June 01, 2012

Tribes as Managers of Federal Natural Resources

Brett Kenney

If you were in southwest Oregon one afternoon and decided to drive up 2.5 miles on BLM forest road 29-10-9.0, you might become confused by a landscape showing three radically different forest management regimes in action. You might first notice clear-cut monoculture industrial forest lands, where sunlight falls on huckleberries and salal growing between an armada of stumps. Next door you would see lands owned by the Bureau of Land Management (BLM), thick with an unthinned monoculture of trees and revealing relatively little active management. Finally, you could see the Coquille Indian Tribe’s forest, certified by the Forest Stewardship Council (FSC) and the only forest able to meet the social, economic, and environmental goals of the 1994 Northwest Forest Plan, where water quality is constantly monitored and native trees live long lives and create new habitat for a variety of native species.

The Coquille Forest symbolizes the efficacy and balance of tribal management. It is actively managed for multiple purposes. It protects listed species, creates old growth, and creates jobs. It advances tribal cultural restoration and encourages public recreation. Considering all relevant factors, the Coquille Indian Tribe’s forest is the most well-managed in the region, which makes many wonder why tribal management should not extend to nearby and adjacent federal lands. The opportunity for that to happen is drawing nearer.This article examines how the federal government encourages tribal management of federal natural resources and provides some clues about future roles that tribes may play in federal lands management.

This article does not address the off-reservation enforcement of treaty-based claims. For an excellent examination of tribal co-management as a right derived from off-reservation treaty claims, please see Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, Envtl. L. 279 (2000).

The Coquille Indian Tribe has no treaty or large reservation and lives in an isolated part of rural Oregon. Perhaps the Coquille Indians’ greatest assets are their concern for their place in the world and their interdependent relationships with their surrounding communities. The relative success of the Coquille Forest can be traced back, in part, to the Coquille worldview, which balances environmental protection with economic security. On one hand, the Coquille Tribe recognizes that natural resources are not a mere commodity, but part of a complex interrelated ecosystem to be managed for long-term benefits. On the other hand, the tribe believes that active management of forests provides a basis for subsistence. The historical record indicates that the Coquille Tribe never simply lets nature take its course. They have, since time immemorial, actively managed their ancestral forests through controlled burns, tree girding, and encouragement of desired native species. The Coquille live and work near their forest. They directly experience the consequences of their management choices. As they do so, they gain firsthand knowledge of their place in the world and how to live there.

There is a growing willingness to include indigenous worldviews in federal land management. There are many positive social, environmental, and scientific consequences of this policy. First, tribes possess, to varying degrees, “traditional ecological knowledge” (TEK). “Traditional ecological knowledge” is defined as “a cumulative body of knowledge, practice and belief, evolving by adaptive processes and handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment.” Fikret Berkes, Sacred Ecology—Traditional Ecological Knowledge and Resource Management (1999). TEK is anecdotal, dynamic, and shared among a native community. It has the capacity to add to scientific knowledge. For example, modern development of aspirin (derived from willow bark); digitoxin (a congestive heart treatment drug derived from foxglove); and quinine (a malaria treatment derived from cinchona) all can be traced to TEK. It is arguably in the national interest to assure that each region’s native population perpetuates its practices of gathering and adapting TEK.

Second, tribal management leverages financial resources in addition to those normally available from federal and state governments. Many tribes are willing and able to use their tribal resources or to seek grant or foundation funding opportunities to manage federal lands.

Third, tribal management is relatively uninfluenced by the ebb and flow of national or state politics, which have dramatically impacted natural resources management on federal lands, not always yielding positive or science-based outcomes.

Lastly, tribal management is intrinsically stabilizing because tribes have an inherent interest in both the health of their aboriginal lands and their local economies. Generally, a native cultural ethos balances a need to conserve resources for future generations with a need to provide a current livelihood. Mary Christina Wood, Nature’s Trust: Reclaiming an Environmental Discourse, 25 Va. Envtl. L.J. 243, 265 (2007).

