Tribes and Tribal Management

Bears Ears co-management is said to be new and unique.  Inquiring minds wonder… shouldn’t Tribal views always be taken into account? Are there legal differences in various places that matter? What is different and better about the Bears Ears approach? How does it compare to other Co-Management efforts?

As I read the cooperative agreement, I wondered..

It sounds to me like there’s much “coordinate” and “provide opportunities for input” in this document.  It sounds perhaps like a Forest FACA committee. There’s even a “meaningful seat at the table before decisions are made.” As I read these, FLPMA also says something about coordinating with local governments. The meaning of that seems to be highly contested, will this work any better?  And who has a “meaningless” seat at the table?

On the face, the Agreement it sounds like something both the BLM and the FS should always do with Tribes with historic ties to that piece of federal land. Isn’t it?

Would co-management actually mean decision-making authority rests in both entities, and have a conflict resolution mechanism if the two groups disagree? Does co-management give veto power over projects and activities the Tribes don’t want, or similarly, if the Tribes want a project or activity, and the Agencies don’t, what happens?  Or do the legal authorities not really change and the Feds just have to take the views of the Tribes into account in some way.

Tribes have unique and special knowledge based on their history and experience with the landscapes, places, plants and animals. Other local people whose families have lived in an area, in some places for centuries (e.g. descendants of Spanish colonists in the SW), also have local knowledge. To what extent should incorporation of that local information take place in a similar way?

Will Tribal co-management ultimately make it less likely that federal lands issues will be dealt with at the national level by national interest groups? That in some sense, non-Native locals were seen to be by some national groups as  obstacles to correct management, but that doesn’t hold for Native locals? Anyway, check out the agreement for yourself and see what you think.

Here’s the text of the Bears Ears Co-Management Cooperative Agreement

C. In order to implement the direction in Proclamation 10285 and Proclamation 9558, the BLM and USFS agree to:

I. Ensure that Federal policies reflect the needs of Tribal Nations and that Tribal leaders have a meaningful seat at the table before decisions are made that impact their communities by centering Indigenous voices, including increasing the recognition of the value of traditional Indigenous knowledge and empowering Tribal Nations to make decisions for their cultural, natural, and spiritual values.
2. Honor applicable Executive Orders, Secretarial Orders, and Memorandums of Understanding including, but not limited to, Executive Order 13175 ofNovember 6, 2000, Consultation and Coordination With Indian Tribal Governments, Secretarial Order No. 3403: DOI and USDA Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship ofFederal Lands and Waters, and the November 16, 2021 Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Indigenous Sacred Sites.
3. Coordinate and consult with the Commission throughout land use planning and subsequent implementation-level decision-making processes concerning Bears Ears, including preparation of a monument management plan and a travel management plan.
4. Identify opportunities for development of initiatives to cooperatively conduct land management programs concerning Bears Ears.
5. Seek specific opportunities to involve the Commission in public land management activities concerning Bears Ears.
6. Coordinate, organize, and assure appropriate government professional and management involvement in programs within the scope of this Cooperative Agreement.
7. Ensure that Tribal knowledge and local expertise is reflected in agency decision making processes for Bears Ears. Develop and share information and data with the Commission, to the extent possible, to facilitate understanding of issues and sites, such as providing pictures and other information to Tribal Elders who cannot travel, and facilitate Tribal Nations’ work and engagement on the management of the monument.
8. Provide opportunities for input on implementation of interim guidance issued jointly or individually by the BLM and USFS, including the BLM’s interim monument management guidance issued on December 16, 2021, which directs the BLM to (a) inventory monument objects and values, (b) review existing discretionary uses and activities within the monument to detennine whether their impacts are consistent with the protection of the monument objects and values, and (c) update existing monitoring plans to ensure protection of monument objects and values.
9. Provide opportunities for input to the USFS review of existing discretionary uses and activities within the monument to deternine whether their impacts are consistent with the protection of the monument objects and values.
10. Provide opportunities to review and provide input on BLM and USFS policy guidance for the Bears Ears prior to issuance.

“Alternative dispute resolution, as they call it now, for us that’s not alternative,” Nez added. “That’s our original way of resolving issues in our communities. For Navajos, we call it the peacemaking system, where everybody comes in and has a seat at the table to talk things out.”

Co-management plans on federal lands could ignite thorny jurisdictional disputes among agencies. As an example, tribal projects involving forestland would have to include the Forest Service, which is part of the Department of Agriculture.

Even without such disputes, progress can come slowly, as Jarvis discovered in 2016 when the park service modified a regulation to allow tribal members to gather plants at national parks, but only for “traditional purposes.”

When he announced the change, Jarvis said it would support tribal sovereignty and the “unique cultural traditions of American Indians,” with plants used for everything from basketry to traditional medicines. To be eligible, a tribe must have “a traditional association” to certain lands within the National Park System. Any commercial uses are prohibited.

