson on this occasion probably isn’t the best place to start reflecting on all that just went down at Standing Rock. But it’s important, I believe, to be look at what was said on this occasion and what was actually meant, how power presented itself and how it actually went about things.

The two are not even close.

The governor and his spokesperson were not asking anything at all. They were disguising not just an order but a threat of violence as a request, and publicly refusing to take responsibility for what might ensue. Apparently, they weren’t the ones giving the orders. By asking, or pretending to ask, they washed their hands of the situation. In essence, the governor said that it was up to the water protectors at the camp to keep the forces under the governor’s command from doing violence to them.

It is a classic example of the abuser’s refrain: don’t make me hurt you.

How Things Are Between Us, 2

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As I wrote in a recent post, it’s reductive and misleading, but all too common, to think about conversations as mere transactions. I ask and you bid; I have my say and you have yours. But in conversation with another person or a group, I can’t be indifferent to how things are between us. If I am actually and persistently indifferent, then I might be a sociopath or another kind of dangerous person. If I am a relatively decent person and happen to lapse into indifference, you can justly complain that I am neither respecting the standing and authority you and others have, nor am I seriously committed to our conversation, which amounts to the same thing.

Grice writes about conversation as “talk exchange,” and that formulation worries me a little, but he clearly has in mind something more than the transaction we entertain when we talk about “an exchange of views.” The phrase, which might suit diplomatic occasions where distinguished persons stand up and make speeches to let their official positions be known (before retreating from public view to have a conversation about what to do), falls short of capturing exactly the point Grice invites us to make: talking things over, figuring out what to do, making meaning, reaching agreement or finding out where we disagree — all of that is a cooperative undertaking, a joint activity.

Cooperation doesn’t mean we set aside differences; even the most charitable interlocutors can be deeply and persistently antagonistic. Like all good collaboration, conversation tends to bring differences to the fore. It puts them out in the open, we sometimes say; and it’s worth pausing over that expression and considering where that open ground might be, and why we regard it as open. But if we pretend we are just trading or trafficking in (different) views, we are ignoring the common ground already beneath our feet. This ignorance opens to the door to all sorts of abuses and indecencies.

Charles Taylor goes much further in this regard:

…language serves to place some matter out in the open between interlocutors. One might say that language enables us to put things in public space. That something emerges into what I want to call public space means that it is no longer a matter for me, or for you, or for both of us severally, but is now something for us, that is for us together.
Let us say that you and I are strangers travelling together through some southern country. It is terribly hot, the atmosphere is stifling. I turn to you and say: ‘Whew, it’s hot.’ This does not tell you anything you did not know; neither that it is hot, nor that I suffer from the heat. Both these facts were plain to you before. Nor were they beyond your power to formulate; you probably had already formulated them.
What the expression has done here is to create a rapport between us, the kind of thing which comes about when we do what we call striking up a conversation. Previously I knew that you were hot, and you knew that I was hot, and I knew that you must know that I knew that, etc.: up to about any level that you care to chase it. But now it is out there as a fact between us that it is stifling in here. Language creates what one might call a public space, or a common vantage point from which we survey the world together.
To talk about this kind of conversation in terms of communication can be to miss the point. For what transpires here is not the communication of certain information. This is a mistaken view; but not because the recipient already has the information. Nothing stops A making a communication to B of information already in B’s possession. It may be pointless, or misguided, or based on a mistake, but it is perfectly feasible. What is really wrong with the account in terms of communication is that it generally fails to recognize public space. It deems all states of knowledge and belief to be states of individual knowers and believers. Communication is then the transmittal, or the attempted transmittal, of such states.
But the crucial and highly obtrusive fact about language, and human symbolic communication in general, is that it serves to found public space, that is to place certain matters before us. This blindness to the public is of course (in part anyway) another consequence of the epistemological tradition, which privileges a reconstruction of knowledge as a property of the critical individual. It makes us take the monological observer’s standpoint not just as a norm, but somehow as the way things really are with the subject. And this is catastrophically wrong.

Serious Conversations, 10

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From Part 2, Chapter VI of Ahmet Hamdi Tanpinar’s The Time Regulation Institute, this description of a coffeehouse in the Sehzadebasi district of Istanbul:

What wasn’t discussed in the coffeehouse? History, the philosophy of Bergson, Aristotelian logic, Greek poetry, psychoanalysis, spiritualism, everyday gossip, lewd adventures, tales of terror and intrigue, the political events of the day—all gathered up into one swollen conversation that burst like a spring deluge, carrying away everything in its path, as surprising as it was senseless, one topic seething forward before the other was finished. But, then, of course, nothing was ever discussed in detail. In the coffeehouse a story would rise up as if from a long slumber, or like a faint memory of the ancient echo of a death. As conversation turned deliriously from one subject to the next, Alexander the Great would join forces with Hannibal or the Kantian imperative, all to serve as antidotes to daily life. With even the most benign adventure, the pleasure was in the retelling. The patrons had listened to one another for so long that they could guess more or less what would happen in any story. Conversation was merely a platform for the speaker to display his eloquence; it was more like a play, or the recitation of a dearly loved work, for the exchanges were executed according to predetermined conditions—not at all unlike the traditional Turkish mime theater, ortaoyunu. The story would be interrupted by the same interjections, and laughter would follow; if certain members of the crowd were directly involved in the tale, they would make their defining pronouncements at just the right moment. If the narrator introduced new details, he would be cut off at once with, “You made that up!” But it was these new twists that people came to enjoy most in later recitations. And no one ever found the endless—and mandatory—repetitions tedious. In fact it was only the out of the ordinary that met with some resistance. New ideas were at first humored out of courtesy and a slight curiosity, but they would remain unaddressed until the crowd’s ever-vigilant imagination had recast them as pleasantries, thus assimilating them to their own idiom. This is what happened to any attempt at serious conversation. A new story was accepted into the repertory only once it had been reduced to a base sexual escapade, a tale of pederasty, a piece of slapstick shadow-puppet humor, or the replica of an ortaoyunu. There was a specific name given to those who discussed serious matters: they were known as the “world regulators,” the aristocrats who busied themselves with the regulation of the world.

Austin and Asking, 2

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I’m re-reading Austin’s How to Do Things With Words, trying to come to terms with these lectures and what perspectives they offer on the broad theme of conversation and collaboration I’ve been exploring in a series of posts on the power of asking.

On my first reading, which I discussed here, I must have nodded midway through Lecture VI, or maybe I just wasn’t in the right frame of mind to appreciate the historical argument Austin advances in that lecture about the “evolution of language” (focusing specifically on the development of the explicit from the primary performative).

…historically, from the point of view of the evolution of language, the explicit performative must be a later development than certain more primary utterances, many of which are at least already implicit performatives, which are included in many or most explicit performatives as parts of a whole. For example ‘I will…’ is earlier than ‘I promise that I will…’.The plausible view (I do not know exactly how it would be established) would be that in primitive languages it would not yet be clear, it would not yet be possible to distinguish, which of various things that (using later distinctions) we might be doing we were in fact doing. For example, Bull or Thunder in a primitive language of one-word utterances could be a warning, information, a prediction, &c. It is also a plausible view that explicitly distinguishing the different forces this utterance might have is a later achievement of language, and a considerable one; primitive or primary forms of utterance will preserve the ‘ambiguity’ or ‘equivocation’ or ‘vagueness’ of primitive language in this respect; they will not make explicit the precise force of the utterance. This may have its uses, but sophistication and development of social forms and procedures will necessitate clarification. But note that this clarification is as much a creative act as a discovery or description! It is as much a matter of making clear distinctions as of making already existent distinctions clear.

One thing, however, that it will be most dangerous to do, and that we are very prone to do, is to take it that we somehow know that the primary or primitive use of sentences must be, because it ought to be, statemental or constative, in the philosophers’ preferred sense of simply uttering something whose sole pretension is to be true or false and which is not liable to criticism in any other dimension. We certainly do not know that this is so, any more, for example, than, to take an alternative, that all utterances must have first begun as imperatives (as some argue) or as swear-words — and it seems much more likely that the ‘pure’ statement is a goal, an ideal, towards which the gradual development of science has given the impetus, as it has likewise also towards the goal of precision. Language as such and in its primitive stages is not precise, and it is also not, in our sense, explicit: precision in language makes it clearer what is being said — its meaning: explicitness, in our sense, makes clearer the force of the utterances, or ‘how…it is to be taken’.

What Austin says here about how human beings came to mark and remark the forces of utterances and took language from a primitive to a sophisticated state can apply to asking as well. In this view, the explicit use of the performative ask (“I ask…” or “I ask that…”) would constitute a step forward in the evolution of language, “a later achievement…and a considerable one.” Austin calls it a “creative act” of “clarification.”

Historically, one thing that act might have helped to clarify — Austin’s caveat about the presumed historical priority of imperatives notwithstanding — is the difference between asking and command, and, therefore, the terms on which interlocutors meet, or the “social forms and procedures” that govern their relationships and necessitate this clarification or distinction.

This puts us in murky territory, and Austin readily admits it. The historical argument here seems “plausible,” as Austin says, but ultimately it may not stand up (though it’s hard to see how it could be decisively knocked down).

This much seems clear: the creative act of explicitly asking will always help clarify the force of asking; and the articulation of that force — that power of asking — essentially creates a new charter for conversation with a second person, an interlocutor or interlocutors whose standing to address us we recognize and whose replies we await and then take into account.

That said, let’s also admit that the explicit performative “I ask…” or “I ask that…” is not (nowadays) so widely used, but is reserved, it seems, for certain kinds of serious inquiry and formal address. (Austin’s own lectures furnish numerous examples of this reserved use, as I suggested in my earlier post; but they were given in 1955, and both words and things have changed, at Harvard and everywhere else, since then.)

