Biden Admin Promotes Tribal Consultation and the Use of Indigenous Traditional Ecological Knowledge

There’s an excellent article on EnergyWire on Biden Administration’s policies to increase consultation and collaboration with Tribes.

In the first Tribal Nations Summit since 2016, President Biden this month committed to, among other things, pursue more collaborative public lands management strategies with tribes and incorporate traditional ecological knowledge into federal agencies’ scientific analysis of projects.

“We’re going to make some substantial changes in Indian Country,” Biden said during the virtual event.

The same day, the government released a memorandum of understanding signed by 17 federal agencies agreeing to increase consultation and collaboration, in recognition of existing treaty obligations between the United States and tribal nations.

The announcements drew praise from Indian and environmental law experts, who saw the change as an important step for the Biden administration in improving relations between sovereign tribes and the United States.

The agreement, signed by agencies such as EPA and the Interior and Agriculture departments, is not legally binding, so it cannot by itself serve as the basis of a legal challenge to federal approval of energy projects on treaty lands.

But the agreement could help tribes hold the federal government legally accountable to its commitments to treat tribes as an equal partner in energy development on public lands.

The Biden administration’s pronouncements “may be relevant if there is litigation down the road, even if the tribe wouldn’t be able to just say, ‘You violated this [memorandum of understanding], and therefore, we’re suing you, and we win,'” said Monte Mills, co-director of the Margery Hunter Brown Indian Law Clinic at the University of Montana.

One way the agreement could bolster legal arguments is by allowing tribes to point to agency decisions that aren’t in accordance with the Biden administration’s consultation policies. Those arguments could be made in the context of lawsuits alleging violations of federal laws like the National Environmental Policy Act or the Administrative Procedure Act.

Besides consultation, there is also movement toward using Indigenous Traditional Ecological Knowledge to inform federal decision making.

The Biden team’s move for greater collaboration with tribes isn’t a new concept, but the effort to establish common standards across agencies is a change from previous administrations, experts said.

“To have a president acknowledge and pay homage to the idea that there are different forms of information and worldviews that are helpful, it’s exciting to see it in a public way,” said Karen Bradshaw, an environmental law professor at Arizona State University.

The White House Office of Science and Technology Policy and the White House Council on Environmental Quality released a memorandum this month that committed to incorporating “Indigenous Traditional Ecological Knowledge” into scientific and policy processes across the federal government.

The White House defined Indigenous knowledge as “a body of observations, oral and written knowledge, practices, and beliefs … applied to phenomena across biological, physical, cultural and spiritual systems.”

OSTP Director Eric Lander noted in a statement last week that Indigenous knowledge should “inform federal decision making.”

“This effort will give Federal agencies the tools they need to ensure Indigenous knowledge is appropriately considered and elevated,” Lander continued.

Schlenker-Goodrich of the Western Environmental Law Center said that increased consultation would complicate federal decisionmaking but would ultimately result in stronger agency actions.

“Bottom line, it’s the right move,” Schlenker-Goodrich said.

“It’ll accentuate complexity,” he continued, but the approach “also creates a path forward to better public lands management; respect for the first peoples of this continent; and a thriving, resilient future for all of us.”

It certainly make sense for the federal agencies to do consultation the same way. And it’s definitely the right thing to do IMHO. It’s also true that any efforts that complexify may create a tension with the Biden Admin desire for rapid renewable build-out on federal lands, as it has already done for mining for renewables.

18 thoughts on “Biden Admin Promotes Tribal Consultation and the Use of Indigenous Traditional Ecological Knowledge”

  1. I am curious what these tribal consultations actually involve and what difference they practically make.

    For example, we (the off-road advocacy group I’m involved in) are currently waiting for the final record of decision to be published in the Pike San Isabel National Forest travel management plan. The latest info we’ve gotten from the Pueblo office is that all route designation decisions have been made but the Forest is still waiting for the local Ute tribe to sign off on the consultation process. Apparently they are being pretty slow about it since we heard last month they were hoping to publish the decision by the end of the year, but last week I saw a newsletter from another group saying the final decision isn’t expected until April.

    Either way, I don’t really understand what this tribal consultation is supposed to accomplish. For all intents and purposes the travel plan is already done. So the FS goes to the tribe with a completed plan and just asks them if they like it or not? If they don’t like it, is that actually going to change anything?

    I also have a hard time imagining they really even have much to contribute given that the only Ute reservation in Colorado is at the other end of the state from this forest. Maybe some tribal members who live closer to it would be familiar with it, but not many. So I struggle to see what the actual point of this process is and what it will practically accomplish other than slowing the whole process down.

