Tribes and Tribal Management

Inquiring minds might wonder why there has been only limited use of TFPA and GNA in this area, compared to other places, and how (or if) this bill would help that (other than providing funding?)

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Jon posted this news story in a comment yesterday, and I think it’s innovative enough to deserve its own post. We’ve talked about what “co-management” means, and how it’s interpreted.  I think we have to look very specifically at what is meant.  Let’s develop a range of options- these are just some.   Talking more? Sharing information? Using traditional ecological knowledge? Prioritizing projects of interest to Tribes?  Giving Tribes’ views on management priority over other members of the public? Giving projects supported by Tribes some relief from litigation?  Giving Tribes a seat at the table during legal settlements involving projects of concern? Conceivably, 1, 2, 3 and 4 are called co-stewardship, and all Forests (and the BLM) are supposed to be doing those, and they don’t require specific treaty rights or specific legislation.

WASHINGTON (KTVZ) — Rep. Earl Blumenauer and Senator Ron Wyden, along with Senator Jeff Merkley, reintroduced the Wy’east Tribal Resources Restoration Act. The legislation directs the U.S. Forest Service to partner with the Confederated Tribes of the Warm Springs to develop a co-management plan for agreed-upon Treaty Resource Emphasis Zones.

The legislation would establish one of the first placed-based co-management strategies in the nation.

It was introduced last Congress, and had a hearing in the Senate Committee on Energy and Natural Resources.

“Indigenous communities have been responsible stewards of Oregon’s lands and wildlife since time immemorial. We must do more to capitalize on their leadership in our conservation efforts—not just because the federal government has a moral obligation to do so but because we will not be successful without them,” said Blumenauer. “Tribal co-stewardship represents 21^st?century public lands management.”

“The Confederated Tribes of Warm Springs have generations-long knowledge of best ecological practices and treaty rights with the federal government that must be protected,” Wyden said. “This legislation would secure both goals in the Mount Hood National Forest by giving the Tribe an important voice and role in the management of its precious cultural resources.”

“The Confederated Tribes of Warm Springs are the largest neighbor to the Mt. Hood National Forest and are essential in maintaining and protecting the region’s cultural and ecological resources,” said Senator Jeff Merkley. “This legislation is a critical step in fulfilling our treaty and trust responsibilities to the Warm Springs community by creating a framework for them to take an active role in co-managing the forest and utilizing their knowledge, traditions, and expertise to improve forest management.”

The Wy’east Tribal Resources Restoration Act:

· Directs the U.S. Forest Service to develop a co-management plan with the Confederated Tribes of the Warm Springs to protect and enhance Tribal Treaty resources and protect the Reservation from wildfire within agreed-upon “Treaty Resources Emphasis Zones.” These zones are areas within the Mount Hood National Forest subject to the Warm Springs-Forest Service co-management plan;

* Requires implementation of the Cultural Foods Obligations, which were included in the Public Lands Management Act of 2009 but have never been implemented;

· Integrates traditional ecological knowledge as an important part of the best available scientific information used in forest and resource management areas within the Zone;

· Authorizes $3,500,000 in annual appropriations and the use of existing Forest Service revenue to ensure the Tribe is a full participant in management.

Click here for bill text. Click here for a one-page fact sheet.

“We are grateful to Rep. Blumenauer and Senator Wyden for this legislation. Warm Springs people have cared for the land since the Creator placed us here, and this legislation will help reconnect Wy’east to its original inhabitants and integrate traditional ecological knowledge into federal land management. The bill would allow the Warm Springs Tribe to improve fish and wildlife habitat, reduce forest fuels and wildfire risk in the borderlands of our Reservation — an area designated as a priority fireshed by the U.S. Forest Service.? The result will improve forest and wildlife health for the benefit of all Oregonians,” said Warm Springs Chairman Jonathan Smith.

Note that all the folks quoted, except for Sustainable Northwest, are all recreation outfits of various kinds.

I thought that this was interesting, it seems to relate to the Zones of co-management and echoes the 2001 Roadless Rule (except off the top of my head the RR did not have the language “promote fire resilient stands.”