Today, the federal government leverages these advantages by working with tribes to “co-manage” natural resources, even when that management does not directly affect tribal lands and resources. Co-management in this context goes beyond the mere carrying out of a management prescription. It builds on the foundation of the special relationship between a tribe and the federal government. “Comanagement embodies the concept and practice of two (or more) sovereigns working together to address and solve matters of critical concern to each. Co-management is not a demand for a tribal veto power over federal projects, but rather a call for an end to federal unilateralism in decision making affecting tribal rights and resources. It is a call for a process that would incorporate, in a constructive manner, the policy and technical expertise of each sovereign in a mutual, participatory framework.” Ed Clay Goodman, Protecting Habitat for Off-Reservation Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, 30 Envtl. L. 279, 284–85 (2000).

Two broad federal policies, the federal trust responsibility and Tribal Self-Determination, have influenced the expansion of tribal management. Many Indian lands are called “trust lands” because they are technically held in trust by the Bureau of Indian Affairs (BIA) for the benefit of Indian people or tribes. The federal trusteeship historically imposed traditional fiduciary obligations on the federal government. United States v. Mitchell, 463 U.S. 207 (1983). Today, however, many consider the federal trust responsibility to be at risk of significant change. In 2003 the U.S. Supreme Court opined that the BIA’s responsibility over trust lands depends, in many instances, on the degree to which it manages day-to-day activity there. United States v. White Mountain Apache, 537 U.S. 465 (2003). Remaining, however, is broad federal acknowledgment that tribes and the federal government have a “special relationship.” This unique relationship is referenced in virtually every piece of modern Indian legislation. Although there are few, if any, detailed descriptions of that relationship, one consequence is the development of closer, more consultative relationships between tribes and federal agencies. On November 6, 2000, President Clinton signed Executive Order 13175, which called on each federal agency both to consult with tribes whenever considering policies that have tribal implications and to maximize use of agency discretion and waivers in response to tribal concerns. Executive Order 13175 created a communicative standard of practice between tribes and federal agencies. On November 5, 2009, President Obama issued a Memorandum for the Heads of Executive Departments and Agencies, Subject: Tribal Consultation (Nov. 5, 2009), which again emphasized the importance of consultation and collaboration between tribes and federal agencies and required each agency to submit a plan to implement Executive Order 13175. Today tribes and federal agencies frequently meet to discuss items of mutual interest. The conversations inevitably include natural resource topics and create opportunities to discuss partnerships between tribes and federal agencies.

The broad federal policy of Tribal Self-Determination is currently the dominant federal approach to Indian affairs. It is based on the recognition that tribal governments are the fundamental governmental units to implement Indian policy. Under this approach, the federal government works to strengthen tribal government capacity to operate programs for the benefit of their communities. As will be shown below, this policy has directly led Congress to adopt laws transferring federal functions to tribes, including co-management functions. Before the modern Self-Determination Era, federal policies centralized decision making for Indian lands, timber, and other resources in the BIA. The BIA nearly exclusively handled all decisions pertaining to Indian lands and federal programs for Indians. This approach perpetuated American Indians’ dependence on federal services and benefits. The BIA took management actions on tribal lands with little or no communication or cooperation with Indian or tribal landowners and gave little consideration to traditional management knowledge, values, or skills. But few or none of these services did much to assist Tribal Self-Determination or to assimilate Indian people. The actual effects were to increase poverty and dependence.

Beginning with the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. §§ 450 et seq. (ISDEAA), Congress embarked on a new approach. The ISDEAA offers tribes the opportunity to undertake—for themselves—nearly all BIA programs serving tribes and Indian lands. Funding to perform these responsibilities is transferred in the form of contracts negotiated on a government-to-government basis each year. ISDEAA participant tribes are still subject to audits and federal spending restrictions, but overall the ISDEAA has been lauded as a success. In 1975, when it was passed, only 1.5 percent of BIA programs were administered by Indian tribes and organizations. Today more than one half of these programs are tribally operated. These programs have also allowed tribes to develop and focus their expertise in natural resources and other fields, often in ways that complement the capacities of federal natural resources agencies.

The ISDEAA signaled a change in federal Indian affairs policy. In a few decades, hundreds of tribal government assumed operation of their own federally funded programs. This positive experience made subsequent legislation transferring federal authority less controversial.

