The U.S. Forest Service calls in the Experts
After a few centuries, Tribal nations co-manage (some of) their traditional lands
The Landback Movement was started with the statements of land acknowledgments about who is standing on stolen land, often repeated at the beginning of public meetings but with no action on those statements. The Landback Movement is an active response to acknowledgment. I wrote about the Landback Movement in July 17, 20221 and some of the success stories. Some land has been returned by private individuals, local or state governments. Sometimes this is done with a fee simple transfer in its purest form of giving, and sometimes state and local governments grant easements or other contractual agreements for access and use.
There is another approach to the Landback Movement that I would like to further share with you that has grown over the past three years. The practice of co-management of federal lands with the Native Nations who know them best has grown dramatically. A Joint Secretarial Order 3403 between the Department of Interior (home of the U.S. National Park Service) and the Department of Agriculture (home of the U.S. Forest Service) was signed November 2023 and its authority is the federal trust responsibility to Tribes as well as the existing Executive Orders, federal laws and judicial opinions. The Tribal Forests Protection Act signed in 2004,2 includes only Indian lands held in trust or owned through the Tribe or allotment, and is intended to involve Tribes in protecting their own forests from the fires, disease and destruction adjacent to them in the National Forests. This co-management initiative moves Tribes involvement to the national forests that are traditional lands of the Tribes, but now held as public lands and as national parks. The stated purpose of these co-management agreements is in section 1 of the directive:
“Section 1. Purpose. This Secretary’s Order is issued by the Secretary of Agriculture and the Secretary of the Interior (Secretaries) to ensure that the Department of Agriculture and the Department of the Interior (Departments) and their component Bureaus and Offices are managing Federal lands and waters in a manner that seeks to protect the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes including the Native Hawaiian Community; that such management is consistent with the nation-to-nation relationship between the United States and federally recognized Indian Tribes; and, that such management fulfills the United States’ unique trust obligation to federally recognized Indian Tribes and their citizens.”3
Just a few co-management agreements were signed in the last ten years. Then in 2022, 11 co-management agreements with 13 Tribes were finalized,4 with 60 co-management agreements with 45 Tribes in the process of completion. The Biden Administration has a goal of 120 such agreements. In Congressional testimony from USDA in December 2023, the Executive Branch testified that “In Fiscal Year (FY) 2023, the Forest Service and Tribes executed more than 120 agreements, representing a total investment of approximately $68 million, more than triple the $19.8 million invested in FY 2022.”
The myth of the pristine environment
The common myth of the pristine land that was discovered in 1492 and then put to virtuous use, should be addressed and put to rest at this point.
A story is related in Braiding Sweetgrass as Prof. Kimmerer (Potowatami) describes her doctoral student’s experiment that in western science, was hypothesized to result in diminished sweetgrass production. The experiment compared a plot of sweetgrass that was allowed to grow on its own to a plot of sweetgrass that was regularly picked by traditional Native gatherers. The student’s advisors expected the harvested plot would be the poorest quality; while the plot left alone would flourish. The opposite occurred. The plot that was harvested continued to come back stronger and thicker with its continued harvesting. Even when pulling the plants out by the roots it recovered and then some. So it is learning this harmony with the plants and humans that resulted in this traditional technique that ensured a continuing supply of sweetgrass.5
So, too, the Great Plains were burned in a traditional way to clear the way to grow grasses that would attract bison all in one place. The grasslands were carefully managed with periodic traditional burning to ensure their continued health.6
So the co-management of the national forests will be active, with traditional burns, hunting and gathering and ceremonial uses. Any perception that co-management involves leaving an untouched forest is just not an accurate one.
With all due regard to Gifford Pinchot (1865-1946) who is credited with developing a U.S. Forest Service that would not just preserve forests but would manage limited commercial logging in these forests,7 this was not an original idea. The active management of forests and its resources had been underway in this country “since time immemorial” ( many millennia) before colonization.
Co-management with the Experts
Agreements have changed over time between Tribes and the U.S. Forest Service and the National Parks Service. The earliest agreements were more heavy-handed and not a true co-management Memorandum of Understanding (MOU), but most were agreements to allow gathering on traditional lands. The first in the southeastern region of the U.S. was with the Eastern Band of Cherokee Indians for their traditional lands in the Smokey Mountains National Park.