(C) include requirements that no temporary or permanent road shall be constructed within a Zone, except as necessary
‘‘(i) to meet the requirements for the administration of a Zone;
‘‘(ii) to protect public health and safety;
‘‘(iii) to respond to an emergency;
‘‘(iv) for the control of fire, insects, diseases, subject to such terms and conditions as the Secretary determines to be appropriate; and
‘‘(D) to the maximum extent practicable, to meet the purposes of this section, provide for the retention of large trees, as appropriate for the historic forest structure or promotion of fire-resilient stands.

Maybe I’m reading this wrong, but it sounds like the intention is to have specific areas on the Forest to be co-managed for various reasons including wildfire resilience, without temporary roads.  Which doesn’t really seem like co-management, suppose the Tribe wants to move material offsite for whatever reason? It seems like co-management within parameters the politicians have decided with the same analysis and litigation processes as currently exist.  So what’s the advantage to the Tribe, or to the taxpayer other than more discussion and integrating TEK (everyone’s supposed to do that), and for which a statute is not needed?  Actually it seems more restrictive to wildfire resilience than the current situation, based on the roadless-like requirements, so that’s puzzling.

Finally, I guess another question, perhaps more philosophical, is “suppose Tribes’ ecological knowledge is that temp roads are useful”?  Maybe it’s not Traditional, but then who decides?  Seems like sovereignty would say that Tribal views and knowledge are important, no matter what over what time frame this knowledge was developed. Here’s a USFWS definition of TEK.

Traditional Ecological Knowledge, also called by other names including Indigenous Knowledge or Native Science, (hereafter, TEK) refers to the evolving knowledge acquired by indigenous and local peoples over hundreds or thousands of years through direct contact with the environment. This knowledge is specific to a location and includes the relationships between plants, animals, natural phenomena, landscapes and timing of events that are used for lifeways, including but not limited to hunting, fishing, trapping, agriculture, and forestry.

There might be an implicit colonizer bias here that Indigenous knowledge stopped being valuable when immigrants shared new technologies.  Like other humans, Tribal folks adapt new ideas and technologies that work for them- in ways that might be different from the technologies as introduced.  Think horses, woodstoves, and temp roads. What would a court case look like in which a Tribe argued that temp roads, done their way, used the best available science based on Current Indigenous Ecological Knowledge?

Anyway, I could have gotten this wrong, and I realize that there is a theatrical element to proposed legislation, so would appreciate thoughts of folks who know more.

This story map is nicely done.  Shout out to the folks who produced it!

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If you, readers, have something you are proud of.. please send it in and I will share.  Some FS people do this, but as with our piece on SERAL, there are many great stories out there.  And I know of some great work, that I can’t share because some Powers Who Decide are hinky about sharing with the public.  Hopefully, that is short-term and election-related.

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Below, I excerpted one paragraph from a few of the projects to give you a flavor.  These projects have to do with wildfire resilience in one form or another, and there are others that deal with watershed restoration, check them out! I particularly like the one with free firewood for Tribal members from wildfire salvage.

You’ll remember that a few weeks ago, Cody Desautel (of the Intertribal Timber Council) testified at the House Natural Resources Committee, including difficulties carrying out joint projects with the Forest Service due to litigation.   I wonder whether folks have thought about some kind of litigation carve-out for joint projects with Tribes, who conceivably have some treaty rights (different for different now-Forests).

