Call it #FPIC – Free, Prior, and Informed Consent. To those who opposed the Dakota Access Pipeline with unrelenting repetitions of the powerful #NoDAPL hashtag, think of #FPIC as the global equivalent — a statement of support for every tribal government’s right to say no!
At stake, arguably, could be our species’ ability to defeat the oncoming apocalypse of climate change.
And we are proud to say that the first advances towards real equality have been made in Washington state — and, more precisely, by coalitions of Washington’s tribes, who have been working for years behind the scenes to educate state and federal leaders on the need to comply with this minimum human rights standard.
The phrase #FPIC comes from the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), which states Indigenous Peoples must grant their “free, prior, and informed consent” before an action is taken that impacts their lands and rights. Its inclusion originated in the work of Washington’s tribes — and it appears its embodiment in law may also start here.
Passed by the United Nations in 2007, the UNDRIP was supposed to rectify the fundamental hypocrisy of modern nation states who recognize Indigenous Peoples in theory as “sovereign,” but treat them in practice as conquered and occupied subject peoples who may have “governments” and “rights,” but only to the extent that it is politically convenient and judicially enforced.
After all, how could a people who organized themselves into a state prior to a colonizer’s arrival, withstood epidemics and genocide without dissolving their state and ultimately received legal recognition of their sovereignty from the colonizer’s government not have the same right as any other nation state to say “no” to a party that wants to access and exploit their lands or people?
Free, prior, and informed consent is the prescription for reforming that abusive relationship — if Indigenous people are sovereign, then any other sovereign government or corporation must work with them on the basis of real consent. That consent must be free (given without duress), prior (ahead of time), and informed (while honestly providing all of the pertinent information).
In the United States, the best way to understand the need for #FPIC is to explain the concept of “tribal consultation” — which, in its worst modern examples, has become the diplomatic equivalent of date rape.
If an American government wants to take an action that directly impacts a tribe’s lands, rights or sacred sites, it is customary and in some cases a legal necessity for them to offer “tribal consultation” —basically, to go through the motions of discussing the matter with the impacted tribal government without any requirement to listen, provide them with all of the information, or wait for their permission to proceed.
Under these circumstances, unless the tribe has a treaty-protected right, statute or precedent and the money to finance a long court fight, tribal governments are leveraged to either “get what they can” before submitting to the will of the third party — or risk immense political, economic and social repercussions by withholding consent while a trespassing government does whatever it wants anyway.
A recent column by Native American civil rights icons David E. Wilkins and Hank Adams perfectly captures the current reality of tribal relations: “[W]hat 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.”
In short, Wilkins and Adams write, “Indian Country has been gaslighted and abused by those working under the cover of this bad-faith definition [of consultation].”
It was intimate and bitter experience with the demeaning box-checking exercise of tribal consultation that inspired the Tulalip Tribes of Washington state to first advance the concept of #FPIC at the United Nations.
The inclusion of the “consent” provision in the eventual draft of the UNDRIP is the reason only four countries voted against it at the United Nations — the United States, Canada, Australia and New Zealand.
You may notice the inconvenient truth that these are four former British colonies with large, politically organized Indigenous populations that have been systematically oppressed and disenfranchised.
Washington’s tribes joined with their Indigenous brothers and sisters nationwide to demand that President Barack Obama, in the rosy and hopeful days of his first term, withdraw America’s opposition to the UNDRIP.
To his credit, in 2010 his administration did signal its agreement with the nonlegally binding UNDRIP — in theory only.
In practice, the inalienable rights of sovereign Indigenous peoples to give or withhold their free, prior and informed consent on any issue within their jurisdiction has remained an aspirational dream in every developed country in the world.
On April 19, the New Zealand government announced its intent to become the first nation in the world to comply with the UNDRIP and enact #FPIC — which means Washington state tribal leaders are going to be only more inspired to get there first in this country.
