Consultation and Consent

News reports about the Indian Child Welfare Act in the mainstream news press invariably seem hostile to the Act. They usually also manage to not quite get it right when describing how the Act works, or when and how states have tried to invoke the "Existing Indian Family Doctrine." To me this is a reflection of the resistance to and ignorance about ICWA that contribute to non-compliance with its provisions. ICWA after all, recognises self-identification for tribal membership-- in a rather convoluted way. If a tribe passes the hurdle of federal recognition, then the tribe can set its own membership criteria. There is no "one rule fits all" for determining who is a member of what tribe. This seems to be a troubling aspect of the Act for many--but the question of who is a tribal member or eligible for tribal membership can easily be solved by ASKING THE TRIBE in question!

ICWA also recognises some level of indigenous views on family formation. Certain definitional provisions of ICWA give way to tribal determinations, if they exist. For instance, the definition of "extended family members" ( persons with this designation receive some preference for placement considerations for the child) "shall be as defined by the law or custom of the Indian child's tribe" (Sec 1903(2). It is only in the absence of this that the statutory definition comes into play.

Section 1915 also has provisions that incorporate tribal provisions ahead of statutory provisions when it comes to the order of placement preferences. Here, "if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order
so long as the placement is the least restrictive setting appropriate to the particular needs of the child..."

And again, finding out what this might be means that the state court system must communicate with the tribe and then give effect to the tribal order of placement preference if one has been established.

The issue of communication with tribes also features in some arenas. Firstly of course is the on-going visit of Special Rapporteur James Anaya to the United States to investigate the situation of indigenous peoples in the United States.


Another is the US Department of Labor's proposed tribal consultation policy that is now open for comment.

But the point that consultation is not in some instances any more than mere window-dressing and requires no commitment to take on board any of the results of consultation with indigenous peoples is powerfully made by the Black Hills Treaty Council in submissions made to Mr Anaya ahead of his planned visit to the Lakota Homelands on May 2012. Their submission states:

" As the Special Rapporteur is well aware, consultations are often performed with a preconceived outcome by the greater negotiating power and do not realistically promote debate or participation with all interested parties. By contrast, the right to FPIC [free prior informed consent] promtes the full and effective participation of indigenous peoples.."

This makes the important point that listening and consulting is one thing-- but that giving effect to indigenous standards and decisions is quite another.

A federal tribal consultation policy does not provide for consultation with those indigenous groups that are not federally recognised. It also does nothing to promote free, prior and informed consent.

What steps, if any, the United States will take to promote free, prior and informed consent in place of consultations, and what comments the Special Rapporteur will have will be of interest.

And in the background remains the Indian Child Welfare Act, with its provisions for tribal involvement that go beyond a mere "consultation" on tribal standards. ICWA compliance remains an issue throughout the United States. Where there is resistance and hostility to ICWA, it seems likely there will be resistance and hostility to the larger notions of free, prior and informed consent. It remains to be seen if the gulf between consultation and consent will be bridged.