Legal Landscape and Obstacles to Tribal Hazardous Fuels Reduction
There are currently several legal and social obstacles to not only cultural burning, but any type of fire prevention on behalf of tribes in California. One obstacle to fire prevention is the complex jurisdictional hurdles that tribes must navigate when attempting to complete fire prevention projects. A key document that governs fire management of any kind in California is the Master Cooperative Wildland Fire Management Agreement (Agreement). This is a negotiated agreement between federal agencies and Cal Fire and is meant to efficiently distribute resources and responsibilities for fire management across California regardless of jurisdictional boundaries. This is an important process, as wildfires cannot be expected to stay within one jurisdiction’s boundaries and it is more helpful to assign a geographic area to an agency ahead of time. The Agreement allows for the creation of Direct Protection Areas that can be managed by any agency, but each agency still has to comply with federal and state law. There are several laws that uphold the Agreement, but the key ones include the Reciprocal Fire Protection Act of May 27, 1995, and the National Indian Forest Resources Management Act of 1990.
Collaboration between federal and state agencies on fire protection is a positive effort, but the federal government maintains strict default oversight for forest planning that encompasses fire management on tribal lands. The Reciprocal Fire Protection Act provides that federal agencies that provide fire protection for federal lands may enter into a reciprocal agreement with any fire organization (private or public) for mutual aid in fire protection. 42 U.S.C. § 1856(a). Thus, this is the primary statute that encourages federal agencies to collaborate with Cal Fire. The National Indian Forest Resources Act applies to tribal trust and tribally owned fee lands and was originally enacted to protect tribes from trespass and unauthorized logging on tribal forest lands. 25 U.S.C § 3202. The Secretary of Interior is charged with management of Indian forest lands, either directly or through grants under the Indian Self-Determination Act. 24 U.S.C. § 3104. “Indian forest land” means Indian lands, including commercial and noncommercial timberland and woodland, that are considered chiefly valuable for the production of forest products or to maintain watershed or other land values enhanced by a forest cover, regardless of whether a formal inspection and land classification action has been taken. 25 U.S.C. § 3103. The National Indian Forest Resources Act and its implementing regulations at 25 C.F.R. § 163.11 require that forest management plans are created for all Indian forest lands and approved by the Bureau of Indian Affairs (BIA). It is interesting to note that while BIA consults with tribes on the creation of forest management plans, these plans are not created by tribes themselves and require BIA approval. In contrast, tribes may submit an integrated resource management plan that covers fee lands, but these must also be approved by BIA. Indian Forest Management Handbook 15. Prescribed fire is prohibited unless approved under a forest management plan, even if a fire management implementation plan already exists. Although not referenced under the Agreement, National Environmental Policy Act and California Environmental Quality Act review are required for any forest management plans on federal and state land, respectively, and can apply to individual cultural or prescribed burn projects as well.
Under the current Cooperative Fire Protection Agreement between BIA and Cal Fire, Cal Fire is responsible for fire suppression on Indian trust lands (except where tribes have agreed to take on this responsibility), including the Yurok Indian Reservation, but not fire prevention measures such as hazardous fuels reduction. BIA also does not provide direct funding for tribes to develop fire prevention programs. Under the National Indian Forest Act, there is still a requirement for BIA-approved forest management plans before a cultural or prescribed burn is conducted. With this much oversight, there is little incentive for Cal Fire to perform fire prevention on tribal land and little room for tribes to be involved in negotiations on fire planning. Tribal capacity to engage in fire planning at the government-to-government level depends on staff and funding, and tribal involvement is not mandated by law. Thus, there is virtually no funding or resources to complete hazardous fuels reduction on tribal lands in California.
The state of California has no official policy of working directly with tribes on hazardous fuels reduction, and the current California regulatory process for cultural burning is not clear. In general, a tribe or an individual must obtain a permit from Cal Fire to burn on private property located on tribal land. The process becomes less clear for cultural burns on state-owned lands or federal lands that may trigger environmental review or greater regulatory oversight—which can be cost prohibitive and time consuming. Cal Fire can also shut down cultural burns if it deems there is a wildfire risk, even if burn practitioners believe conditions are suitable for the burn. Another hindrance to prescribed burning and cultural burning is the amount of training time required to be certified by Cal Fire as a State Certified Prescribed-Fire Burn Boss, as there should be increased culturally integrated training and mentorship for these positions so that more indigenous trainees can earn the certification. Finally, local opposition to cultural and prescribed burning presents an additional obstacle. Many non-native residents living within a tribe’s ancestral territory have an ingrained fear of fire and smoke that inhibits the widespread use of cultural burning.
