chevron-down Created with Sketch Beta.


The Fight Brought to our Cultural Doorstep: Tribal Co-Management of Dispossessed Lands

Marlee Goska


  • Provides background on Native land dispossession in the United States and traditional ecological knowledge.
  • Describes historical and recent developments, challenges and limitations, and key attributes of federal/Tribal co-management of public lands in the U.S.
  • Discusses the Blackfeet Nation and their traditional cultural lands in the Badger-Two Medicine Area and the Jemez Pueblo and their traditional cultural lands in the Valles Caldera.
The Fight Brought to our Cultural Doorstep: Tribal Co-Management of Dispossessed Lands
Alexander Spatari via Getty Images

I. Introduction

The dominant non-Indigenous view of land conservation in the United States sees nature as a pristine oasis, where plants and wildlife exist and flourish without the presence or interference of humans. That view is reflected in both the National Park Service Organic Act and the Wilderness Act, which use phrases like “unimpaired” and “untrammeled” when referring to nature. What the organic acts and the dominant view forget is that, for thousands of years Indigenous people occupied the land now known as the United States, living in, and actively shaping and managing nature. The colonialist and paternalistic view regarding the incompatibility of conservation with the occupancy and use of land by Indigenous people has dominated federal public land management for nearly 200 years, further enabled by federal Indian law and historical policies rooted in racism and stereotypes.

Recently, tribal co-management strategies have emerged as one possible approach to righting some of the historic wrongs that the United States has inflicted on Indigenous people in relation to their traditional cultural lands. Under tribal co-management policies, federal agencies work with Indigenous people in decision-making and policy setting for dispossessed Indigenous lands. While this approach does not erase or fully correct the long legacy of wrongs inflicted on Indigenous people in the United States, if carried out correctly, it may be one step in the direction of recognizing both Indigenous people’s long relationship with the land and Indigenous sovereignty. In particular, a tribal co-management approach may be appropriate in helping resolve two ongoing disputes between the federal government and Indigenous tribal governments regarding traditional cultural lands currently owned and managed by the U.S. government: disputes involving (1) the Blackfeet Nation and their traditional cultural lands in the Badger-Two Medicine Area, administered by the U.S. Forest Service (USFS), and (2) the Jemez Pueblo and their traditional cultural lands in the Valles Caldera, administered by the National Park Service (NPS).

II. Background: Native Land Dispossession in the United States and Traditional Ecological Knowledge

The infamous 1823 Supreme Court case Johnson v. M’Intosh can be credited with the origin of both federal Indian law and public lands law. In that case, the Court held that the Doctrine of Discovery gives the discovering sovereign the power to extinguish the Aboriginal title of occupancy and that, while Indigenous people have a legal claim to occupy and use the land without ownership of it, their title is nontransferable. Johnson v. M’Intosh stripped Indigenous people of their property, property rights, and self-sovereignty and charted the path for centuries of dehumanizing laws, policies, and attitudes toward Indigenous people and their relationships with the land. An additional result of the Johnson v. M’Intosh holding was that because the federal government had exclusive power over purchase or transfer of Indigenous land, it also had the responsibility to decide the fate of the vast land area that was subject to Aboriginal title. That land area included places set to be designated for management by federal land management agencies like the NPS and the USFS.

The prevailing view of most non-Indigenous conservationists, both historically and today, is that nature is at its best when left alone and that, before western settlers arrived in the United States, the land was a pristine wilderness untouched by humans. Those attitudes are reflected in the National Park Service Organic Act of 1916, which created the NPS, and the Wilderness Act of 1964.

The stated purpose of the National Park Service Organic Act “is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of…future generations.” There is no mention in the purpose section or elsewhere in the Act of the people who originally lived on and tended to the lands that now make up the National Parks.

