Interior and Agriculture Departments Will Fulfill Trust Responsibility to Indian Tribes in Managing Federal Lands and Waters

 

In November, Secretaries of the Departments of Agriculture and Interior released a joint order to ensure that management of resources, including National Forests, Parks and Wildlife Refuges, and Bureau of Land Management lands, protects treaty, religious, subsistence and cultural interests of Native American Tribes. The wide-ranging order mandates Tribal collaboration in management priorities and activities for millions of acres of land, waters and their resources, including wildlife.

The order mandates “collaboration in co-stewardship” of Federal lands and resources, including wildlife and wildlife habitat. Notably, “co-stewardship” is a nebulous term. However, the order recognizes that activities must be “consistent with applicable law”. Laws include Congressionally mandated mission statements for agencies and for individual federal land holdings. Proceeding with some caution, the White House has ordered a legal review of land, water and wildlife treaty responsibilities, and a guidance document on the co-use of indigenous traditional ecological knowledge with science. These are to be completed within one year.

These directives could shape any action on the Coalition’s goal to restore public-trust, wild bison on the Charles M. Russell National Wildlife Refuge (CMR), which is already in an uncertain legal-political quandary. Questions that must be addressed include:

Are states’ rights subservient to federal Tribal treaty obligations that are older than statehood? States claim primary authority to manage most of their wildlife, especially hunting, even on federal land. While federal agencies have superior rights on federal lands, the Fish & Wildlife Service (FWS) almost always yields to the state assertion. Might FWS use treaty obligations to justify restoring bison on the CMR and eventually to conduct federal hunting seasons, both without the state’s blessing?

What would co-stewardship of a CMR wild bison herd look like? How will Tribes be represented and how will the rest of the general American public be represented. What, if any, priorities will be given to Tribal proposals?

To what degree can Tribal aspirations for bison be fulfilled while prioritizing the general American public and maintaining the genetic and ecological integrities of wild bison, as required in applicable law?

To what degree, must treaty, religious, subsistence and cultural interests of Tribes be fulfilled by CMR bison? Are these interests more properly fulfilled on multiple-use lands than on Refuge lands congressionally dedicated for natural ecosystems and wildlife?