Incorporating Indigenous Stewardship in Land Management

In 2017, New Zealand (known to the Māori people as Aotearoa) passed groundbreaking legislation granting legal personhood to the Whanganui River after over a century of recurring legal efforts and political pressure by the Māori. Dana Zartner, Watching Whanganui & the Lessons of Lake Erie: Effective Realization of Rights of Nature Laws, 22 Vt. J. Env’t L. 1, 1–15 (2021). This revolutionary act, known as the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, recognized the river as “an indivisible and living whole” and further acknowledged the “inalienable connection” between the river and the local Māori tribe, the Whanganui Iwi, a connection marked by mutual responsibility for each other’s health and well-being. Te Awa Tupua Act, ss 12–13 (N.Z.). The Act incorporated Māori spiritual beliefs, including the concept of the river as an ancestor and living entity, into its legal framework. It also established Te Pou Tupua, a two-person office consisting of one Crown appointee and one Whanganui Iwi appointee who jointly function as the “human face” of the river. Id. at ss 18–20.

The Te Awa Tupua Act represents an innovative co-management approach to environmental protection that integrates Indigenous perspectives and land rights into resource management and recognizes the Whanganui Iwi’s vital role in the river’s guardianship. It provides a compelling model for reshaping environmental and land management laws in other countries, including the United States. Because it was developed in close partnership with Maori peoples, it led to an entirely new legal structure in which the Whanganui Iwi people are co-equal resource management partners with the New Zealand government. This arrangement created the opportunity for a local Maori tribe, the Whanganui Iwi, to incorporate their traditional knowledge not only into the measures taken to protect the river but also into the river management plan itself. For example, the Te Awa Tupua Act acknowledges the Māori’s cultural recognition that the Whanganui River is a living entity by legally codifying the legal personhood of the river. In this way, the New Zealand government is naturally leaning toward more robust environmental protection by way of its legal obligation to uphold the cultural and religious rights of Māori People. These elements of the Te Awa Tupua Act provide a template for effective resource management that should be developed in conjunction with Native Nations in the United States.

In parts of the United States, the federal government is beginning to incorporate increased Indigenous involvement in land management. As the United States expands its recognition of Indigenous land rights, it can draw inspiration from the Te Awa Tupua Act to develop more inclusive and effective environmental governance systems. The United States should follow this legislation’s example by explicitly incorporating Indigenous needs, practices, and perspectives into its land management policies.

There are some examples of co-management structures in the United States that indicate a trend in this direction. As further Indigenous-inclusive land oversight programs develop, however, they should consider the strengths of the Te Awa Tupua Act, including its collaborative development of a co-equal management structure and its explicit recognition that upholding religious and cultural rights of Indigenous groups requires governance policies that relate to the natural world on their terms.

The Te Awa Tupua Act: A New Legal Approach

The Te Awa Tupua Act blends Western legal concepts of personhood with Māori cosmological views of the Whanganui River as a living ancestor to create a unique framework for the river’s protection and management. Miriama Cribb et al., Beyond Legal Personhood for the Whanganui River: Collaboration and Pluralism in Implementing the Te Awa Tupua Act, Int’l J. Hum. Rts. 1, 3 (2024). The idea of granting legal rights to natural objects is not new; scholars like Christopher Stone have argued for this approach since the 1970s. Christopher D. Stone, Should Trees Have Standing?: Law, Morality, and the Environment 5–7 (3d ed. 2014). Countries around the world, including Ecuador, Bolivia, and Colombia, have already recognized the rights of nature in their respective legal systems. Kaitlin Sheber, Legal Rights for Nature: How the Idea of Recognizing Nature as a Legal Entity Can Spread and Make a Difference Globally, 26 Hastings Env’t L.J. 147, 161–62 (2020). However, the Te Awa Tupua Act represents the first time a particular river has been granted legal personhood in a national legal system. Ashley Westerman, Should Rivers Have Same Legal Rights as Humans? A Growing Number of Voices Say Yes, NPR (Aug. 3, 2019). The Act defines Te Awa Tupua as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.” Te Awa Tupua Act 2017, s 12. This definition reflects the Māori understanding of the river as an interconnected spiritual and physical entity that sustains both life and natural resources within the river and the health and well-being of the Whanganui Iwi.