Similarly, the Wilderness Act’s stated purpose is “to assure that an increasing population . . . does not occupy and modify all areas within the United States . . . leaving no lands designated for preservation and protection in their natural condition.” The Wilderness Act goes on to define wilderness as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain” and as “an area of undeveloped land retaining its primeval character and influence, without permanent improvements of human habitation.” The language of the Wilderness Act completely omits any recognition of the thousands of years that Indigenous people spent living in (and stewarding) wilderness, instead choosing to endorse the fiction that, before western settlers arrived, the land was devoid of humans and human influence.

The exclusion of Indigenous people from the federal public land conservation scheme through the NPS and the Wilderness Act was not inevitable. A few early conservationists, like artist George Catlin and writer Henry David Thoreau, wanted to set aside for protection national preserves that included Indigenous people and their way of living. However, their ideas were superseded by the now-dominant way of thinking by the time National Parks first came to fruition in 1827, with the establishment of Yellowstone National Park in Wyoming. By then, parks were seen as “a pleasuring ground for the people,” and not a home to anyone, with writers like John Muir espousing the idea that conservation of nature and human occupation were mutually exclusive.

In addition to successfully advocating for the creation of National Parks to the exclusion of Indigenous people, Muir also espoused expressly racist views, as is apparent from many derogatory statements he made about both Indigenous and Black people. For example, during a visit to Alaska, he referred to Native Alaskans, who were kind enough to show him their traditional cultural lands, as ignorant and superstitious, while calling the surrounding landscape of the future Glacier Bay National Park majestic. He also referred to the Native Americans living in and around the future Yosemite National Park as “mostly ugly, and some of them altogether hideous,” and said they had “no right place in the landscape.” This way of thinking dehumanized Indigenous people and made it easier to justify ejecting them from their traditional cultural lands.

Others spread misinformation that helped further obscure the loss to Indigenous people when they were dispossessed of their traditional cultural lands in the name of conservation. For example, when negotiating with the Blackfeet Nation for the cessation of eastern Glacier National Park lands, one federal government agent incorrectly stated that “[the mountains] never furnished you houses; never fed your cattle nor fed you and clothed you . . . the mountains offer you nothing but snow and ice and rock.” Ultimately, the popular view that land conservation was not compatible with occupancy and use by Indigenous people led to the dispossession of numerous Indigenous lands in furtherance of conservation goals, enabled by the holding of Johnson v. M’Intosh, which provided the legal backdrop for those land takings.

Along with a refusal to acknowledge the harmful repercussions of public land conservation, disdain for what is now often referred to as traditional ecological knowledge (TEK) has also permeated mainstream western views for much of the past. TEK (or as some prefer to call it, Indigenous ecological knowledge) may be defined as

A cumulative body of knowledge and belief handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with the environment. Further, TEK is an attribute of societies with historical continuity in resource use practices; by and large, these are non-industrial or less technologically advanced societies, many of them Indigenous or tribal.

Western scientists have historically been dismissive of TEK, and referred to it as “pre-logical” and “irrational,” in another example of the insidiousness of racism toward Indigenous people in western culture.

More recently, however, both western scientists and non-scientists alike have begun to recognize the value of TEK, despite its differences from western scientific ecological knowledge. While TEK always held inherent social and cultural value, western scientists have since acknowledged that there is much to be gained from TEK, including new biological and ecological insights, “rules of thumb” to be followed in contemporary natural resource managements, and accurate environmental assessments when weighing costs and benefits of development and other actions that have ecological impacts. It is now widely accepted in the scientific community that Indigenous people and “the knowledge held by them do have something to contribute.”

Additionally, the value of TEK has begun to be recognized in western policy and law. For example, Canada’s new Impact Assessment Act sets out to “provide an effective means of integrating scientific information and Indigenous knowledge into decision-making processes related to designated projects.” Other countries, like Australia, have recently acted to partner with Indigenous people as co-managers of public lands, in recognition of the value that TEK provides.