Between 1990 and 2010 Congress passed several laws expanding the authority of tribes to exercise delegated federal Environmental Protection Agency (EPA) authority in Indian country. These laws offered tribes the opportunity to obtain “treatment as a state” (TAS) status under several federal environmental laws, including the Clean Air Act, Clean Water Act (CWA), Toxic Substance Control Act, and the federal Insecticide, Fungicide and Rodenticide Act. For example, the CWA authorizes states to adopt water-quality standards for waters within their boundaries and to issue and enforce discharge permits (under the oversight of EPA). In 1987, Congress amended the CWA to authorize EPA to treat tribes as states under CWA Section 518. Tribes that establish TAS status may establish water-quality standards for bodies of water within their reservations and may require and enforce permits for actions creating discharges into those waters. 33 U.S.C. § 1377(e). EPA has adopted a final rule implementing this provision, which requires the following for tribes to qualify for TAS status: (1) The tribe must be federally recognized; (2) the tribe must have a governing body carrying out substantial governmental duties and powers; (3) the functions to be exercised by the tribe must pertain to the management and protection of water resources which are held by the tribe, held by the United States in trust for the tribe or otherwise within the borders of the reservation; and (4) the tribe must be capable of carrying out the functions of the Act. 40 C.F.R. § 131.8(a) (2011).

Although the CWA authorizes tribes to enforce water-quality standards for waters within the reservation borders, this power alone would do little to ensure that waters entering those reservations meet tribal water-quality standards. Consequently, federal courts and EPA have recognized the authority of TAS participant tribes to regulate upstream off-reservation discharges. For example, in Wisconsin v. EPA, the Seventh Circuit stated that

[o]nce a tribe is given TAS status, it has the power to require upstream off-reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters (assuming for the sake of argument that the reservation standards are more stringent than those the state is imposing on the upstream entity.

Wisconsin v. EPA, 266 F.3d 741, 748 (7th Cir. 2001), citing Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).

It should be noted, however, that tribal TAS authority is extended only with EPA’s supervision and is tempered by EPA’s CWA regulations authorizing EPA to mediate conflicts caused by different tribal and state water-quality standards. Still, the TAS statutes advanced the federal policy of Tribal Self-Determination and expanded tribal off-reservation management authority.

In recent years, the federal government has taken more steps to involve tribes in federal resources management. For example, the 1994 Tribal Self-Governance Act, 25 U.S.C. § 458aa et seq. (TSGA) expands tribal rights to manage federal programs. Much of the TSGA focuses on tribal authority and flexibility to perform on-reservation federal programs. One key provision, however, authorizes the transfer of management over Department of the Interior (DOI) off-reservation programs that have special geographic, historical, or cultural significance to a tribe. 25 U.S.C. § 458cc(c). This little-utilized provision breaks ground in two ways. First, it expressly authorizes tribal management of a wide range of off-reservation programs. Second, it makes Interior programs (such as those performed by the Bureau of Reclamation, National Park Service, and BLM) and their associated funding potentially available for transfer to tribes. Each DOI agency retains discretion over whether to transfer requested programs to tribes. Perhaps for this reason only ten of 564 federally recognized tribes entered self-governance funding agreements with non-BIA bureaus in 2008 and 2009.

A similar program is found in the 2004 Tribal Forest Protection Act, 25 U.S.C. § 3115a (TFPA), authorizing the secretaries of Interior and Agriculture to contract with tribes to restore federal land that “borders on or is adjacent to Indian forest land or rangeland.” The TFPA was created in the wake of destruction caused when a 2003 Southern California wildfire ravaged more than ten reservations. To qualify for a TFPA contract, a tribe must show that the adjacent or nearby federal lands pose a fire, disease, or other threat to a tribal community or Indian forest land or rangeland and that the land to be managed “presents or involves a feature or circumstance unique to that Indian tribe (including treaty rights or biological, archaeological, historical or cultural circumstances).”

In 2009 the Intertribal Timber Council (ITC), a national nonprofit organization dedicated to improving the management of natural resources of importance to Native American communities, reported that serious impediments to federal agency and tribal use of the TFPA remain. In response to concerns raised by tribes and agency staff, the U.S. Forest Service is contracting with the ITC to investigate the level of TFPA utilization by tribes. The results of that study should be available in September 2012. Legislation like the “treatment as a state” statutes, the TFPA, and the TSGA express Congress’ desire to see tribes engage in specific management projects to influence conditions on lands having some special tribal importance or effects on tribal lands. As noted above, these efforts have grown out of the policy of Tribal Self-Determination, the federal trust responsibility, and rights that tribes have under various treaties, statutes, executive orders, and at common law. These are all, essentially, efforts to help tribes help themselves succeed.

