Marren Sanders. 2007. “
Implementing the Federal Endangered Species Act in Indian Country: The Promise and Reality of Secretarial Order 3206.” Joint Occasional Papers on Native Affairs, 2007-01.
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The federal Endangered Species Act (ESA) is nearly silent regarding its potential application in Indian Country. But by the mid-1990s, the ESA had proven to be a source of serious concern for Indian tribes. In 1997, as the culmination of months of negotiations between agency officials and tribal representatives, the Secretaries of the Interior and of Commerce jointly issued Secretarial Order 3206 (SO 3206), entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” The order sought to harmonize the federal trust responsibility to tribes and the statutory missions of the Departments of the Interior and Commerce in implementing the ESA. This paper considers whether the order has lived up to its promise of true bilateralism between the United States and sovereign tribal governments regarding their rights vís-a-vís the ESA process. It reviews the key requirements of the ESA, pertinent executive orders, and SO 3206 itself. It analyzes government-to-government relations in several cases of “final rule” critical habitat designation and through a review of scholarly literature. Further, it discusses the difference tribes can make by creating and implementing their own habitat management plans, as alternatives to designation of critical habitat on Indian lands, and by actively partnering with the U.S. Fish and Wildlife Service and National Marine Conservation Service. The author concludes that while SO 3206 has not yet lived up to its full promise, it is making a difference by assisting federal land managers and sovereign tribal governments in building stronger working relationships while protecting the environment.
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The Native Village of Kotzebue is the tribal government for the Iñupiaq people of Kotzebue, Alaska. Located on the coast in northwest Alaska, 30 miles north of the Arctic Circle, Kotzebue often hosts research teams eager to study the region’s ecology. For years, researchers lacked accountability to the local people; they did not consider them as equal partners in research and rarely credited the Indigenous knowledge shared. In the late 1990s, the Village government launched its Environmental Program to advance science-based research, driven by tribal priorities and rooted in long-held Iñupiaq values. Through this approach, the tribe is now a full research partner in the majority of projects concerning its land and waters, benefiting its citizens, and producing Best Available Science through the integration of Indigenous knowledge with western science.
Disagreements between tribes and their neighbors over natural resource management are common throughout the US, and local misunderstandings and differences of opinion can lead to strained and even hostile relationships. The Nez Perce Tribe founded its Fisheries Department in exactly such an environment. Declining fish stocks led to resource competition and increased pressure on treaty rights. Today, the department works cooperatively with neighboring jurisdictions to monitor fish numbers, manage fish hatcheries, and promote habitat restoration throughout the Tribe’s traditional lands.
Tribal land is a scarce resource, and tribal leaders often face competing demands concerning land use. Especially pressing are the potential tradeoffs between development and environmental stewardship. The Lummi Nation was eager to develop housing and commercial properties but wanted to make sure that these projects would not damage ecologically sensitive areas on the reservation. To help manage development on its lands, the nation created the first tribally operated commercial wetland mitigation bank in the country. The Lummi Wetland and Habitat Mitigation Bank sells mitigation credits to both tribal and non-tribal projects, helping the nation balance its development and preservation goals.
As the climate changes, abnormally high or low temperatures, strong storms, tidal surge and sea level rise, and unusual precipitation patterns are affecting our environment in many ways. After experiencing numerous extreme weather events, the Swinomish Indian Tribal Community (SITC) decided to put in place a far-reaching action plan to prepare for future climate changes. The Swinomish Climate Change Initiative takes a close look at possible climate related impacts and brings the community together to deal with threats to the Swinomish way of life.
As the city of Phoenix expands toward the northern border of the Gila River Indian Community’s 374,000-acre reservation, the tribe’s economy is becoming increasingly threatened by the city’s consumption of air resources. Beginning in 1997, the Gila River Department of Environmental Quality began to create air quality standards and a monitoring and enforcement regime that ultimately won the Community exclusion from Maricopa County’s ozone non-attainment area. The Community is the first tribe in the country to have a Tribal Air Quality Management Plan approved for federal enforcement and treatment-as-a-state status from the EPA under the Clean Air Act.
Newtok is a traditional Yup'ik village located on the Ninglick River in far-western Alaska. Newtok is now in the process of relocating nine miles south to Nelson Island, the site of the community’s traditional summer camp. Newtok itself has taken the lead in working with dozens of state and federal agencies to piece together its relocation efforts. In 2006, the Newtok Planning Group formed as a centralized, community-specific strategy to relocate the village. The Newtok Planning Group is a one-of-a-kind partnership between Newtok, state and federal government agencies, and non-governmental organizations. As a result, these groups now gather together in the same room to strategize Newtok’s relocation.