What the Future May Hold: Legislative and Regulatory Solutions
The legislative and regulatory solutions that would increase the success of cultural burning programs, like the one CFMC has, revolve around increasing the exercise of tribal sovereignty through participation in current fire management programs on a government-to-government level and providing direct, nongrant funding to tribes to increase culturally integrated fire management planning.
To increase tribal participation in current federal fire prevention programming, federally recognized tribes should be invited to participate in the negotiations between BIA and Cal Fire for any Cooperative Wildland Fire Management Protection Agreement. Direct Protection Areas (DPAs) are intermingled and adjacent lands delineated by boundaries regardless of jurisdictional agency. Wildland fire protection responsibility in these areas is negotiated, created, and agreed to by the administrative units of either the federal agencies or the state. For areas not identified in a specific DPA, protection of those lands reverts to the landowner. Every acre in California requires a responsible authority within the statewide DPA designation, including the designation of responsibility areas for entities not part of a Cooperative Wildland Fire Management Agreement. There should also be more collaboration between BIA and Cal Fire to provide direct funding to tribes for fire preparedness and prevention programs and to assume responsibility over DPAs. Currently, neither tax dollars nor direct funding is allocated to preventing fires on private lands within tribal reservations. Funding should be allocated based on a tribe’s projects and land base. Giving tribes more authority over fire prevention is critical to making communities safer and ecosystems healthier.
Tribes need to be able to have full authority to implement fire prevention, fuels reduction and vegetation management, and prescribed and cultural fire projects on tribal lands, including on- and off-reservation tribal co-managed lands, and other state, federal, and private lands within the ancestral territories. Due to the landscape-scale needs of most tribes, the amount of required funding, resources, technical support, and personnel cannot be overstated. States should directly fund tribes to develop culturally integrated spatial fire management plans on tribal lands and adjacent federal, state, and private lands within their historical ancestral territory. Based on the success of its Geospatial Information Technology department and all the support it offers to the Yurok Tribe’s projects, the Yurok Tribe will be utilizing geospatial information systems technology to produce spatially prioritized, strategic objectives and management requirements for wildfire suppression and prevention on its Tribal lands. In what appears to be a move to support tribes and rectify California’s past bias against cultural burning, the draft California’s Wildfire and Forest Resilience Action Plan (a part of the 2021 Climate Adaptation Strategy) proposes to provide direct funding to tribal governments to support cultural burning programs.
To be able to develop fire management plans, tribes also require more streamlined state, federal, and tribal regulatory processes over cultural burning. Currently, laws such as the California Environmental Quality Act and the California Endangered Species Act impede restoration projects and cultural burns and infringe on tribal sovereignty in the process. One potential solution would be to develop exemptions in federal and state law for tribal governments to conduct burn projects and clarify the current regulatory process applicable to cultural burns, as well as the ability for tribes to conduct cultural burning outside their reservations to protect resources and communities within ancestral lands. Cal Fire Burn Boss training that is inaccessible to tribal members due to the complexity and length of the time it takes to become qualified could be remedied with education on and support of cultural burn training that could supplement existing trainings. To further implement cultural and prescribed burning within and outside the current regulatory framework, the Yurok Tribe plans to assemble the guiding principles and lessons learned by the CFMC on burning practices and integrate these lessons into the Yurok Tribe’s natural resources planning.
Research to study the impact of prescribed and cultural burning on riparian and forest resources is necessary. Tribes may seek to incorporate cultural burning more seamlessly into their management plans by utilizing the Indian Trust Asset Reform Act, and specifically the Indian Trust Asset Management Demonstration Project. Under the Demonstration Project, tribes engaged in forest land management on trust lands may apply to participate. If selected to participate, tribes may submit an Indian Trust Asset Management Plan (ITAMP) for the management of tribal trust assets. An approved ITAMP allows tribes to develop tribal forestry regulations and assume certain approval authority that is currently held by the secretary of the Department of the Interior. This would allow tribes to deal with environmental laws internally and decide if their actions have an impact on the environment, allowing more flexibility with cultural burning and less state and federal intervention.
Cultural burning (utilizing good fire) is just one step towards adapting to and mitigating the effects of climate change. Luckily, the Yurok Tribe’s members have fought to keep it alive. For cultural burning to be effective, it must be implemented on a consistent basis and larger scale. If tribes partner together to push the state and federal government to recognize the tribal sovereign authority to do more cultural and prescribed burning, the result will be healthier ecosystems and climate resiliency for all parties impacted by climate change–induced wildfires. Tribes must continue to take the lead in California, and across many states, on cultural and prescribed burning by asserting sovereign authority to steward their tribal ancestral landscapes.