Johnnie Springs Tribal Forest Protection Act Project – Cow Creek Band of Umpqua Tribe of Indians

The partnership combines resources from the Cow Creek Umpqua Tribe and Umpqua National Forest to co-implement thinning and fuels reduction treatments on the Tiller Ranger District through a three-phase partnership called the Johnnie Springs Project. Phase one started in October of 2023 and authorizes the Tribe to implement fuels reduction treatments along 17 miles (618 acres) of road in areas where the Forest has already completed environmental analysis. Phase two has identified additional areas within the Johnnie Spring project area that are adjacent to Tribal trust lands and in need of active management. Phase two proposed treatments includes an additional 12 miles (436 acres) of roadside fuels treatments and 570 acres of small diameter tree thinning units. Phase three is proposed as a planning phase, in need of additional NEPA analysis to move forward. Currently, Forest and Tribal managers are looking at opportunities to analyze new acres available for commercial thinning and opportunities for additional roadside thinning work within the current Johnnie Springs planning area. Additionally, in phase three, the Umpqua National Forest and Cow Creek Umpqua Tribe will evaluate other portions of the Tiller Ranger District for future co-stewardship opportunities. All phases include a prescribed fire element, ensuring opportunities to reintroduce healthy fire back to the landscape is considered when the right environmental conditions are in place.

Upper South Fork Tieton River (SFT) -Yakama Nation

The Yakama Nation requested to enter into agreement under the Tribal Forest Protection Act to coordinate and collaborate with the United States Forest Service on the South Fork Tieton Project on Yakama Nation Ceded Lands. The project was funded with the Central Washington Initiative as part of the Bipartisan Infrastructure Bill with the goal to complete planning and environmental analysis on 40,000 acres with a 189,500 acre fire shed. This project will focus on wildfire risk reduction.

The Sxwuytn-Kaniksu Connections (Trail) Project/ LeClerc Rd Reroute-Mill Creek Restoration Project

The Trail Project is located in Pend Oreille County in northeastern Washington State, four miles north of Newport. Restoration work will include a suite of tools, over the next 10-15 years, to accomplish the goals of the project. For example, commercial and non-commercial thinning of trees and prescribed fire will increase diversity and resilience to forest stands, decrease potential for insect and disease, maintain more characteristic open tree stands to increase tree vigor by reducing competition for resources, provide economic opportunity from the surrounding community, while also reducing fuels and limiting the severity of wildfires.  Open tree stands will improve forest health and increase forage for wildlife by allowing sunlight to reach the forest floor.

Double Creek Fire Recovery Project –Nez Perce Tribe

Hopefully someone out there has more information on this one from Law 360. I can’t access it.

Law360 (March 27, 2024, 7:09 PM EDT) — The Navajo Nation claims the U.S. Department of the Interior unlawfully withheld more than a million dollars in funding for its contracted forestry management program, telling a D.C. federal judge the department should be forced to provide the money and accept the funding ..

That’s all we get.

If we look at the past, we have this..from Holland and Knight in 2020:

Native American Law Partner Philip Baker-Shenk is representing the Navajo Nation in a lawsuit against the U.S. Department of the Interior (DOI) claiming the department is illegally holding back money for the tribe’s forestry program that the government owes under a self-determination contract. In its complaint, the Navajo Nation said that the DOI’s Bureau of Indian Affairs violated the Indian Self-Determination and Education Assistance Act by failing to deliver over $700,000 under a funding agreement for the tribe’s forestry management program, even though a representative for DOI Secretary David Bernhardt had recommended that the tribe’s proposal be approved.

Now if the DOI Sec at the time recommended it.. and the government isn’t sending it.. there’s an interesting story of some kind out there.  Does anyone have access or further info? If so, please share in the comments.

Join us for this spring’s speaker series held every Thursday from January 18 to April 25. The sessions will also be recorded.  Here’s a link with all the details.

Tribes and First Nations have been forest stewards since time immemorial on the land that is currently called North America. In the face of climate change, tribes and First Nations continue to work with institutions, NGOs, and federal and state agencies to support Indigenous sovereignty and resilient forested landscapes. This webinar will focus on the current state of tribal forest management and Indigenous stewardship with a series of speakers from different tribes, universities, non-profits, and agencies.

I’d just add that peoples who have been around North America since glaciation may know quite a bit about responding to climate changes..

The speaker series is co-developed and co-hosted by The Forest School at the Yale School of the Environment, the Yale Center for Environmental Justice, and Salish Kootenai College.

The series is facilitated by Gerald Torres (Yale School of the Environment), Adrian Leighton (Salish Kootenai College), and Marlyse Duguid (Yale School of the Environment).