Relatedly, it is worth noting that the views of Native Americans toward the environment are not universal, although many similarities may be identified. One common belief among many Indigenous cultures that has been identified by multiple studies is a view that “Earth is a living, conscious being that must be treated with respect and care,” and that a relationship with nature should be based on “concepts of respect and duty rather than rights and claims.” When compared to mainstream western values, which “stem from Christianity, capitalism, and technology,” “promote a view of nature as a commodity,” and the Earth as a “nonliving collection of natural resources to be exploited,” stark cultural differences become apparent.

The differences in attitudes toward nature does not mean that Indigenous people do not, or will not, pursue economic development that cause some level of environmental harm. The stereotypes of Indigenous people as environmental stewards who have “always lived in harmony with nature” and will always “reach better decisions than non-Indians” are endemic and worthy of close examination. While many studies have confirmed the ubiquitous presence of the importance of nature and land in Indigenous cultures, those historic relationships should be recognized while not being stereotyped or fetishized. Refusing to do so means continuing to dehumanize Indigenous individuals and tribes and further “depriving tribes of their sovereignty.” Moreover, it limits the ability of Indigenous people to make decisions that may involve some level of environmental harm or exploitation by trapping them in a stereotype and refusing them the ability to adjust to changing circumstances and the modern problems that they may face (e.g., the possibility of economic development on reservation lands being funded by the extraction of fossil fuels).

In light of the above history of the dispossession of Indigenous lands and recent recognitions by western science of the value of TEK, co-management is one possibility for taking steps to both right some of those historic wrongs and allow Indigenous people to take the lead in making land management decisions.

III. Federal/Tribal Co-Management of Public Lands in the United States

A. The History of and Recent Developments in Tribal Co-Management
Despite improvements in federal Indian policy, including recognition of tribal sovereignty and self-determination, in general, the federal government has continued to exclude Indigenous people from public land management decision-making. Ideally, the next era in federal Indian policy would incorporate Indigenous cooperative management (co-management) of traditional Indigenous lands administered by the federal government.

The term “co-management” was first used in reference to Indigenous fishing treaty rights in the Pacific Northwest in the late 1960s and 1970s. There, Oregon and Washington State governments attempted to restrict the ability of Indigenous people to assert their treaty rights to “[take] fish at all usual and accustomed grounds and stations.” In several judicial opinions, federal district courts and the Ninth Circuit Court of Appeals ordered the state governments to work with Tribal governments in a co-management approach, to manage fisheries in the area. Despite the court orders, the states were often recalcitrant in sharing their power.

As a result of the states’ continued refusal to honor Indigenous treaty rights, the federal courts oversaw implementation of the co-management requirement to “ensure that the Tribes have ‘meaningful participation in the regulatory process.’” Similarly, courts in the Great Lakes region forced stubborn state governments into co-management relationships with the Ojibwe Tribes after the states refused to honor the Tribes’ hunting, fishing, trapping, and gathering treaty rights.

Federal co-management agreements with Indigenous people have followed, also initially forming with respect to Indigenous treaty rights to access and use the “usual and accustomed places” that are located on federal public lands. Courts have also been involved in forcing federal agency action in these relationships, like in the case of the Klamath Tribes’ assertion of their treaty rights, which led to a court order enjoining USFS timber sales that would harm deer herds on traditional Klamath lands.

In other areas, federal agencies have taken action without being prompted by litigation and subsequent court orders. One such example is an agreement between the USFS and the Yakama Tribe “regarding exclusive use of an area on the Gifford Pinchot National Forest during huckleberry season” and another is an exemption for members of the Nez Perce Tribe from USFS campground fees and stay limits “when they are practicing treaty rights on ceded territory.” Notably, in both cases, the agreements honored treaty reserved rights to access resources on ceded lands, rather than reaching the level of full co-management of dispossessed lands.

An example of a more expansive federal/tribal agreement exists between the USFS and the Leech Lake Band of Ojibwe in regard to the Chippewa National Forest in Minnesota. There, in an effort to navigate tribal treaty rights in the Chippewa National Forest, the USFS and the Leech Lake Band of Ojibwe signed a memorandum of understanding (MOU) in 2019. The MOU was entered into after decades of disputes over treaty rights on the Chippewa, including litigation in the federal courts in the District of Minnesota and the Eighth Circuit.