While the park service consulted with more than 120 tribes before making the change, Jarvis said NPS officials still encountered plenty of opposition from outside groups like the advocacy organization Public Employees for Environmental Responsibility (PEER).

“It took nearly 15 years to get that done, in part because of opposition by organizations such as PEER,” Jarvis said.

Yet as another sign of the changed political winds, even PEER has changed its stance on co-management.

In 2017, PEER warned that co-management with tribes could conflict with the park service’s desire to protect wildlife, protected species and forests.

At the time, Jeff Ruch, who then served as PEER’s executive director and who now heads the group’s Pacific field office, headquartered in California, said the concern was that “two sovereigns under one roof is a house divided.”

“If it is true co-management, then any disagreement could lead to utter impasse,” Ruch said.

But Tim Whitehouse, PEER’s executive director since 2019, offered a much different take on the issue, saying the organization welcomes “the Biden administration’s efforts to better engage culturally diverse communities in shaping the direction of conservation and public lands policies.”

“The co-management of parks and public lands with tribes must be part of that discussion, as well as guaranteeing tribes access to their cultural lands,” he said.

Asked to explain his organization’s change of heart, Whitehouse said it was the result of “a much-needed evolution in thinking on these issues.”

I wonder whether commercial uses by Tribes would work on BLM and FS?

As longtime friends, Nez said that he and Haaland “rely on each other’s counsel for a lot of things” and that she now will get a chance to help fix “the wrongs of the past” by advancing co-management plans. He said the idea is gaining in popularity as more Americans — tribal members and non-tribal members alike — seek to be caretakers of the land.

“Look at what’s happening in California, the over-forestation,” he said. “If you would allow people to harvest firewood, that will help in cleaning up, and that way large-scale fires don’t happen. You see, that’s the perspective that Native Americans can bring to the table.”

If allowed to hunt more on public lands, Nez said: “We’re not going to kill all the animals because we as Native Americans believe that you just take what you need at the time, for instance the winter.”

And Nez said that giving tribal members more leeway to collect roots, plants and herbs from more national park sites could also help lead to medical breakthroughs, if tribes are only given the chance.

“Maybe we even have the cure for COVID-19, who knows?” he said.

As for making all this work, Nez said there’s an easy answer: consensus.

“That’s where both sides have to agree on moving into the future,” he said.

“Alternative dispute resolution, as they call it now, for us that’s not alternative,” Nez added. “That’s our original way of resolving issues in our communities. For Navajos, we call it the peacemaking system, where everybody comes in and has a seat at the table to talk things out.”

In 2017, I posted this about former Interior Secretary Zinke asking for a legislative fix so Tribes could co-manage parts of Bears Ears. It should also appeal to the Biden Administration. I ran across this report on different approaches to Tribal co-management by PERC. When I read it, I wondered, “could this approach apply more broadly- to more federal lands (possibly everywhere, after some pilot approaches are tested?).

Opportunities

The original presidential proclamation creating the Bears Ears National Monument did not establish a formal tribal co-management requirement. There are several ways Congress and the Interior Department could now implement formal co-management. Two potential solutions, elements of which can be combined, are:

1) Create a trust to manage cultural and natural resources.
Such a trust would be a legal arrangement in which a board of trustees would manage the natural and cultural resources of Bears Ears while maintaining federal land ownership. The Interior Department and Congress would establish and enforce policies and regulations by which the trust is administered to ensure standards of performance. A formal written agreement would specify parameters for resource protection and use, such as the trust’s ability to limit visitation to fragile cultural and archaeological sites. The trust would then determine precisely how to meet these parameters.

The trust board could be composed of Native Americans and representatives of nearby communities to ensure tribal co-management and local input. To protect cultural areas and provide recreational opportunities, the trust could be structured so that some trustees have primary responsibility for tribal co-management of cultural resources while other trustees have primary responsibility for recreation or conservation.

A trust for Bears Ears could have a number of provisions, including:

*Give trustees autonomy to make decisions about how to manage and use resources while holding them accountable to meet federally determined goals for the trust, such as the types of resources to be protected and the need for financial self-sufficiency.
*Allow the trust to set, charge, and retain 100 percent of fees for access and resource use and to invest those fees as it sees it in conserving the monument.
*Require the trust to become financially self-sufficient after a predetermined period of time, perhaps 3 to 5 years, so the trust does not become dependent on Congress for funding and is able to make trade-offs between competing resource uses. Sources of finances can be a combination of fees generated by visitors, resource users, and charitable contributions.

2) Grant Native Americans legally binding or even exclusive rights to manage the region’s antiquities on federal land.

Currently, four national park units, including two national monuments, are jointly managed by the federal government and tribal partners and could serve as models.