We read in news stories about co-stewardship (I think everyone at Interior and USDA is working on this) and co-management.

Co-stewardship is explained in this Joint Secretarial Order. It seems to be about sharing information and knowledge and working on stuff together.

The definition of co-management seems hard to get at, possibly because different reporters use the term differently. This seems relatively clear from  this High Country News piece:

The distinction between co-management and co-stewardship — terms the federal government uses for agreements to collaborate on land management with tribal nations — is subtle but important. “Co-stewardship” covers a broad range of collaborative activities like forest-thinning work in Alaska’s Tongass National Forest in partnership with the Hoonah Indian Association, where Indigenous knowledge can be included in federal management. But “co-management” is more narrowly defined. In those instances, tribal and federal governments share the power of legal authority in decision-making of a place or a species. This is the case with Kasha-Katuwe Tent Rocks National Monument in New Mexico, which is co-managed by the Pueblo de Cochiti and the Bureau of Land Management, and with the salmon fisheries in the Pacific Northwest.

In this story, also in HCN, they talk about Bears’ Ears and the new Arizona Monument as being co-managed:

The designation creates a commission for tribal nations with ancestral ties to the area — in this case 13 distinct tribal nations — to manage the lands within the monument alongside the federal government, similar to the commission established for Bears Ears.

As we previously discussed on TSW, though, establishing an advisory commission does not necessarily lead to sharing decision-making authority with the group.  The Black Hills National Forest, for example, has a FACA committee but the committee does not “co-manage.” The current Admin always holds all the legal cards in any decision and in any litigation, to defend or not or settle.

There is a fascinating legal paper by Monte Mills worth taking a look at if you are interested. The below is from pages 145 and 146.

As for delegation of authority, Obama’s Proclamation differs from the proposal submitted to the him by the Bears Ears Inter-Tribal Coalition.
The Coalition carefully dissected the issue of what constitutes a lawful delegation of authority to tribes and premised its proposal on the basis that a delegation of authority is permissible insofar as it is not total, and remains subject to the final decision-making authority of the Secretaries of Agriculture and Interior.417 Instead of delegating complete authority, “the Tribes and agency officials will be working together as equals to make joint decisions.”418
Though a modification of the Coalition’s proposal, Obama’s Proclamation establishes a substantive framework for collaborative
management of the Monument:
The Secretaries shall meaningfully engage the Commission or, should the Commission no longer exist, the tribal governments through some other entity composed of elected tribal government officers (comparable entity), in the development of the management plan and to inform subsequent management of the monument. To that end, in developing or revising the management plan, the Secretaries shall carefully and fully consider integrating the traditional and historical knowledge and special expertise of the Commission or comparable entity. If the Secretaries decide not to incorporate specific recommendations submitted to them in writing by the Commission or comparable entity, they will provide the Commission or comparable entity with a written explanation of their reasoning.419

This sounds a bit like a “response to comments”, but OK. Bottom line- does co-management mean that feds and Tribes are peers in decision-making- any decision needs to be agreed upon by both parties?  Or are Tribes “the most important stakeholders to listen to.” I’m sure these would be functions of specific legal authorities.  Either way, is there a reason not to co-manage everything if the legal aspects could be worked out?

Finally, from the second HCN article:

While many see co-management as a step toward land return, environmental historian and ethnobotanist Rosalyn LaPier, who is an enrolled member of the Blackfeet Tribe, and Métis, has pushed back against that idea. In an interview with High Country News last week, LaPier said that the federal government should be ready to return public land to tribes who want it now, without requiring co-management as a first step. “The federal government doesn’t want to let go of their say over public lands and allow Indigenous people to take leadership. And we’re fully prepared to take leadership,” LaPier said. Pointing to intensifying wildfires in the Western U.S., which are due in part to a century of fire suppression, she added, “Why would Native nations want to co-manage with the United States, when the United States government has shown over and over again how they mismanaged public lands?”

I wonder if there’s a list of the Tribes who want land return ASAP.