Still, making asking explicit can help render the conversation serious, not just because it makes language more precise, but also because it clarifies the relationship between interlocutors and the power they have to reckon with, and share.

Serious Conversations, 5

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It’s difficult to have an uninterrupted conversation. We can retreat to some quiet spot, turn off all our devices, put the do-not-disturb sign on the door, and chances are we will still have to deal with interruptions. Bar all intruders, but we cannot bar ourselves from the place where we are. A noise, the aroma of cooking, thirst or a rumble in the gut, a change in the weather or the position of the sun, the sight of a passerby, a bird or squirrel, a tugboat making its way into the harbor: it’s remarkable how little it takes to distract us or take our attention away from the conversation, stop us in mid-sentence or change the point of view.

If the interruption can be pinned on one of our party or an interloper, we are likely to go on the offensive, and start blaming. When we’re done, or if there’s no one to blame, we almost always go on the defensive: we try to go back to where we were, retrench or retrace our steps, restore equilibrium. The truth is, there’s no going back. If conversation can feel like a place we create together, then an interruption can feel like the loss of a world.

Or now it’s a world with a history. When we ask, where were we? what were we talking about? we are already speaking of ourselves in the past tense. There’s no need for nostalgia or remorse, and we shouldn’t lose time searching for a thread that is no longer there. The warp has changed. So must the woof.

Interruptions give us a chance to react, reset, review and recount, to advance new claims or make new demands of ourselves or of others, or simply to renew the joint commitment we made to having the conversation. So we should not think of interruptions merely as noise to signal, but learn to welcome them and think of them as an intrinsic part of the conversation itself.

Polite conversation may be a matter of knowing when and how to interrupt; serious conversation involves give and take, a socializing of attention. Interruption doesn’t have to mean talking over the other, but listening and then redirecting. We attend seriously to the matter between us by making reciprocal claims on one another’s attention.

To put that another way: conversation assumes a shared intention to shift attention.

Is This A Serious Conversation?

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Is this a serious conversation? Is he discussing this question in earnest and giving you second-personal authority, or is he simply going to decide what to believe and do it unilaterally? If the latter, then not only will there be nothing reciprocal about his choice, but also there will be nothing genuinely reciprocal about the conversation; it will not be serious. He will have no particular need to determine what you are going to do, say, by listening carefully, because his choice will be unilateral. If he is an egoistic non-cooperator, he will not cooperate whatever you say or do. He has nothing at stake in the conversation and need give you no authority in it, either to answer the theoretical question of what (to believe) you will do, or to answer the practical question of what to do himself. No genuine co-deliberation, either theoretical or practical, will occur.

I found my way back to this discussion of the Prisoner’s Dilemma in Darwall’s Second Person Standpoint after reading this morning that a group of leading NGOs had walked out of the Warsaw climate talks. “Talks like these amount to nothing if countries refuse to come to them and negotiate in good faith or worse, try to drag the process backwards,” said the World Wildlife Fund’s Sam Smith. There are complaints that corporate sponsors compromised and undermined the talks from the get-go. But the conversation about what to do — and who should do what — was already at an impasse. There were a few fine speeches, but the time for fine speeches has long ago passed.

Some people — Suzanne Goldberg calls them “experts familiar… with the politics of climate change” in The Guardian today — seem to think that new research by Richard Heede will help “break the deadlock.” This seems like the sort of thing only experts and journalists who interview them can believe: that a piece of research is what’s needed to make an unserious conversation serious.

As The Guardian headline has it, Heede has identified ninety companies that have “caused two-thirds of man-made global warming emissions” since the start of the industrial era. His list includes state-run companies and coal producers from around the world as well as big oil companies from the developed world. The idea, or at least the hope, is that Heede’s comprehensive, historical accounting of fossil-fuel producers will change the dynamics of the conversation, which has tended to pit developed against emerging economies, rich countries against poor, and so on.

It’s hard for me to imagine that Heede’s findings will really bring about anything like what Darwall calls “genuine co-deliberation” or translate to new cooperation. These talks are a game of dodge ball.

Al Gore is quoted here as saying that Heede’s list places “a clear obligation” on companies “historically responsible for polluting our atmosphere.” But what exactly does that obligation entail? “To be part of the solution,” says Gore. And how are these companies to be held to that obligation? Gore does not say; but without binding agreements and a whole new set of rules I am not sure we will get anything but the usual greenwashing rhetoric, more corporate funded climate denial and more inaction.

And even if we somehow do manage to hold fossil-fuel producing companies historically responsible, or (as Michael Mann suggests) fingerprint the sources of future emissions, we will need to hold ourselves and all fossil-fuel consumers responsible as well. That’s where the conversation gets really serious — when we start talking about historical responsibility as shared responsibility. Are we ready to start enumerating the obligations we all have on this score and figuring out how we are going to meet them? It seems very few people in Warsaw or anywhere this week really want to have that conversation.