In some cases, federal agencies contract with tribes for other purposes. Federal executive agencies have pursued tribal co-management under the authority of their organic agency laws, such as the Federal Land Policy and Management Act of 1976 (FLPMA), the Fish and Wildlife Act of 1956, and the Multiple Use and Sustained Yield Act of 1960. One good example of this approach is in Idaho, where the U.S. Fish and Wildlife Service (USFWS) and the Nez Perce Tribe have implemented a tribally crafted wolf recovery plan with great success. This process began with the tribe itself developing a USFWS-approved Wolf Recovery and Management Plan. This plan called for management actions both on and off the Nez Perce reservation lands and on and off Nez Perce treaty ceded lands. Recognizing the Tribe’s many years of efforts, the USFWS executed a Cooperative Agreement with it in 1999 under the authority of the Endangered Species Act (ESA), Fish and Wildlife Coordination Act, and the Fish and Wildlife Act. This Cooperative Agreement authorizes the Tribe—with USFWS funding—to perform a variety of management activities both on and off the Tribe’s ceded territory. In 2005 the USFWS approved an additional wolf recovery plan prepared by the state of Idaho, and the state joined in the wolf recovery effort through a separate Memorandum of Agreement with the tribe. Today, the USFWS-sponsored wolf recovery project represents a sustained thirty-year effort by the tribe.

The Nez Perce / USFWS / State of Idaho co-management is founded on a cooperative agreement entered under the broad authority of the ESA and two broad organic acts. This approach is advantageous because it allows the contracting parties to craft a government-to-government agreement that is tailored to the needs of the resource. A similar approach was used in the dry climate of central Oregon, where federal lands managers have successfully prevented and suppressed fires on thousands of acres of Forest Service and BLM lands. This success has bred its own challenge, however, as these agencies have more acres requiring fuels treatment than they can manage. Nearby, the Confederated Tribes of the Warm Springs Reservation (CTWS) own and operate Warm Springs Forest Products, a long-standing and well-respected forestry and forest-product operation. The CTWS power their Warm Springs Forest Products mill by biomass cogeneration.

In 2006, under the authority of the Multiple Use and Sustained Yield Act and FLPMA, the Forest Service and the BLM entered a Memorandum of Understanding for the Purpose of Providing a Framework for Planning and Implementing Forest and Rangeland Restoration and Fuels Reduction Projects (the CTWS MOU). Under the CTWS MOU, the Forest Service and BLM agreed to offer the CTWS 8,000 acres of forestland per year for forest restoration and fuels reduction projects in exchange for CTWS forestry, planning, and administrative resources within the Mt. Hood National Forest, the Willamette National Forest, the Deschutes National Forest, the Ochoco National Forest, the Crooked River Grasslands, and the Prineville District BLM lands. The CTWS also agreed to pursue an upgrade of their biomass facility’s net generation capacity.

The Nez Perce and CTWS MOUs represent an evolution in tribal co-management of federal lands because, in addition to recognizing the special relationship between the federal government and Indian tribes, these agreements (1) expressly acknowledge the value of tribal natural resources knowledge, capacities, and expertise; (2) result from and recite a long-term positive working relationship; (3) do not impose treaty or aboriginal use boundaries on the lands where tribal management expertise may be used; and (4) reflect an exchange of resources between tribes and the federal government. This approach—negotiating a memorandum of agreement on a government-to-government basis—allows for great flexibility available through direct government-to-government contracting under the authority of organic federal natural resources management laws.

