Tribes and Tribal Management

PERC’s Report on Tribal Co-Management for Bears Ears

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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.

It’s National Forest Week – so let’s think about forest planning for tribal areas

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But we all knew that, right?  Here’s the National Forest Foundation link.

But here’s the rest of the story:

It’s National Forest Week, and members of the Crow Tribe are celebrating recognition of a special place in Montana.

In the U.S. Forest Service’s final draft of its Custer Gallatin National Forest plan released last week, the agency recognized the cultural and spiritual significance of the Crazy Mountains, designating it an “Area of Tribal Interest.”

The Custer Gallatin plan recognizes only the southern part of the Crazies. The Forest Service did not include the cultural significance of the northern part in its Helena-Lewis and Clark National Forest plan from May.

Ideally, Doyle (a Crow tribal member) said, the tribe would like to see both sections recognized, but he noted that the region in the Custer Gallatin National Forest is most significant.

Why?  If there was one thing that everyone involved in developing planning regulations agreed on, it was that management direction should not change just because of an administrative boundary with a different staff member in charge.  And now this.  Two adjacent forest plan revisions, on roughly the same schedule, and different ideas about what?  Maybe there’s some legitimate resource reasons, but here’s the extent of the plan components for this area (and they don’t require much):

Desired Conditions (BC-DC-TRIBAL)

01 The Crazy Mountains embody a tribal cultural landscape significant to ongoing traditional cultural practices of the Crow Tribe.

02 Research, education, and interpretation of the Crazy Mountain tribal cultural landscape provides public benefits and enhances the understanding and appreciation of Crazy Mountain’s natural environment, precontact, contact, and Crow traditional cultural values.

Goals (BC-GO-TRIBAL)

01 The Custer Gallatin National Forest protects and honors Crow treaty obligations, sacred land and traditional use in the Crazy Mountains through continued consultation with the Crow Tribe.

This is not the only “area of tribal interest” on the Custer-Gallatin.  The Helena-Lewis and Clark plan has plan components for “areas of tribal importance,” but does not identify them (other than the Badger-Two Medicine area).  The plan dedicates one descriptive sentence to the tribal history in the Crazy Mountains.  So, again, how does the Forest Service explain the line they have drawn here?

(Related to the consistency idea, there was a lot of debate about whether plan decisions should be made by forest supervisors or regional foresters.  The Forest Service went with the former (I was told so the Chief wouldn’t be involved in objections), and this is the kind of problem they created.)

Multiagency Effort Spawns Giant Forest, Recreation Project in Pend Oreille County

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From the Spokesman-Review here via the Forestry Source. Note: “This is the first time that a tribe is doing environmental analysis for the forest service using state funds.”

Twenty years ago, the proposal being presented at public meetings in January for forest restoration and recreation projects on 90,700 acres in Pend Oreille County would only have been a pipe dream.

That was at the height of the “timber wars,” pitting pro-logging interests against environmentalists and bringing logging to a halt.

The project area north of Newport and east of the Pend Oreille River is a patchwork of tribal, state, federal and private lands. This is the first time that a tribe is doing environmental analysis for the forest service using state funds. When complete, it should vastly improve forest and watershed health for all land owners with a bonus of increased recreation opportunities.

Project area land owners are: Colville National Forest, 41,600 acres; Kalispel Tribe of Indians, 3,700 acres; Washington Department of Natural Resources (DNR), 8,200 acres; private, 37,000 acres; and Washington Department of Fish and Wildlife, 200 acres.

All the actual work in the project will be done on forest service land, but the partners hope others will follow, especially private timber land owners. The DNR and Kalispel Tribe have been working on forest health and watershed improvements on their land already.

This project is the culmination of years of increasing forest fire danger caused by poor forest management and a new spirit of collaboration between forest managers and some environmentalists. It is also a milestone for this new-age management, because it is the first project in the nation with so many partners working on this large of an area.

But it isn’t without challenges.

“Get past the feel-good part and reality is, it is hard to get agreements,” said Gloria Flora, project coordinator for the Sxwuytn-Kaniksu Connections Trail Project. “We proceed with caution.”

The Kalispel Tribe refers to the project as Sxwuytn (s-who-ee-tin), a Kalispel Salish word that roughly translates to connection or trail. This planning effort is also referred to as Kaniksu Connections to acknowledge the building and strengthening of connections and relationships across landscapes and boundaries.