Inspired by the heroism of the Standing Rock Sioux in standing up to the Dakota Access Pipeline, the Quinault Indian Nation and the Tulalip Tribes in 2017 began a concerted and uncompromising effort to organize tribes behind replacing tribal consultation with free, prior, and informed consent. We were assisted by global expert Keith Harper, the decorated Cherokee attorney and diplomat who served President Obama as the U.S. ambassador and permanent representative to the U.N. Human Rights Council, and leading Washington tribal law attorney Rob Roy Smith
By the beginning of winter in 2017, tribal leaders from nations across Washington state — including the Quinault Indian Nation, the Tulalip Tribes, the Samish Indian Nation, the Snoqualmie Indian Tribe, the Lower Elwha Klallam Tribe, the Makah Nation, the Quileute Tribe, the Suquamish Tribe, the Confederated Tribes of the Colville Reservation, the Squaxin Island Tribe and others — jointly advocated for Washington’s progressive leaders to take a stand on replacing tribal consultation with #FPIC.
The opportunity was the desire of our state’s progressive establishment to pass a climate change law — a proposal that so obviously and inherently impacts the treaty-protected rights of Washington’s tribes, who legally co-manage its natural resources. We felt confident no comprehensive climate change law could be legally passed without meaningful tribal collaboration.
Success came quickly — in early 2018, the Nature Conservancy, the Washington Environmental Council, and the leadership of the Washington State Labor Council agreed to partner with Washington’s tribes on a climate change initiative that would embody #FPIC within Washington state law.
That initiative, I-1631, failed at the ballot box due to an unprecedented and mendacious $32 million propaganda campaign by fossil fuel companies — whose rape-and-pillage conquistador business practices have more to lose from the acceptance of #FPIC than any other sector.
However, I-1631 by design succeeded in mainstreaming the concept of #FPIC like never before — in fact, utilizing a climate initiative to mainstream formerly “radical” but undeniably necessary policies like #FPIC was the plan developed over a year before I-1631 was filed when the Quinault Indian Nation’s leadership formalized its climate change advocacy plan for the Trump Administration years (a process the authors of this piece participated in).
In 2018, Gov. Jay Inslee and Attorney General Bob Ferguson both endorsed I-1631 — signaling the first time that the senior executives of an American state had signaled support for embodying #FPIC into law. That same year, state Sen. Reuven Carlyle, D-Seattle, became the first legislator to do the same and embraced #FPIC in his dogged yearly attempts to pass climate change legislation in the Legislature — and he justly did so again in 2019, even without the example of I-1631 hanging over everyone’s head.
This progress cannot stop, cannot slow, cannot fail to accelerate — too much is at stake.
As First World governments prove themselves fatally vulnerable to both corporate greed and aggressive nationalism — the collective embodiment of what we call “toxic masculinity” in the individual — only one class of sovereign governments has been consistently immune to both fatal flaws: Indigenous Nations.
If we are to stop the catastrophic karmic comeuppance of climate change, empowering tribal governments that are truly invested in combating climate change will be the most direct way to slow the exploitation and destruction of our planet. It will certainly be more feasible than quickly reforming the massively corrupted, corporatized and militarized governments that rule most of the world.
As William F. Buckley famously said of his idealized vision of conservatives, tribal nations have already proven willing to “stand athwart history, yelling, Stop!”
If we are to restrain brainless corporate automatons from annihilating the planet in pursuit of the short-term profits that they are legally constructed to pursue with suicidal myopathy, then the easiest way may be to recognize the rights of tribal nations to legally protect their clean, air, water and public health.
Washington’s tribes have already proven willing and capable of beating the biggest corporations in the world in court and in the court of public opinion. Tribal governments have repeatedly defeated new fossil fuel projects across Washington, from the Gateway Pacific coal terminal north of Bellingham to crude oil terminal at the Port of Grays Harbor.
If we are to finally stop the endless bloodbath of war and imperialism, then holding accountable the governments and populaces of those same military powers when they wantonly abuse the human rights of the Indigenous Peoples in “their” home territories is the rational first step to creating a more humane world.
So remember those letters: #FPIC, F-P-I-C.
Those four powerful letters may be a key to the future of our species.
