Free, Prior and Informed Consent (FPIC) is an emerging international standard for
companies that interact with Indigenous Peoples. Closely tied to the concepts of
tribal sovereignty and self-determination, FPIC is designed to replace the processes
that historically excluded tribes from decision-making related to activities taking
place on or near their land. Many entities, particularly in the extractive industries,
have established their own protocols for interacting with Indigenous Peoples, but
few FPIC protocols have been developed by Indigenous Peoples themselves. The
Spokane Tribe of Indians of Washington have not only developed such a protocol,
but have gone a step further by examining the enforcement of the right to
FPIC—specifically as described in Articles 10, 19, 28, and 29 of the UN Declaration
on the Rights of Indigenous Peoples—as part of tribal law.
In April 2015, students from the University of Colorado Law School and the director
of Colorado Law’s American Indian Law Program traveled to New York City to
participate in the 14th session of the UN Permanent Forum on Indigenous Issues
where, along with Cultural Survival, First Peoples Worldwide, and the Spokane
Tribe, they held a side event for representatives from those organizations and
tribal officials to present the Tribe’s innovative work.
The precise set of actions that constitutes consent is not legally defined in
international or domestic law. It is clear, however, that a tribe must be able to say
“no” to a proposed activity. Other essential considerations involve the question of
whose consent must be obtained, and whether consent must only be given once,
or if it should be required at each phase of an agreement’s implementation. It is
also clear that a tribe must be given time to understand, access, and analyze
information concerning potential harms and impacts of a proposed activity before
giving consent. This includes access to information in the local language and in a
format that is culturally appropriate. Consent can only be made freely if it is given
without coercion, external pressure from government or industrial sectors,
manipulation, intimidation, or externally imposed timelines.
By establishing its own FPIC protocol, the Spokane Tribe can make critical decisions
protecting tribal sovereignty and self-determination. Now, the Tribe wants to
communicate the need for Indigenous FPIC with other Indigenous groups. To this
end, faculty and students in the American Indian Law Program have been working