The Te Awa Tupua Act represents a significant shift in environmental protection frameworks by explicitly incorporating Indigenous values and beliefs and by giving these values equal consideration as those of the national government. This approach aligns with the growing international recognition of Indigenous rights, as seen in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Sheber, Legal Rights for Nature, supra, at 161.

The Te Awa Tupua Act’s approach subverts the conventional Western understanding of natural resources as property to be exploited. Instead, it embraces the Māori conception of the environment as a living entity with intrinsic value. Cribb et al., Beyond Legal Personhood, supra, at 5. This incorporation of Indigenous values, perspectives, and knowledge into natural resource management has the potential to transform the way environmental policy is developed and implemented, moving away from a purely anthropocentric approach to one that accommodates beliefs in the inherent rights of nature. In this way, the Act creates a more holistic and expansive approach to managing natural resources.

Notably, implementing such a novel legal approach has encountered challenges when the management structure is not as clear and meticulous as the one set forth in the Te Awa Tupua Act. Shortly after New Zealand passed the Act, the High Court of Uttarakhand, a state in northern India, granted legal personhood to the Ganges and Yamuna Rivers. Sheber, Legal Rights for Nature, supra, at 159. However, this decision lacked a clear framework for implementing and enforcing the newly recognized rights of nature, leading to practical difficulties. The government of Uttarakhand argued that their “responsibilities as guardians of the rivers” were not clear because the rivers extend beyond Uttarakhand’s borders. Id. Ultimately, the Indian Supreme Court overturned the High Court’s decision due to “the risk of complicated legal situations and practical issues,” making India’s recognition of the rights of the Ganges and Yamuna Rivers short-lived. Id. at 161. The Te Awa Tupua Act, on the other hand, better addresses these challenges by establishing a detailed governance structure and explicitly defining the roles, responsibilities, and zones of authority for the various entities involved in the Whanganui River’s management.

Adapting the Te Awa Tupua Act to the U.S. Context

The Te Awa Tupua Act, with its innovative approach to environmental governance, provides a compelling blueprint for how the U.S. legal system could evolve to better protect the rights of Indigenous peoples and natural ecosystems. Although the current U.S. legal system does not readily accommodate the concept of nature’s rights, some Native Nations have sought to protect their sacred lands and waters by asserting their cultural and religious rights. See Malcolm McDermond, Standing for Standing Rock?: Vindicating Native American Religious and Land Rights by Adapting New Zealand’s Te Awa Tupua Act to American Soil, 123 Dick. L. Rev. 785, 787 (2019). Moving beyond the current status quo, the United States could emulate the Te Awa Tupua Act’s approach in reconciling Western legal concepts with Indigenous worldviews on the natural world’s primacy. This reconciliation can be achieved by centering the rights of Indigenous communities and accommodating their perspectives on environmental stewardship within the legal framework. By recognizing Indigenous perspectives on the natural world (such as a belief in the rights of nature) as an extension of Indigenous peoples’ right to freely engage in their cultural and religious practices, U.S. governance structures could sidestep the thorny question of whether natural resources themselves have intrinsic rights. Id. at 811.

Of course, importing the Te Awa Tupua administrative framework into U.S. law on the basis of Indigenous people’s religious rights could lead to legal challenges based on the Establishment Clause (although any such claim represents an open question given the unique peer government relationship between Native Nations and the U.S. federal government). Id. at 811 n.204. To avoid such issues, policymakers should steer away from incorporating explicit Indigenous religious practices into law when crafting co-management legal structures in the United States. Rather, policy construction should acknowledge that anything less than co-equal governing power over Native lands amounts to interference with the cultural and religious rights of Indigenous people. Indeed, the Te Awa Tupua Act reflects this conceptualization. Scholars Miriama Cribb, Elizabeth Macpherson, and Axel Borchgrevink note that although the Act has “gained international attention as a way of legislating rights of nature, it is better understood as a recognition of the state’s obligations in terms of Indigenous rights and authority[.]” Cribb et al., Beyond Legal Personhood, supra, at 2.