Over the past few years, the citizens of the Ak-Chin Indian Community, located south of Phoenix, Arizona, have witnessed the land surrounding their reservation rapidly transform from fields into housing subdivisions. Worried about the impact on the reservation, the Ak-Chin Indian Community established its Community Council Task Force. The Task Force reviews all development plans for the lands surrounding the reservation to determine their resulting influence on the Community’s quality of life, and works with developers and neighboring governments to lessen any potential harm.
Generations ago, a prophecy told the Anishinabe people to move west to where food grew on water. Migrating from the eastern shores of North America, the Anishinabe people settled throughout the Great Lakes region where wild rice fields grew out of fresh water lakes. For hundreds of years, the Bad River Band lived in present day Wisconsin, harvesting wild rice, hunting, and fishing. Sadly, pollution began to threaten this sensitive ecosystem and the Anishinabe identity. Waste was hazardous and abundant on their lands, despite cultural creation and migration stories stressing environmental stewardship. The Bad River Recycling/Solid Waste Department set about creating environmentally sound practices of managing and disposing waste generated on the reservation, ending cycles of harm caused by poor disposal practices. Now, through community-wide education, incentives, and new waste management systems, the Bad River Band citizens boast a clean, safe, and green reservation environment.
The Red Lake Band of Chippewa Indians have long depended on the fish that live in Red Lake, the sixth largest body of freshwater in the United States. Both the waters and walleye of the lake are central to the Red Lake Band people, its history, economy, and culture. But by the mid-1990s, the walleye population had collapsed from over-fishing. Taking drastic but necessary action, the Band negotiated a consensus arrangement with local fishermen and state and federal officials to ban fishing in the lake. Over a ten-year period the fish recovered at an astonishing rate. The tribally led Red Lake Recovery Project now determines when, how, and who can fish the historic waters from which the Band claims its name.
For years, limited on-reservation housing options forced citizens of the Saginaw Chippewa Indian Tribe to look elsewhere to live. Taking action to solve this problem, the Tribe encouraged private lenders to offer mortgages on trust land and to offer terms and rates similar to those available off the reservation. A critical component of this solution was the creation of the Saginaw Chippewa Tribal Land Title and Records Office, which keeps all records and verifies all titles pertaining to trust lands, replacing the BIA's much slower and more cumbersome process. As a result, private mortgage lending has increased, there is a housing boom on Saginaw lands, and economic development options that were simply impossible before have emerged. Most importantly, citizens are moving back home.
Reclaiming traditional lands has been a primary concern of the Hopi Tribe for the last century. In 1996, significant land purchases became possible under the terms of a settlement with the U.S. government, but the tribal government then faced the problem of developing a plan for land reacquisition. In 1998, responding to this challenge, the Hopi Tribe created the Hopi Land Team. With the goal of striking a balance between preservation and the future, the Team works to identify potential purchases, evaluate their cultural and economic significance and potential, and recommend purchases. The work of the Team has led not only to new development initiatives that have increased tribal revenues, but it also brought back to the nation critical cultural resources and sacred sites that play a major role in the life of the Hopi people.
The Yukon River Inter-Tribal Watershed Council stands as a collective initiative of 63 rural, indigenous communities across Alaska and the Yukon Territory with a mission to monitor, advocate, and advise in order to improve the well-being of the watershed and the people who live within it. The Council has set preservation priorities, increased its own capacity to measure water quality, and successfully advocated to remedy and prevent further environmental degradation of the Yukon River watershed.
Since contact, the Cayuse, Umatilla, and Walla Walla have lost cultural objects and sacred sites to looting, development, and archaeological excavations. Over the years these three bands brought together in 1855 and united into a single tribal government in 1949 as the Confederated Tribes of the Umatilla Indian Reservation mourned the loss of irreplaceable cultural artifacts. Sadly, under federal management, these losses continued well into the late twentieth century. Convinced that they could do better, the Tribes began the development of their own Cultural Resources Protection Program in the late 1980s. Today, the Program is a recognized leader in enforcing cultural resource management laws, influencing public policy, and building support for tribal management of critical resources.
In 2000, the Lac Courte Oreilles Band of Lake Superior Chippewa righted half a century of ineffective management of the Chippewa Flowage by signing a Joint Agency Management Plan with the Wisconsin Department of Natural Resources and the United States Forest Service. This Plan identifies not only the common interests that direct the management of the Flowage, but also the grim legacy of loss resulting from the flooding of Lac Courte Oreilles's homelands and burial grounds. The Plan brings together three sovereign governments to preserve a valuable natural resource in a culturally appropriate manner.