Flora said that everyone won’t agree with what the group proposes and challenges in court are possible. But she said she feels that “old-school protests” need to change.

She points to the 9th Circuit Court of Appeals statements last year in the ruling in favor of the Colville National Forest and its large A to Z forest restoration project in Stevens County. The court said the environmentalists objecting had a chance to be at the table in the planning process and should have been involved but weren’t.

Flora has been at the table for forest planning projects for many years. She has worked 23 years in forest management around the country with the past seven in this region.

She founded and directs Sustainable Obtainable Solutions, a nonprofit organization that works to ensure the sustainability of public lands. Her former forest service career included serving as forest supervisor on two national forests.

Given the scale of forest health problems in Eastern Washington, the DNR, federal agencies and other partners agree that to meaningfully reduce wildfire and forest health risks, it will take coordinated actions across land ownership boundaries at a watershed scale. The forest land owners can’t just work their patches independently or not at all.

Australians and US Wildfire, Similarities and Differences: I. Knowledge of Traditional Burning Practices

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Hot fires such as this over large stretches of country can have detrimental effects on all sections of the forest depleting the seed stock and promoting germination that is too intense, destroying ground cover, and destroying canopy and the fauna that is associated with it.(from the Kelly paper)
Photo – Jiri Lochman

As the world’s attention has turned to the tragedies of the recent and ongoing Australian bushfires, it has been an opportunity for some of us to learn about bushfires, their history, and how Australians have handled them and perhaps compare their history and solutions to our own.

One theme that has been reoccurring on The Smokey Wire recently is that of looking at the written and oral histories of Native land use practices and land uses by non-Native settlers in the 19th and early 20th century. For me, it’s not about replicating the past, so much as understanding how and why Native peoples managed it and how the forests we see today were established.

I recently ran across this interesting piece by a Nyungar man named Glen Kelly in Landscope, a publication of Western Australia Department of Biodiversity, Landscape Conservation and Attractions. I couldn’t find the year it was published. In the paper is this quote from 1830:

While travelling from the Albany District to Perth in November 1830, John Lort Stokes wrote that:

“On our way we met a party of natives engaged in burning the bush, which they do in sections each year. The dexterity with which they manage so proverbially a dangerous agent as fire is indeed astonishing. Those to whom this duty is especially entrusted, and who guide or stop the running flames, are armed with large green boughs, with which, if it moves in a wrong direction, they beat it out … I can conceive no finer subject for a picture than a party of these swarthy beings engaged in kindling, moderating and directing the destructive element, which under their care seems almost to change its nature, acquiring as it were, complete docility, instead of the ungovernable fury we are accustomed to ascribe to it. Dashing through the thick underwood, amidst volumes of smoke-their dark active limbs and excited features burnished by the fierce glow of the fire-they present a spectacle which rarely falls to our lot to behold, and of which it is impossible to convey any adequate idea with words.”

Through the fog of racial bias, you can detect the author’s awe at the native peoples’ fire and land management skills.

But changes in land management have also occurred post-settlement, in fact, somewhat recently.

“that upon the cessation of Nyungar land management practices, dramatic changes occur to the land. Up until 20 or 30 years ago, Nyungar land management practices, which involved frequent cool fires over much of the country, were maintained to a large extent by the cattlemen of the south coast. They used the skills shared with them at the time of settlement, when a major part of the rural work force was Nyungar people. In the last few decades, however, we have witnessed some parts of our coastal land move from productive and vital areas to what we consider sick (mindytch) or dead country (noinch boodja). ”

Again, I don’t know the date of this piece, but Kelly was not finger pointing, but simply calling for:

We believe that the experimental non-use of fire and inappropriate use of fire that has been applied on the south­west coastal lands for the past few decades has been detrimental to the land of our origin. The fault for this does not lie at the feet of any one group or agency, but is a collective responsibility that needs to be recognised and rectified, quickly.

The whole paper is interesting as it places fire in the Nyungar cultural context.

If I had to guess, I would think that in the US, traditional burning knowledge and practices have been passed down in some places and not in others, due to the uprooting of Native people from their land and other factors. It would also be interesting to scan documents and journals from the 17 and 1800s for mention of then-current burning knowledge and practices. I wonder whether anyone has done that?

Happy Indigenous Peoples’ Day! Does Environmental Justice Include Federal Land Transfer?

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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.”