In this way, Indigenous perspectives on the crucial importance of nature for the health of their spiritual and physical lives can be included in U.S. land management law without significantly overhauling the U.S. legal system. As the following section will explain, there is a growing trend of Indigenous co-management in the United States (with both public and private entities) that suggests context-appropriate governance structures can be negotiated and implemented despite certain inherent challenges. At the same time, fully co-equal governance structures are currently uncommon in the United States, requiring more intentional and creative development.

Indigenous Co-Management Efforts in the United States

In recent years, there has been a growing movement toward Indigenous co-management of protected lands in the United States that recognizes Indigenous peoples’ “identification with the land [as] a fundamental aspect of their identity.” Seana M. McGovern, Reclaiming Education: Knowledge Practices and Indigenous Communities, 44 Comp. Ed. Rev. 523, 524 (2000). As Monte Mills and Martine Nie have noted, “co-management builds on the measurable successes of Indigenous-led conservation in the United States and internationally.” Monte Mills & Martine Nie, Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands, 44 Pub. Land & Res. L. Rev. 49, 152 (2021). In particular, this movement has aimed to prioritize traditional ecological knowledge by emphasizing “the relationship of living beings to one another and to the physical environment” in land management practices. Robin Wall Kimmerer, Weaving Traditional Ecological Knowledge into Biological Education: A Call to Action, 52 Bioscience 432, 432–33 (2002).

Co-management can take various forms, from collaborative arrangements between federal agencies and tribes to the transfer of land to Tribal Nations with a lingering governmental stake in its administration. One notable example of co-management in the United States is the creation of the Bears Ears National Monument in Utah. In 2015, the Inter-Tribal Bears Ears Coalition petitioned the Obama administration to dedicate 1.9 million acres of land as a national monument. The coalition proposed a collaborative co-management structure between itself and the federal government that, ideally, would incorporate local Indigenous tribes as “full partners with the United States in charting the vision for the monument and implementing that vision.” The Bears Ears Inter-Tribal Coalition Proposal to President Barack Obama for the Creation of Bears Ears National Monument 4 (2015). Although the Obama administration officially designated the land as a national monument in 2016, the Trump administration removed the designation for 85% of the original land area shortly thereafter. Audra Locicero, A Case for Tribal Co-Management of Federal Public Lands, 53 Stetson L. Rev. 543, 566 (2024).

In 2021, President Biden issued an executive order that restored the original boundaries of the national monument and reestablished the Bears Ears Commission, which was originally designated during the Obama administration and represents a close facsimile of the Inter-Tribal Bears Ears Coalition with representation from multiple tribes. Bears Ears National Monument, Pres. Proc. No. 10285, 86 Fed. Reg. 57,321, 57,332 (Oct. 8, 2021). Following this executive order, the Bears Ears Commission entered into an Inter-Governmental Cooperative Agreement with two federal agencies, the Bureau of Land Management and the U.S. Forest Service. This agreement required these governmental entities to “obtain meaningful input from the Commission” when developing and executing a management plan for the national monument. Inter-Governmental Cooperative Agreement Between the Tribal Nations Whose Representatives Comprise the Bears Ears Commission and the United States Department of the Interior, Bureau of Land Management and the United States Department of Agriculture, Forest Service for the Cooperative Management of the Federal Lands and Resources of the Bears Ears National Monument (2022).

Indigenous co-management efforts like the current Bears Ears Inter-Governmental Cooperative Agreement have taken strides toward addressing past injustices, promoting tribal sovereignty, and incorporating traditional ecological knowledge into land management practices. Yet, this agreement notably maintains federal agencies as the primary decision-makers, relegating the Commission to assist in an advisory capacity. Policies that more fully engage Native populations as co-equal partners in decision-making and stewardship, such as the Te Awa Tupua Act, can more significantly repudiate the historical dispossession and marginalization of Indigenous tribes while simultaneously ensuring more effective and culturally sensitive land management. Andrew Geddis & Jacinta Ruru, Places as Persons: Creating a New Framework for Māori-Crown Relations, in The Frontiers of Public Law (Jason Varuhas & Shona Wilson Stark eds., 2019).