The MOU is notable for its depth because it calls for the “[development of] a shared decision-making model,” “utilizing Traditional Ecological Knowledge,” and “expanding the Tribal Forest Protection Act to give voice to the Band’s land management objectives.” It also “includes specific and mutually agreeable protocols for communication, consultation, monitoring, and dispute resolution.” Perhaps most importantly, the MOU also provides for “early and meaningful tribal engagement and coordination in [USFS] decision making, at the project and plan level.”

Congress may also authorize or require federal agencies to engage in tribal co-management. The clearest example is of a 1994 amendment to the Marine Mammal Protection Act to provide for Indigenous subsistence use in Alaska:

The Secretary may enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and provide co-management of subsistence use by Alaska Natives… [for purposes including:] (1) collecting and analyzing data on marine mammal populations; (2) monitoring the harvest of marine mammals for subsistence use; (3) participating in marine mammal research conducted by the Federal Government, States, academic institutions, and private organizations; and (4) developing marine mammal co-management structures with Federal and State agencies.

In another example, the Department of Interior recently transferred all lands within the National Bison Range to the Bureau of Indian Affairs, to be held in trust for the Confederated Salish and Kootenai Tribes (CSKT) of the Flathead Reservation in Montana. Previously, there had been an effort between the U.S. Fish and Wildlife Service (FWS) and CSKT to co-manage the National Bison Range, with an official agreement in 2004 that fell apart within several years. The agreement ended in large part due to the bad faith efforts on the part of several FWS employees to work with CSKT. After years of efforts to reach a workable co-management agreement, the land transfer means that CSKT will now fully manage the Bison Range for the first time since 1908, when the United States took the land from the Flathead Indian Reservation. FWS will continue to provide operational and financial support for the next two years, with CSKT eventually fully funding management and conservation of the range.

B. Key Attributes of Successful Federal/Tribal Co-Management Agreements
In a 2020 report on Tribal Co-Management, Monte Mills and Martin Nie, two law professors at the University of Montana Alexander Blewett III School of Law, identify several core principles and attributes of successful federal/tribal co-management relationships. First, they acknowledge that setting definitions within a tribal co-management agreement is important, as they create “mutual understanding and common expectations.” But, they find that what matters most are a set of six fundamental principles: (1) recognition of tribes as sovereign governments within the co-management regime; (2) incorporation of U.S. trust responsibility, including recognizing an obligation to include tribes in the decision-making process and ensuring that tribes have sufficient funding and capacity to co-manage effectively; (3) legitimation structures for tribal involvement, including community education on tribal roles in decision-making; (4) integration of tribes early in the decision-making process so that tribes can shape projects and decisions at the outset and not just respond reactively; (5) recognition and incorporation of tribal expertise, including TEK, and a significant degree of deference by the agency concerning management related to tribal treaty rights; and (6) dispute resolution mechanisms to address disputes that may arise between co-managers.

C. Challenges and Limitations to Co-Management in the United States
One hurdle to true co-management––in which Indigenous governments and the United States are on co-equal footing––is the subdelegation doctrine. The subdelegation doctrine is a subset of the nondelegation doctrine (which requires a delegation of legislative power by Congress to an executive agency to include an “intelligible principle” to guide the agency, thus keeping the delegation of power constitutional). Specifically, the subdelegation doctrine sets limitations on delegation of authority from executive agencies to nonfederal entities. There are three limitations: (1) that the delegation of authority to a third party is not in conflict with the statute granting the federal agency its authority, (2) that the federal authority retains final oversight over third-party decisions, and (3) that there are no conflicts of interest present in the third-party recipient of the subdelegated power.