    Another angle I’ve been thinking of lately is where does tribal involvement with setting federal land management policy run into problems with the establishment clause of the First Amendment? A lot talk lately has centered around how specific landscapes are sacred to various Indian tribes and therefore need to be managed in certain ways. Once we start making land management decisions based on the beliefs of native American religions, at what point does that cross the line into religious establishment in violation of the First Amendment?

    • Patrick, I don’t know for sure but maybe someone else knows about this? My understanding is that consultation has a “requirement” aspect and a “good judgment” aspect. It would make sense that, for example, at the beginning of a process, Tribes would be contacted and asked what they cared about given the specific area and context of the decision.

      I think what is required is the Tribes signing on the dotted line. In fact, there were some students from Colorado College that did a study a few years ago about improving FS consultation practices and as I recall they came up with the Rio Grande National Forest doing the best job.

      Finally, I’ve been reading some history written by settlers and explorers. According to Farnham in 1839, then Bayou Salado (current South Park) “was a place where bison came up from the “arid plains of the Arkansas and the Platte; and hither the Utes, Cheyenne and Arapaho, Blackfeet, Crow and Sioux of the north, who have for ages met and hunted and fought and loved, and when their battles and hunts were interrupted by the chills and snows of November, they separated for their several winter resorts.” So if this is true (which I don’t know about anything historical) conceivably any of those Tribes could have interests in the area. I think much of this will have to be worked out as time goes on.

  2. The White House announcements on collaboration and “co-stewardship” in managing resources in “Indian Country” go far beyond energy resources, affecting mining, forestry, and wildlife, for 3. Some serious questions: What is “Indian Country” (Tribal-trust lands? Other lands, including private lands established within reservations? Lands outside reservations, but within the traditional use-areas of Tribes at the time of contact?) I urge caution in the application of Indigenous Traditional Ecological Knowledge (TEK) with modern science. Such knowledge has been used very selectively. Very few examples of such knowledge have been offered. (3 appropriate examples have provided information on wildlife, past and present, from Tribes currently living with subsistence economies, and where there is little or no other such information – the best available information, but hardly “science”.) TEK info is mostly qualitative. There is no measure of precision. It tends to be (often is?) congruent with religious beliefs. Some sources are considered cultural secrets. In contrast, much science is quantitative. It is both holistic and also considers the interactions of many parts, as well as co-variants. Science is “organizes skepticism” exposed globally for alternative views and different opinions. In short, the reliability of science far exceeds that of TEK. Putting these two sources of “knowledge” on equal pedestals is not warranted.

    • I completely agree. And given that National Forests are by definition not Indian reservations and there are no Indians living on them today, they seem to be going more off historical territories to determine what tribes to consult.

      This honestly makes me uncomfortable the same way the recent trend of land acknowledgments do. They presume that just because these people’s ancestors lived on these lands that tribal members today have a greater claim and deserve a more prominent voice in managing public lands than every other American. This ignores the present day reality that federal public lands are held in trust for all Americans and all American citizens have an equal interest in their management. When land managers single them out for preferential treatment, and especially when their religious beliefs are made the basis for land management decisions, it violates that equality and comes dangerously close to religious establishment.

    • James, your thinking about science is fairly idealistic compared to my experience. The “organization of skepticism” is only exposed for those who have funding to bring to bear and scientists are not always welcoming of alternative views…

      If we look at it quantitatively, I think neither TEK nor western science should be taken as 100 but neither should be 0 either. Their relative weight in any given decision would depend on a variety of things.. including relevance, to be weighted by the decision maker. And if federal lands were to be co-managed, it would be a joint decision between agencies/Administrations and Tribes.

      • Sharon: I am well aware of the limitations of science’s peer review process, having participated in it for many years. I’ve seen some very biased reviews accepted by editors. (I’ve been called a racist by one reviewer, who also produced the most inadequate review I have ever seen.) However, the information was still printed somewhere and available for further comments. In contrast, most (not all) of what I have seen re TEK has been vague. Some Tribes are being quite secretive about their various activities. I’ve tried to make contact with several Tribes and not received an answer. I’ve tried to obtain data on what Tribes have been receiving how many donated federal bison in recent years and have been told by FWS that such information required at least a FOIA. This status was requested by the Tribes. JAB

  3. In 2019 during an episode of The Keepers, a podcast produced by the Kitchen Sisters and NPR, the lead Archivist at the National Archives told listeners lawyers are combing the records for treaties with tribal nations none of which have been honored by the United States. Today, land repatriation is the part of the roadmap to reconciliation and that Republican welfare ranchers are angry about it means it’s the right thing to do.

    • I think it’s super ironic how people villified Trump’s Interior nominee because he once supported selling some public lands to state governments. Now the same people are proposing giving public lands away to Indian tribes wholesale.