As seen in the Bears Ear Inter-Governmental Cooperative Agreement, existing U.S. environmental laws and policies often limit the potential scope and effectiveness of Indigenous co-management. For example, many public land laws similarly fail to adequately recognize tribal rights and interests, privileging state governments and private interests instead. John D. Leshy, Public Lands and Native Americans: A Guide to Current Issues, 47 Pub. Land & Res. L. Rev. 1, 4–5 (2024). The Oak Flat land exchange in Arizona exemplifies these limitations and the controversies that can arise from legislative land exchanges in particular. Passed as a rider to the 2015 National Defense Authorization Act, this exchange transferred 2,422 acres of Tonto National Forest land, including the Oak Flat area sacred to some Apache tribes, to a private mining company. Unlike administrative exchanges, this legislative exchange was not subject to rigorous environmental review processes or public interest determination. The exchange has faced significant opposition from tribes and environmental groups, highlighting the need for more robust consultation and environmental review processes in legislative land transfers.

The Whanganui River model from New Zealand offers a potential solution by re-envisioning the human-nature relationship in ways that align with Indigenous worldviews and values. The Te Awa Tupua Act grants both formalized Indigenous roles in governance and rights-based protection to culturally significant natural features. The United States should follow suit by developing governance plans that uphold Native Nations’ cultural and religious beliefs by giving Indigenous people an equal say in the management of the natural resources that are essential to their traditional practices. This approach would better protect Indigenous rights and integrate Indigenous knowledge into resource management, potentially overcoming the limitations of existing environmental laws that have allowed for potential religious rights violations (as in the Oak Flat land exchange) and that have historically permitted high levels of environmental contamination and overexploitation. Such co-equal management structures also arguably represent a necessary step for the federal government to take in obtaining Indigenous peoples’ consent for decisions that affect them in accordance with federal trust responsibilities to act in the best interest of Native Nations. Nat’l Cong. of Am. Indians, NCAI Comments on Tribal Trust Compliance and Federal Infrastructure Decision-Making 1, 11 (Nov. 30, 2016).

Of course, implementing such an approach in the United States would likely face certain political and practical obstacles. Indigenous tribes may disagree among themselves regarding how natural resources should be governed in areas where multiple Native Nations have claims to the same natural resources. For example, in Alabama, the Muscogee (Creek) Nation has objected to the Poarch Band of Creek Indians’ decision to build a casino on a sacred Muscogee burial site after regaining control over the land. Graham Lee Brewer & Kim Chandler, A Bitter Fight Between Two Tribes over Sacred Lands Where One Built a Casino, Associated Press (Sept. 24, 2024). In addition, federal agencies face legal constraints in implementing co-management, as many land management statutes do not provide clear direction regarding which governing activities agencies can delegate to tribes. Mariel J. Murray, Cong. Rsch. Serv., Tribal Co-management of Federal Lands: Overview and Selected Issues for Congress, R47563, at 1, 22 (2023). Co-management approaches often require additional funding to provide Native Nations with the ability to meaningfully participate in governance. As such, resource constraints and varying degrees of resistance from governmental actors who may perceive co-management as a threat to their authority can curtail otherwise well-intentioned attempts to increase tribal control over federal land. Id. at 26–28. Such difficulties are compounded in scenarios involving the explicit transfer of lands back to Native Nations. Reverting legal interests in public lands to tribes almost always requires congressional action, which is subject to the influence of politicians and interest groups. Leshy, Public Lands, supra, at 29–30. Fear of setting a precedent for further land transfers remains a major concern among opponents of Indigenous co-management arrangements. Audrey Glendenning, Martin Nie & Monte Mills, (Some) Land Back . . . Sort of: The Transfer of Federal Public Lands to Indian Tribes Since 1970, 63 Nat. Res. J. 200, 252 (2023). Additionally, the complex web of federal, state, and tribal jurisdiction over public lands, along with the diversity of tribal histories and interests, could complicate efforts to balance viewpoints while applying a uniform model of respect for Indigenous perspectives and rights across different contexts.

While the challenges of implementing co-management on public lands remain significant (particularly, but not exclusively, in the context of public land transfer), private land transfers offer an alternative pathway toward collaborative Indigenous governance of culturally important areas. The ’O Rew property transfer in northern California exemplifies this approach. This agreement, which shifts 125 acres from the Save the Redwoods organization to the Yurok Tribe, demonstrates a practical application of “land-back” policies, where private landowners return Indigenous homelands to the tribes who originally inhabited them. Although more limited in scope than the Whanganui River agreement in New Zealand, which granted legal personhood to the entire river, the ’O Rew Memorandum of Understanding (MOU) establishes a co-management structure between the Yurok Tribe and the National Park Service for the site, serving as an entryway to Redwood National and State Parks. Nat’l Park Serv., Save the Redwoods League, the Yurok Tribe, and Park Partners Sign Historic Agreement to Return Tribal Land (Mar. 19, 2024).