In the context of true co-management, the largest obstacle of the three limitations is likely the second––that final decision-making authority must be reserved to the federal agency. There may be ways to mitigate this limitation though. For example, Canada (which operates under similar legal restraints) has Fisheries Joint Management Committees that require ongoing dialogue between Indigenous co-management committee members and government officials and for government officials to substantively justify any decisions contrary to the committee’s recommendations. The United States could pursue a similar model if it wanted to pursue true co-management with Indigenous tribal governments.

IV. Two Case Studies in Pathways for Co-Management

A. The Blackfeet Nation and the Badger-Two Medicine Area
The Blackfeet Nation is one of the largest tribes in the United States, with 17,321 members. The Blackfeet Nation’s home is the Blackfeet Indian Reservation in northwestern Montana, with its reservation boundaries extending to the gateway of Glacier National Park to the west, the Canadian border to the north, and to the Great Plains to the south and east. The Reservation contains an abundance of natural beauty, including rolling prairies, scenic rivers, dense forests, flourishing wetlands, and awe-inspiring mountains; it also contains rich natural resources, including forestlands, hundreds of miles of streams, and abundant wildlife, including endangered species like grizzlies, lynx, and wolverines.

The following words were spoken by a Blackfeet Indian statesman in a 1996 address and reflect the “principal belief system of the Blackfeet Indian tribe:”

Our religion is inseparably connected to the land. The mountains especially hold a great significance. In our beliefs “natural” and “spiritual” are one and the same. The mountains are essential to our religion; they provide the solitude of a pristine natural setting which enables our people to communicate with the Creator.

Through their beliefs and culture, the Blackfeet hold the utmost respect and even reverence for nature and consider themselves to be stewards of the land. Blackfeet culture employs oral tradition to share the importance of “the Rocky Mountains as the backbone of the Old Man, Napi (the Creator)” and the “sacred headwaters that flowed from the mountains [which] were the veins that flowed from the heart and stretched outward to sustain all of Napi’s creations.” The Medicine Lodge, a sacred ritual undertaken by the Blackfeet each year, “serves to reconcile the people to the past in the form of renewing ties with the Mother Earth.”

Besides the land contained within its reservation boundaries, the Blackfeet Nation also has several external cultural areas, which are sacred to Blackfeet tribal members. Due to their significance, these areas are still used by many Blackfeet members to carry out their traditional and cultural religious practices. One of these areas is Badger-Two Medicine, located adjacent to the reservation’s southwest corner, as seen in Figure 1.

Figure 1: Blackfeet Indiana Reservation and Badger-Two Medicine

Image reprinted with permission.

Figure 1: Blackfeet Indiana Reservation and Badger-Two Medicine

The Blackfeet Nation was recently placed in the national spotlight when the D.C. Court of Appeals upheld the Department of the Interior’s cancellation of the last remaining federal oil and gas lease in the Badger-Two Medicine area in Solenex LLC v. Bernhardt. In its opinion, the court recognized the importance of the area to the Blackfeet Nation:

The Two Medicine Area has long held a special place in the cultural history and religious life of the Blackfeet Tribe. The Tribe's oral history describes how its people began to suffer and die shortly after the world's creation. Seeing that suffering, the Creator returned to the Blackfeet and took them into the countryside and mountains of what would become the traditional Blackfeet territory, including the Two Medicine Area. There, the Creator introduced the Blackfeet to healing trees, bushes, and plants, and taught them how to seek the Creator and other spirits. Seeking those spirits, which is a central and inseparable part of the Tribe's religion and lifeway, requires the Blackfeet to be in the proper geographical location and to undertake special preparations for religious ceremonies in the area.
The Two Medicine Area's topography includes high mountain peaks and river valleys, and it offers relative isolation and a supply of high-quality plants, animals, and minerals, all of which are central to the Blackfeet people's religious, spiritual, and cultural practices. For those reasons, it remains a place of spiritual power for the Blackfeet people because it is there that the spirits remain and where the Blackfeet can go, as they have been for centuries in accordance with their beliefs and traditions, to be alone near Creator Sun while still standing on Mother Earth so that their prayers can be heard by these two Creators.

