Federal policy concerning Native Americans and Alaskan Natives has taken many forms since the founding of the United States. Rooted in the trust relationship with Tribes and Native people, current federal policy encourages Tribal self-determination and greater sovereignty. Now in the so-called self-determination era, the legislative and executive branches increasingly seek opportunities for Tribal involvement in federal programs. For example, in December 2023, President Biden penned Executive Order 14112 to “Promote the Next Era of Tribal Self-Determination.”
Co-management and co-stewardship agreements are one area that has been gaining increasing attention. Co-stewardship agreements are broad collaborative agreements between federal land managers and Tribes. These agreements may include sharing technical expertise; combining federal and Tribal capabilities; and centering Tribal knowledge, experience and perspectives as an integral part of the public’s experience on federal lands. Co-management agreements, on the other hand, involve delegation of some final federal decision-making power. In 2021, Secretary of Interior Deb Haaland and Secretary of Agriculture Tom Vilsack signed Joint Secretarial Order 3404, which encourages federal agencies to enter into co-management and co-stewardship agreements with Tribes.
Because the Constitution vests power to legislate in Congress, federal agencies must ensure that they are acting pursuant to an intelligible principle—an expression of congressional intent. Similarly, when these agencies subdelegate some of their power through co-management and co-stewardship agreements, agencies must ensure that: (1) Congress provided statutory authorization for the subdelegation; or (2) that the agency retains final review authority. Because agencies do not delegate final review authority under co-stewardship agreements, co-management agreements typically require a stronger statutory basis. Many of the agreements discussed in this article are referred to as “cooperative agreements.” Although the term is rooted in federal procurement law, the statutes highlighted do not define “cooperative agreements.” Under the Indian canons of construction, the secretary must construe statutes liberally in favor of Tribes, interpreting ambiguous provisions to their benefit. Thus, the secretary should interpret the term more broadly than under federal procurement law.
This article briefly discusses authorities the U.S. Forest Service (Forest Service) and the Bureau of Land Management (BLM) may rely on to enter into co-management and co-stewardship agreements with Tribes to manage national forests. The Forest Service manages the National Forest System, 193 million acres; nearly 4 million of those acres are national grasslands. Although not part of the National Forest System, BLM manages 58 million acres of forests and woodlands. Forests comprise nearly 40 percent of all federal lands.
The Multiple Use Sustained Yield Act (MUSYA), authorizes the Secretary of Agriculture to cooperate with “local governmental agencies and others” to develop and manage national forests. Tribal governments are not expressly mentioned, but depending on the specific tribal entity, a plain meaning interpretation could reasonably categorize Tribal governments as either “local governmental agencies” or “others,” neither of which are defined in the Act.
Tribal governments are however, expressly referenced in the Wyden Amendment, which permits the Secretary of Agriculture to enter into cooperative agreements with Tribal governments to protect, restore, and enhance watersheds. These efforts may either be related to “fish and wildlife habitat, and other resources on public or private land,” or they may be to reduce impacts caused by natural disasters that threaten public safety. For each agreement, the secretary is to provide technical assistance. Unlike other agreements, costs of implementing projects under this amendment are shared by the Forest Service and the contracting Tribe.
Finally, the Forest Service may enter into general agreements with Tribes under the Cooperative Funds and Deposits Act. This act authorizes a wide range of cooperative agreements, to provide sanitation services, job training, educational resources, and forestry protection. Funding appropriated to the Forest Service covers these projects.
The Indian Self-Determination and Education Assistance Act (ISDEAA) offers broadest authority for BLM to enter into cooperative agreements with Tribes. The Self-Determination Act is perhaps best known as a vehicle to transfer to tribal entities management of programs that are available to Indians because of their status as Indians, such as Bureau of Indian Affairs programs. More broadly, and relevant to public lands, ISDEAA authorizes BLM to enter into agreements with Tribes when a Tribe has a special geographic, historic, or culturally significant connection to the project. The act removes barriers to encourage these agreements in two ways.