This arrangement aligns with the principles of meaningful power-sharing and incorporation of Indigenous knowledge highlighted by Monte Mills and Martine Nie as crucial for successful co-management. Mills & Nie, Bridges to a New Era, supra, at 167. The MOU outlines a vision for the Yurok Tribe to construct a visitor center showcasing its history and culture as well as a traditional village, ensuring a substantial role in interpreting and presenting the site to the public. Nat’l Park Serv., supra. Further, the agreement’s recognition of the Yurok Tribe’s deep cultural connections to ’O Rew and the surrounding landscape echoes the importance of emphasizing Indigenous ties to land, as articulated by Audra Locicero. A Case for Tribal Co-Management, supra, at 545–46.

At the same time, the ’O Rew transfer also illustrates some of the limitations of such arrangements within the current U.S. legal framework. First, this arrangement, while innovative, still empowers existing NPS authorities rather than creating an entirely new legal framework. As such, the Yurok Tribe’s ability to fully exercise co-management powers may be limited. In addition, the transfer was only 125 acres, a fraction of the size of the Bears Ears agreement, where nearly two million acres were given the National Monument designation. The co-management structure envisioned in the MOU, while groundbreaking, still operates within the confines of existing NPS authorities rather than a collaborative effort with the tribe to create a new legal framework, as was the case in the Whanganui River agreement. As a result, the ability of the Yurok Tribe to exercise its co-management authority may be stifled by federal agents’ strong connections to entrenched networks of power and influence.

Indigenous Rights and the Future of U.S. Environmental Law

Future co-management efforts in the United States should strive to go beyond the Bears Ears and ’O Rew models and require a commitment to meaningful power-sharing and the incorporation of Indigenous knowledge. Mills & Nie, Bridges to a New Era, supra, at 54–55. To successfully incorporate the lessons of the Te Awa Tupua Act, tribes must be equal partners, not merely advisors, in the stewardship of their ancestral lands. Where possible, co-management arrangements should be designed to transcend the limitations of existing legal frameworks by centering Indigenous conceptions of land, resources, and reciprocity.

Advancing Indigenous co-management in the United States will require a combination of approaches tailored to specific contexts and communities. Whether or not such approaches involve land transfer, opportunities exist for public and private landowners to acknowledge historical tribal connections and support Indigenous peoples’ present-day relationship to the land. For example, the City of Oakland granted a cultural conservation easement to the Indigenous women-led Sogorea Te’ Land Trust in an effort to repair tribal relations with the city and to support tribal land management and restoration practices. Vanessa Racehorse & Anna Hohag, Achieving Climate Justice Through Land Back: An Overview of Tribal Dispossession, Land Return Efforts, and Practical Mechanisms for #LandBack, 34 Colo. Nat. Res. Energy & Env’t L. Rev. 175, 205 (2023). Strategies among private landowners that have emerged include cultural access agreements, harvest permits for plants with cultural significance, and formalized land invitation licenses. Alisa White, Private Law for Land Back, 51 Ecology L.Q. ___ (forthcoming 2025).

Ultimately, the success of co-management will depend on building trust and relationships between Indigenous and settler governments to create new, mutually beneficial ways of sharing responsibility for the lands and waters that sustain us all. Despite the inherent challenges in this pursuit, the growing momentum behind Indigenous co-management in the United States suggests that new approaches and models are worth exploring. The Te Awa Tupua Act offers valuable lessons on how to center Indigenous values, knowledge, and participation in the governance of culturally significant lands and waters. Future co-management efforts should follow this example by allowing the Indigenous community to help create equal co-management frameworks and by ensuring that management plans integrate Indigenous perspectives. By creatively adapting and applying these lessons to the U.S. context, policymakers, tribes, and advocates can work toward more just, equitable, and effective co-management arrangements that honor tribal sovereignty and stewardship.