Members of the Blackfeet Nation and environmentalists alike celebrated the conservation victory in Solenex LLC, as many non-Blackfeet and non-Indigenous people also recreate in and appreciate Badger Two-Medicine and sought to protect its breathtaking natural landscape.

B. The Jemez Pueblo and the Valles Caldera
The Jemez Pueblo (Jemez) are a federally recognized tribe in Northern Central New Mexico, with over 3,400 tribal members. Joe Sando, a Jemez tribal member and prominent historian, writes of the Jemez people and their historical relationship with nature:

The secret of their existence was simple: They came face to face with nature but did not exploit her. They became a part of the ecological balance instead of abusing and destroying it, accepting the terms of their environment and becoming a part of the land, utilizing what the land had to offer without changing it.

The Jemez people, likely prompted by drought, moved from their ancestral home near the Four Corners area around 1300 A.D. During their migration, Jemez traveled southward and settled on the southern side of the Jemez Mountains. There, the Jemez built many shrines in their new home area, at locations including Tsung-paa-gi (“sad spring”), Wa-ha-bela-wa (“butterfly place”), and Wa-ve-ma (“flower mountain”). The Jemez people still use these places today, but most are not owned by the Jemez, and so ceremonial visits require permission of the non-Indian landowner.

At the center of the Jemez Mountains is the Valles Caldera, the “collapsed and dormant center of [a] super volcano which, not spent of its force, has settled into a rich basaltic soil covered with pine forests, surrounded by peaks, and etched with wide grass valleys or ‘valles.’” For over 800 years the Jemez have lived in the lower lands of the Jemez Mountains, and used the Valles Caldera for its rich natural resources, including hunting and gathering, timber, and agriculture, and for cultural activities, including rituals and use of the hot springs for healing ceremonies. By the mid-1500s, the Jemez had about 30,000 tribal members, with many villages made up of “stone-built fortresses,” some with 3,000 rooms, on the high mountain mesas and canyons.

Remarkably, the Jemez people still inhabit the land where they lived when European invaders first encountered them. When the Spanish arrived in 1541, they seized vast areas of Jemez traditional cultural land under the auspices of a cedula that allowed for “conquerors” to be compensated in land. The Spanish also brought their Christian religion, and operated under a decree stating

That Indians should be brought together in settlements and should not continue living separated and apart in the mountains and forests, deprived of every spiritual and temporal benefit, without the aid of a minister and without the help which human needs require and which men should extend to one another.

Under Spanish law, the Jemez, like other Indigenous people, were not allowed to sell their land without permission of the government. This policy was adopted by Mexico, after it gained control of the area now known as New Mexico during the Mexican Revolution of 1820, and later by the United States.

In 1868, the United States gave the wealthy Mexican Cabeza de Baca family 500,000 acres of their choice in New Mexico, in exchange for land in and around present-day Las Vegas. One of the areas the Baca family chose as part of the deal was 100,000 acres in the Valles Caldera. The land subsequently descended through the Baca family and was split apart and sold to other non-Jemez individuals, who grazed sheep and extracted timber from the area to a level that caused permanent ecological damages. Despite all of these developments, during the nineteenth and twentieth centuries the Jemez people continued their traditional and customary activities in the Valles Caldera, seemingly without conflict with the landowners.

In 2000, the United States purchased 95,000 acres within the Valles Caldera from private landowners when President Clinton signed the Valles Caldera Preservation Act. The Act created the Valles Caldera National Preserve. While the Act of 2000 seemingly preserved the ability of the Jemez to continue to carry out their traditional activities, it required that the Preserve be operated as a profitable ranch, while simultaneously allowing for preservation of Jemez activities and requiring that the “long-term scenic and natural values of the area [not be unreasonably diminished].” This conflicting mandate presented numerous issues.

