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.