The Eastern Band of Cherokee Indians (EBCI) gathering permit with the Smokey Mountains National Park (U.S. DOI) in March 2019 is one of the first in this national region with a Tribe. This is a gathering agreement which is maybe a subset of a co-management-type agreement but using the authority of the Tribal Forest Protection Act and its regulations.8 This agreement is fairly heavy-handed by the US Park Service in its monitoring of the gathering of Sochan, an early spring medicinal plant, which is the primary focus of the gathering agreement. The Tribe however is responsible for the training that is required by any member who engages in gathering which includes instructions on the part of the leaf to be removed, the methods of leaving the area undisturbed to how to cook and use Sochan. Here is a example of the detail of the gathering permit illustrated in this diagram of the proper and traditional harvesting method which involves removing only the “turkey foot” of the leaf.
An MOU with the Leech Lake Band of Ojibwe of the Ojibwe of Minnesota Chippewa Tribe and the USDA regarding the Chippewa National Forest in 2019. The requirement that the Tribe notify the USDA of any ordinances that are passed that affect the Forest, but not the reciprocating agreement from USDA, suggests an unbalanced MOU in favor of the interests of USDA, but it is at least the beginning of an agreement to cooperate with the Tribe.9
Several Alaskan Native Villages and Corporations (the organizational structure equivalent to Tribes in the continental U.S.) signed another early agreement in June 2020 that seeks a rulemaking to institutionalize consultation on co-management of traditional areas of the Tongass National Forest. The agreement asks “[T]o elevate the role of tribal governments and tribal entities as collaborative partners on U.S. Forest Service decision-making that affects traditional and subsistence use areas.”
The Karuk Tribe and the Klamath & Six Rivers National Forests co-management agreement is the product of an evolution of a consultation agreement signed in 1994, and was amended and revised in subsequent years at least a half dozen times. The purpose was to consult on the control of fires in the California forests which had been unsuccessfully managed by the U.S. Forest Service and U.S. National Parks. The Karuk Tribe has a long tradition of fire burning in order to preserve and protect the forests from exactly the kind of out of control fires that have been seen in California over the past decade.
These more recent agreements like this one signed in 2023 has made more significant progress in reaching a more authentic co-management relationship.
The Cow Creek Tribe has signed an MOU with the BLM for co-management of the Umqua National Forest in Oregon (I have been there and it is breath-takingly beautiful), the traditional lands of the Cow Creek Tribe. The BLM is seeking better collaboration and learning from the Tribe which has been successful in managing their own forests specifically with managing burning. The MOU is broad with a look toward authority to develop further project agreements but it includes a statement that is important to Tribes that is new language in these more recently drafted MOUs:
“Any activities conducted under this agreement by this Tribe under this MOU are done under the inherent sovereignty of the Tribe and its immunity as a sovereign.”10
The future
Co-management agreements that have been in place long enough for the one year report promised in the Joint Secretarial Report, highlight some obstacles to these agreements such as the requirement for an Environmental Impact Statement under the National Environmental Policy Act, that can take years to complete. A categorial exception is being considered to streamline these agreements.
Because there is no legislation to formally institutionalize this co-management initiative, funding has had to come from Congressionally authorized programs with at least partially sharing goals.11 This is a typical way that Administrations fund their own policy initiatives. The Biden Administration requested $12million specifically for this initiative in the 2024 budget.12 Unless there is legislation to institutionalize this program, a different presidential Administration in the future will easily dismantle if it is not one of their policies. That is the way it is done by every new Presidential Administration, but some of them have had the foresight to institutionalize their programs before they leave office, joining with Congress to establish the program in legislation.
https://www.congress.gov/108/plaws/publ278/PLAW-108publ278.pdf
https://www.usda.gov/sites/default/files/documents/joint-so-3403-stewardship-tribal-nations.pdf
https://www.fs.usda.gov/news/releases/new-agreements-advance-tribal-co-stewardship
https://www.amazon.com/Sweetgrass-Indigenous-Scientific-Knowledge-Teachings/dp/014199195X/
Arthur Denevan, “The Pristine Myth: The Landscape of the Americas in 1492” at https://people.uncw.edu/simmonss/Denevan%20%20The%20Pristine%20Myth%201992.pdf
https://en.wikipedia.org/wiki/Gifford_Pinchot
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd672397.pdf
https://www.cowcreek-nsn.gov/wordpress/wp-content/uploads/2023/06/blm-mou-6.30.23.pdf
https://crsreports.congress.gov/product/pdf/R/R47563
https://crsreports.congress.gov/product/pdf/R/R47563