Substantive Native American co-management could include a number of provisions such as:

*Allow Native Americans to control access and retain 100 percent of income generated from visitors. This would ensure antiquities sites are not overrun by tourists and would also provide resources to help protect sites from vandalism, theft, and inadvertent damage.
*Create a formal management structure for Native Americans, such as a trust, so that they have a substantive management role rather than the current advisory role.
* Formalize rights to historical Native American uses of the area, including grazing livestock, gathering wood for heating homes, gathering food and hunting game, harvesting plants for medicinal and ceremonial purposes, and performing religious ceremonies.
* Establish a fair and transparent process to sort out competing Native American claims to co-manage antiquities sites on federal land.

I don’t know if you have been following the 1619 Project. It is a major initiative from The New York Times observing the 400th anniversary of the beginning of American slavery. It aims to “reframe the country’s history, understanding 1619 as our true founding, and placing the consequences of slavery and the contributions of black Americans at the very center of the story we tell ourselves about who we are.” The terms “original sin” have been used. But to my mind, there is one more fundamental underlying sin that pre-dates slavery. If one has to be “original,” this one would be it. That is the theft of land and mistreatment of Native peoples.

What can we do about this history? One idea is to return some current public lands, usually Forest Service or BLM, to the original owners. In my view, this idea is compelling from a justice perspective. Certainly there are a host of details that could be puzzled over, debated, and negotiated. Some might include ideas about 1) how much, 2) where, 3) who decides, 4) what commitments to current uses and access, 5) should lands be selected based on treaty status or other criteria (sacred sites or ?), 6) what kind of a transition period. In the same way that companies and states can commit to zero carbon by 2050, which will require a major social and technological transformation with environmental goals, could we perhaps set the same target for repatriation of public lands for justice goals? Say “Repatriate by (20)38”? There is an argument to be made that under our current non-Native management, the private sector spends much money on debating, communicating and litigating with others about public lands management, and those same funds could potentially instead be spent on purchases, easement and incentives on private land. Each group could then determine exactly which uses or protections it wanted. Perhaps less fighting over conservation, and more conservation.

Here’s an article in High Country News from August of this year It tells the story of some Oregon Tribes’ efforts to get public land returned (including trying to buy the Elliott State Forest).

Conservation groups, critical of Lone Creek’s forestry practices, staunchly opposed its involvement and accused the partnership of wanting to privatize the forest. Conservationists in turn were called out for their failure to work with tribal nations: “Your organization has mobilized opposition to the sale, with little to no engagement with the Tribes who would have, once again, become the stewards of this land,” a consortium of racial justice groups, including NAACP Portland, wrote in an open letter to the Sierra Club, Cascadia Wildlands and four other conservation organizations. “We also note the many ways in which environmental groups in Oregon remain predominantly white, and work from a place of white privilege; this situation is a very clear example of the lack of racial justice analysis applied to what is a complicated situation.” Then-Sierra Club Oregon Chapter Director Erica Stock responded, “As an environmental conservation community, we must do more to proactively reach out to Tribal Nations and rebuild trust.”

Ultimately, the sale was dropped by the state after intense public outcry, but tensions between conservation groups and tribes remain.

“The conservation movement began as a way for settlers to justify the seizure of Indigenous lands under the pretext that Native peoples didn’t know how to manage them,” says Shawn Fleek, Northern Arapaho, who is director of narrative strategy for OPAL Environmental Justice Oregon. “If modern conservation groups don’t begin their analysis in this history and struggle to address these harms, it becomes more likely they will repeat them.”

Meanwhile Andy Kerr, who worked for two decades at Oregon Natural Resource Council (now Oregon Wild), still objects to public lands becoming tribal lands. “The Democrats who supported this legislation came down on the side of Native Americans and, in this case, against nature,” Kerr wrote in a December 2018 post on his website.

While “Native Americans” should get some form of compensation, Kerr argued that “such compensation should not come at the cost of losing federal public lands of benefit to all Americans.” Both Runte and Kerr see money as an adequate substitute despite treaty law, since “in the society that won out in that struggle for a continent, the most common way to right wrongs is by money being transferred to the aggrieved parties from the parties that unjustly benefited.” Kerr continues: “The currency of compensation by the United States to Native American tribes ought to be the currency of dollars, not that of the irreplaceable and precious public lands that belong to all of us.”

But it’s not a matter of money, says Cris Stainbrook, Oglala Lakota, of the Indian Land Tenure Foundation. “It’s ironic they don’t recognize they’ve had the public benefit of lands for on the order of 165 years of using someone’s land that was guaranteed to them, and used those lands to their own benefit. It’s about time, after 165 years, that they live up to the treaty.”

For folks interested in Alaska, here is an HCN WaPo op-ed critique on the Natural Resources Management Act of 2019 with the tagline “A nation of laws cannot exist on stolen land.”