Ultimately, the federal government’s ability to realize a profit by ranching in the Valles Caldera was deemed unsuccessful and, in 2014, the United States tried again. It passed the Valles Caldera National Preserve Act of 2014, transferring management of the preserve to the National Park System (NPS). The Valles Caldera National Preserve can be seen in geographic context in Figure 2. The Act of 2014 stated that

The Secretary, in consultation with Indian tribes and pueblos, shall ensure the protection of traditional cultural and religious sites in the Preserve. . . . The Secretary, in accordance with Public Law 95-341 (commonly known as the "American Indian Religious Freedom Act") (42 U.S.C. 1996)––(i) shall provide access to the sites described. . . by members of Indian tribes or pueblos for traditional cultural and customary uses; and (ii) may, on request of an Indian tribe or pueblo, temporarily close to general public use 1 or more specific areas of the Preserve to protect traditional cultural and customary uses in the area by members of the Indian tribe or pueblo.
Figure 2: Valles Calderra National Preserve

Valles Caldera, National Park Service, (last visited March 25, 2021).

Figure 2: Valles Calderra National Preserve

Meanwhile, while the Act of 2014 was still being finalized, the Jemez filed a legal action under the Quiet Title Act in 2012. In its lawsuit, the Jemez sought a declaratory judgment that it had “the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing Aboriginal title to such lands.” In 2019, a federal District of New Mexico judge held that the “Jemez does not possess [A]boriginal title to the lands that encompass the Valles Caldera National Preserve, and, accordingly, does not have the exclusive right to use, occupy, and possess those lands; [and] title to the Valles Caldera National Preserve is quieted in Defendant United States of America. . . ”; In the opinion, the judge found that “[a]lthough the evidence proves that Jemez Pueblo has actually and continuously used and occupied the Valles Caldera for a long time, the evidence also shows that many Pueblos and Tribes also used the Valles Caldera in ways that defeat Jemez Pueblo's Aboriginal title claim.”

The Jemez subsequently filed a motion asking the court to “reconsider its ruling and grant Jemez Pueblo [A]boriginal title to four discrete areas within the Valles Caldera.” In a September 2020 opinion, the court held that the Jemez could not lay claim to any of the discrete areas. The Jemez appealed the decision to the Tenth Circuit Court of Appeals in October of 2020 and the case is still being briefed.

C. Pathways for Blackfeet Nation and Jemez Pueblo Co-Management
While ultimately it may be the most just outcome to fully return federal public land ownership to Indigenous people, the likelihood of the federal government choosing to do that anytime in the near future remains low (but not impossible). In the meantime, tribal co-management could be a way of ensuring Indigenous people have access to, and a meaningful voice in deciding what happens to, their traditional cultural lands.

The Blackfeet Nation has already taken steps toward a co-management designation for the Badger-Two Medicine Area. Within days of the Solenex LLC decision, the Blackfeet Nation released a draft congressional bill to permanently protect the Badger-Two Medicine as a Cultural Heritage Area, which Senator Jon Tester of Montana introduced to the Senate soon after. The proposed Badger-Two Medicine Protection Act, drafted by the Blackfeet Nation in cooperation with partners across Montana, would require the USFS to engage in tribal consultation for its management decisions, incorporate TEK in the Badger-Two Medicine management plan “to the maximum extent practicable,” and provide for the Blackfeet Nation to carry out maintenance activities in the area.

Unfortunately, soon after the draft bill was introduced, at least one prominent environmentalist vocally opposed the designation of Badger-Two Medicine as a Cultural Heritage Area. Instead, he wanted the area to be designated as a federal wilderness area under the Wilderness Act, giving it the strictest level of conservation protection. In part, his concern stemmed from the fact that a Cultural Heritage Area would be the first of its kind, whereas wilderness designation was a tried and true method of protection. Additionally, he was concerned about logging that would be permitted under the “vegetation management” provisions of the proposed statute and that other language would permit grazing, an practice that is often ecologically harmful, to continue indefinitely in Badger Two-Medicine.