There are, however, concerns to be addressed in any proposal to delegate federal power to an Indian tribe. First, parties must be cognizant of the risk of Congress delegating too much executive power to third parties. The federal nondelegation doctrine, derived from the U.S. Constitution, limits Congress’s authority to pass laws delegating executive power to nonfederal officials. Generally, the U.S. Supreme Court allows Congress to make delegations outside the federal government if the delegation includes specific limits on the delegate’s powers and discretion. American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946). This concern applies mainly when Congress passes legislation authorizing a third party to exercise executive power or responsibility. To some degree, this risk is minimized in delegations to tribes. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U.L. Rev. 62, 111 (1990). The TSGA itself prohibits the delegation of “inherently federal functions,” 25 U.S.C. § 458dd. These functions have been interpreted to include powers that federal courts determine to fall under the nondelegation doctrine, and discretionary functions that are vested solely in federal officials (presumably by statute), such as the approval of a natural resource sale or the issuance of a Record of Decision (ROD) or Finding of No Significant Impact (FONSI) under the National Environmental Policy Act (NEPA). Provided that there were no constitutional issues, Congress could vest tribes with some of these functions as well, on a case-by-case basis.

Second, parties should consider the consequences of tribal sovereign immunity. Tribal sovereign immunity acts as a general bar to adjudicative subject-matter jurisdiction. Stakeholders might be concerned about delegations of executive power to tribes if they have no means to enforce applicable laws or agreements. This immunity can be waived either by Congress or by an authorized body of the particular tribe, although a waiver must be clear and unequivocal. Such waivers, however, are not welcomed by tribes, many of which believe themselves to be victims of historically racist or insensitive legal and political processes. Perhaps a better approach may be for Congress to authorize federal agencies to delegate powers and retain the authority to revoke delegations under appropriate circumstances. This way, the federal agency would remain involved and ultimately liable for management actions.

Lastly, there are political ramifications to tribal management of nontribal resources. Antitribal sovereignty groups have raised concerns—factual or not—about management projects between tribes and federal agencies, and many impoverished rural areas happen to be candidate locations for tribal management projects. Tribal management also frequently clashes with business or conservation advocacy groups. Today, in Idaho’s Salmon River watershed, the Nez Perce Tribe works with the Forest Service to limit domestic sheep grazing on public lands over concerns that this activity spreads fatal disease to native bighorn sheep, which are a culturally important species to the tribe. This effort has raised serious concerns from sheepherders, causing a conflict that has not made life any easier for the Forest Service. Nevertheless, the Forest Service has continued to move forward with a tribally implemented plan that has shown success in restoring bighorn populations. There are also concerns for tribes considering co-management. Some Indian law scholars caution tribes that states partnering with tribes under co-management agreements may use such agreements (or courts may interpret such agreements) in such as way as to undermine tribal sovereignty. Shelly Stokes, Ecosystem Management Plans: A Sound Approach or a Threat to Tribal Rights? 27 Vt. L. Rev. 421, 441 (2003).

Despite legal and political challenges, tribal natural resource management remains a viable alternative worthy of consideration, and many new and collaborative approaches are developing across the nation. Back at the forested hills of southwestern Oregon, the Coquille Indian Tribe’s FSC-certified forest lies between a checkerboard of BLM-managed forestlands called the Coos Bay Wagon Road (CBWR) lands. At least 51,000 acres of these CBWR lands lie within the tribe’s adjudicated aboriginal homeland. Although federal law prescribes that revenue from these lands will be provided to counties, the BLM manages these lands on a forest-thinning regime that provides very little funding. Due to the threat of protests and lawsuits, the BLM has not approved any regeneration harvest in this area for years. As a consequence, the BLM has been unable to meet the economic targets of the Northwest Forest Plan.

For several years, the tribe and Coos County, where these lands are located, have worked on a plan for the tribe to manage these federal lands and share revenues with the county. Under this plan, the BLM would transfer broad management authority to the tribe, but the tribe would continue to manage the lands under the ESA and other applicable federal laws. The tribe would have the opportunity to develop a management plan for the project area in cooperation with the County. Ultimately, the Secretary of the Interior would retain the authority to stop the project if the tribe was found to violate the ESA. This project would give the Coquille the opportunity to expand their successful forest management across their aboriginal lands, facilitate Spotted Owl recovery, improve native fish habitat, increase old growth, and help a financially strapped rural county continue to provide basic services. If Congress acts on this proposal, it may just be a small Oregon tribe that demonstrates the ultimate advantages of Tribal Self-Determination and Tribal Co-Management.

Brett Kenney

Mr. Kenney is the tribal attorney for the Coquille Indian Tribe in North Bend, Oregon.