      For the record, if correcting a historical injustice requires committing a new injustice, that’s the wrong thing to do. In this case, taking lands that benefit all Americans and giving them away to exclusively benefit a tiny fraction of our population is unjust and immoral.

      • Patrick: note that on many reservations, a large proportion of Tribal members have a minority of Native American ancestry. Many Tribes require 1/8, or 1/16 Native ancestry. So, if reparations are due because of historical injustices, how do some of these people qualify? — That said, we should address economic and social conditions ON reservations as best we can. It is the moral thing to do. Jim

    • I think many folks whose land would get repatriated might be angry about it. Why so much what sounds like Republican hate? or rancher hate?

  4. Since at least 1851 treaties that served as constitutions for American Indigenous were broken and are still being rewritten for political expediency. Despite the 2007 United Nations Declaration on the Rights of Indigenous Peoples American Indians are subject to at least four overlapping jurisdictions making tribes the most regulated people in the US without representatives serving in Congress.

    Today, attorneys are gathering evidence that the Trump Organization committed crimes against humanity in all of Indian Country not only by slow-walking resources to reservations during a pandemic but by undercounting Indigenous populations during the 2020 Census. Trump killed the White House Tribal Nations Summit because he loathes Native Americans.

  5. Despite the Fort Laramie Treaty of 1851 President Abraham Lincoln signed the Morrill Act in 1862 that distributed unceded lands in the public domain to raise funds for colleges. The Morrill Land-Grant Acts are directly linked to the Native American Genocide and Colorado State University is just one of those offenders.

    In 1989 attorney Mario Gonzalez filed the federal court case stopping payment of the Black Hills Claim award to the Oglala Lakota Nation. Gonzalez contends that the commission charged to make peace with tribes inserted language into the Fort Laramie Treaty signed in 1868 that Red Cloud had neither seen nor agreed to in negotiations. After the defeat of the 7th Cavalry at Greasy Grass in 1876 and the Great Sioux War Congress abrogated that treaty in 1877 and the Utes, Lakota, Arapaho, Cheyenne and others who migrated, lived and hunted all along the Front Range were driven into concentration camps.

    David Treuer was born of a Holocaust survivor and Ojibwe mother. He wrote in The Atlantic that he believes that most land held in America’s national parks should be remanded to Indigenous peoples but it’s my view that much of the land held in the Bureau of Land Management and the Forest Service should also be part of that trust.

      • Umm, Republicans have supported increasing controlled burns on public lands for decades, and have frequently pointed out that native tribes used fire to actively manage forests. It’s Democratic environmental groups that have long opposed controlled burning and are only finally coming around to accept it.
        Controlled burning really doesn’t have to be a partisan issue. On the other hand, those advocating giving away our public lands to Indian tribes for their exclusive use and locking everyone else out seem to be exclusively Democrats.

        • I don’t know, Patrick. Actually when I’ve occasionally been on conservative/libertarian webinars, they don’t seem to be against it. Here are my hypotheses (1) they don’t think it will happen (2) they’re not fans of government-run efforts in general (3) many Tribes use resources ((have coal mines, oil and gas, timber) so solutions can be site-specific and not get wrapped up in national politics and ideologies.

          At the Oil and Gas Leasing Public Forum, one of the elected representatives of Tribal groups mentioned how similar the needs of Tribes are with those of their neighbors.
          I’ll keep my eyes open for specific examples.

          • And of course, those who favor “privatizing” public lands (no Democrats I know of) would also be likely to support transfers to tribes that they could then try to manipulate with money (the way they would states or other local government transferees). (Remind me who is “advocating giving away our public lands to Indian tribes for their exclusive use and locking everyone else out.”)

  6. We’ll see if this breaks much new ground. The 2012 Planning Rule addresses both of these points. What each administration gets to determine is what a “government-to-government relationship” looks like. 36 CFR §219.4(a) …
    “(2) Consultation with federally recognized Indian Tribes and Alaska Native Corporations. The Department recognizes the Federal Government has certain trust responsibilities and a unique legal relationship with federally recognized Indian Tribes. The responsible official shall honor the government-to- government relationship between federally recognized Indian Tribes and the Federal Government. The responsible official shall provide to federally recognized Indian Tribes and Alaska Native Corporations the opportunity to undertake consultation consistent with Executive Order 13175 of November 6, 2000, and 25 U.S.C. 450 note.
    (3) Native knowledge, indigenous ecological knowledge, and land ethics. As part of tribal participation and consultation as set forth in paragraphs (a)(1)(v) and (a)(2) of this section, the responsible official shall request information about native knowledge, land ethics, cultural issues, and sacred and culturally significant sites.”
    (The Executive Order talks about what “consultation” means:


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