A wilderness designation, however, would be prohibitive of some of the traditional and cultural uses that members of the Blackfeet Nation would like to continue to undertake in the area, limiting their use of land the Blackfeet had fought so hard to protect. The exceptions that do exist for Native American cultural practices would also not be extended to those who the federal government does not recognize as Indians. A wilderness designation would also continue the historic trend of exclusion of Indigenous people from land management decisions regarding lands that they lived on and stewarded since time immemorial.

Ultimately, the opposition to tribal co-management of Badger-Two Medicine, and the preference for protection under the Wilderness Act, has the same roots in the colonialist, paternalistic, and harmful views espoused by Muir and others––that nature, in its purest form, exists without human interference or habitation. Opposition to tribal co-management in this instance is also based in concerns about the Blackfeet Nation carrying out potentially harmful activities, including logging and grazing in Badger-Two Medicine. This questioning of the ability of Indigenous people to make land management decisions, including those that may cause some level of environmental harm, also furthers a colonialist view that minimizes tribal sovereignty: federal, state, and local governments, along with private landowners have carried out extractive capitalist practices on the land for hundreds of years virtually unchallenged until the recent past. The idea that the Blackfeet Nation cannot be trusted to work in tandem with the USFS to make land management decisions regarding a culturally sacred area shows that some modern day environmentalists still espouse some of the same inherently problematic ways of thinking as their forebearers, like Muir.

Additionally, holding the Blackfeet Nation to an impossible standard when it comes to land management, and requiring the Blackfeet to conform to the previously discussed stereotype of steward of the environment, would also be inappropriate. After all this time, the federal government, and the people of the United States, should allow the Blackfeet Nation to exert their sovereignty and make decisions about the land that has held cultural significance for them for thousands of years.

While the proposed Badger-Two Medicine Protection Act was not voted on by the 116th Congress, advocates for tribal co-management hope that the proposed bill still has a future in some form. In late January, President Biden issued a memorandum affirming the administration’s commitment to Indigenous people, tribal sovereignty and self-governance, and federal consultation with Tribal Nations in matters that affect their communities. Perhaps the 117th Congress, spurred on by the Biden administration’s directives and a desire to move federal Indian policy in a more just and equitable direction, will make time to vote on a Badger-Two Medicine Area tribal co-management bill.

While the Jemez’s claim for Aboriginal title to discrete areas of the Valles Caldera is still on appeal to the Tenth Circuit, tribal co-management with the NPS may be an option that the Jemez could pursue if they are unsuccessful. The Valles Caldera National Preserve Act of 2014 already includes language that provides for the NPS to consult with and consider the cultural significance of the area to the Jemez, meaning that there is already statutory authorization for deeper and more meaningful cooperation, including through a Tribal co-management agreement. While such an agreement may be cold comfort to the Jemez after losing their Quiet Title Act claim to the Valles Caldera, if the tribe ultimately sees co-management as desirable, a successful co-management relationship with the NPS may be a way for the Jemez to restore a greater level of tribal sovereignty over their traditional cultural land.

V. Conclusion

Centuries of racist and exclusionary policies toward Indigenous people define the norms of conservation and of federal public land management up to this point. While far less expansive than an ideal approach to righting the federal government’s long history of wrongs in regard to Indigenous people and their traditional cultural lands, tribal co-management policies, if carried out correctly, provide an opportunity for meaningful Indigenous engagement regarding policy setting and decision-making for their dispossessed lands. In particular, two ongoing disputes between the federal government and Indigenous people regarding traditional lands could benefit from consideration of a tribal co-management approach: the Blackfeet Nation and their traditional cultural lands in the Badger-Two Medicine Area, administered by the USFS, and the Jemez Pueblo and their traditional cultural lands in the Valles Caldera, administered by the NPS. A successful tribal co-management agreement could be developed based on the six principles described by Ed Goodman and espoused by Mills and Nie in their recent report culminating from years of research regarding tribal co-management.