Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on the Rights of Indigenous Peoples

In December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The U.N. Declaration articulates a framework of indigenous rights founded in the right to self-determination. Specific corollary rights flow from the right to self-determination. Among these is indigenous peoples’ right to “free and informed consent prior to the approval of any project affecting their lands or territories or other resources.” Currently, the United States embraces a policy of “meaningful consultation” when federal agencies undertake projects affecting indigenous peoples and their traditional lands. Such consultation is particularly significant in the context of traditional lands that have been classified as “public lands.” The consultative processes mandated by statutes such as the National Historic Preservation Act and the National Environmental Policy Act, however, fall short of adequately protecting indigenous interests within the context of large-scale extractive industries. These inadequacies are exemplified by the 30-year struggle waged by the Western Shoshone people, who currently contest a massive, open-pit cyanide heap-leach gold mine on one of their sacred mountains that is located on “public” land in Nevada. This Note proposes that the U.N. Declaration’s free, prior, and informed consent standard should be interpreted as a spectrum along which different contexts require different levels of indigenous participation. Ultimately, the United States should endorse a shift in policy toward requiring indigenous consent in the limited context of large-scale extractive industries operating on indigenous peoples’ traditional lands.