First, ISDEAA commands the Secretary of Interior to “interpret laws to facilitate inclusion of programs, services, functions, and activities.” Tipping the interpretative scales in favor of Tribes almost certainly allows for more ISDEAA agreements. Adding more flexibility for Tribes, the act permits Tribes to submit a request to waive relevant regulations, which the secretary must approve unless waiver is prohibited by federal law.
Tribes may request the federal government fund the ISDEAA agreement, and the tribe may elect to include a stable base budget specifying the amount of recurring funds. The Act prevents the secretary from revising, amending, or requiring additional terms in a new or subsequent funding agreement without consent of the Tribe. Importantly, the secretary is prohibited from entering into agreements for functions that are inherently federal—which are generally functions that 1. require significant discretion, or 2. are constitutionally prohibited from being delegated.
Although most provisions of the Tribal Forest Protection Act (TFPA) apply to both agencies, one section applying only to the Department of Interior permits BLM to enter into cooperative agreements for job training, educational resources, and facility improvements. The last category relates directly to natural resources, rather than buildings, focusing on fire prevention, reforestation, timber and stand improvement, and debris removal.
The Act’s other provisions authorize BLM and the Forest Service to enter into agreements or contracts with Tribes to either protect Indian forest land or rangeland, or to restore adjacent federal lands. To engage in management of Forest Service or BLM land, that land must meet four criteria. First the federal land must be adjacent to land under tribal jurisdiction. Second, the federal lands must either: (1) pose fire, disease, or other threats to adjacent Indian lands or a Tribal community; or (2) the land must be in need of “restoration activities”—an undefined term. Third, the federal land must not be contracted under a conflicting stewardship agreement. Fourth, the land must have a certain level of importance to the Tribe, such as implicating treaty rights, or having certain biological, archaeological, historical, or cultural significance to the tribe. In determining whether to enter into an agreement with a Tribe, the secretary may use a best-value basis and give weight to tribally related factors in the proposal. Some of these factors include the Tribe’s treaty rights, their Indigenous knowledge and skills, their connection to the proposed contracted land, and preexisting working relationships between the Tribe and the federal agency coordinating the activities. Contract terms under these agreements may last up to ten years. A separate provision under the TFPA permits BLM and the Forest Service to contract with tribal organizations through ISDEAA to carry out administrative, management, and other functions under the TFPA.
Two sections within the Federal Lands Policy Management Act (FLPMA) permit Tribal engagement. The first concerns land use plans and is limited to consideration of Tribal land use plans. Under that provision, the Forest Service must coordinate with Tribal resource management plans when conducting inventorying, planning, and management activities for federal lands. And when Tribal plans are relevant, the Service must assure consideration when developing land use plans for public lands. To the extent practicable, the Forest Service must keep apprised of Tribal land resource management plans. The provision also commits BLM to resolving inconsistencies with federal and non-federal land use plans. A second FLPMA provision permits BLM to enter into contracts and cooperative agreements involving management, protection, development and sale of public lands. This provision does not expressly mention tribes, and provides limited funding.
Anticipating that increased public land use would adversely impact rural subsistence users, Congress enacted the Alaska National Interest Lands and Conservation Act (ANILCA) to provide additional management and conservation considerations for fish and wildlife. Under ANILCA, BLM and the Forest Service may enter into cooperative agreements with “Native Corporations” or “other appropriate persons and organizations” to carry out the purposes and policies of ANILCA. Native corporations are a uniquely Alaskan phenomenon, formed by the Alaska Native Claims Settlement Act—a tool to settle all aboriginal title claims in Alaska.
Lastly, the Good Neighbor Authority authorizes agreements for forest restoration on federal, non-federal, and Indian owned land. Restoration activities under this act include treating insect and disease-infected trees, reducing hazardous fuels, and any other general improvements to forest, rangeland, and watershed health.
In sum, the arc of federal policy toward Native Americans and Alaskan Natives continues to move in a direction of increasing respect for Tribal sovereignty. The authorities discussed above demonstrate this. Providing increased Tribal engagement in forestry management may not only benefit Tribes, but also federal lands.
