Final Report on Co-Stewardship Authorities

CURRENT LAND, WATER, AND WILDLIFE

AUTHORITIES THAT CAN SUPPORT TRIBAL

STEWARDSHIP AND CO-STEWARDSHIP

FINAL REPORT

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SOLICITOR

NOVEMBER 2022

Cover Photo: Bison herd grazing as a storm rolls in. National Park Service / Jacob W. Frank.

(https://npgallery.nps.gov/AssetDetail/1a624913-a47c-48e2-9eca-088b01b9692b).

Final Report on Co-Stewardship Authorities

TABLE OF CONTENTS

INTRODUCTION..................................................................................................1

I. OVERVIEW OF S.O. 3403 ..........................................................................3

A. Principles of Implementation ..........................................................................3

B. Federal Stewardship ........................................................................................4

C. Co-Stewardship ...............................................................................................4

D. Tribal Stewardship ..........................................................................................5

II. TERMINOLOGY .........................................................................................7

A. Tribe ................................................................................................................7

B. Stewardship, Co-Stewardship, and Co-Management .....................................7

C. Indigenous Knowledge ...................................................................................9

III. CO-STEWARDSHIP ..................................................................................11

A. General Federal Authorities ..........................................................................11

1. Treaty Rights .......................................................................................... 11

2. Sub-Delegation Doctrine ....................................................................... 13

3. Inherently Governmental Functions ...................................................... 15

4. Antideficiency Act ................................................................................. 18

5. Administrative Procedure Act................................................................ 18

6. National Environmental Policy Act ....................................................... 19

7. Records-Related Authorities .................................................................. 20

B. Departmental Authorities ..............................................................................22

1. Indian Self-Determination and Education Assistance Act ..................... 22

2. Secretarial Order No. 3342 .................................................................... 25

3. Departmental Manual Part 502 .............................................................. 27

C. Bureau-Specific Authorities ..........................................................................28

1. Bureau of Land Management ................................................................. 28

2. Bureau of Indian Affairs ........................................................................ 34

3. Bureau of Ocean Energy Management & Bureau of Safety and

Environmental Enforcement .................................................................. 36

4. Bureau of Reclamation .......................................................................... 40

5. Fish & Wildlife Service ......................................................................... 42

Final Report on Co-Stewardship Authorities

6. National Park Service ............................................................................ 44

7. Office of Natural Resources Revenue .................................................... 48

8. Office of Surface Mining Reclamation & Enforcement ........................ 49

9. U.S. Geological Survey .......................................................................... 50

IV. TRIBAL STEWARDSHIP .........................................................................53

A. Indian Reorganization Act ............................................................................53

1. Acquisition of Land in Trust .................................................................. 53

2. Restoration of Surplus Reservation Lands ............................................. 53

3. Land Exchanges ..................................................................................... 54

B. Indian Land Consolidation Act .....................................................................54

C. Indian Self-Determination and Education Assistance Act ............................55

D. Act of Aug. 6, 1956.......................................................................................55

E. Hawaiian Home Lands Recovery Act ...........................................................56

F. Federal Property and Administrative Services Act .......................................56

G. Federal Land Policy and Management Act ...................................................57

1. Sale of Tracts of Public Land ................................................................. 57

2. Exchanges of Tracts of Public Lands ..................................................... 57

H. Recreation and Public Purposes Act .............................................................58

I. Tribe-Specific Authorities ............................................................................59

1. Pub. L. No. 76-690 (Spokane and Colville Tribes) ............................... 59

2. Confederated Salish and Kootenai Tribes .............................................. 59

3. Three Affiliated Tribes .......................................................................... 60

4. Catawba Tribe Land Claims Settlement Act ......................................... 60

5. Maine Indian Claims Settlement Act ..................................................... 60

6. Menominee Restoration Act .................................................................. 60

7. Texas Band of Kickapoo Act ................................................................. 60

APPENDIX I. SOL CONTACT INFORMATION...........................................1

A. Alaska Regional Solicitor ...............................................................................1

B. Pacific Northwest Regional Solicitor (Idaho, Montana, Oregon, and

Washington) ....................................................................................................1

C. Pacific Southwest Regional Solicitor (California, Hawaii, Nevada, and the

Pacific Islands) ................................................................................................1

D. Southwest Regional Solicitor (New Mexico, Oklahoma, Texas, Arizona,

Colorado, Kansas, Louisiana, Illinois, Indiana, and Alabama) ......................1

Final Report on Co-Stewardship Authorities

iii

E. Southeast Regional Solicitor (Alabama, Arkansas, Florida, Georgia,

Kentucky, Louisiana, Mississippi, North Carolina, South Carolina,

Tennessee, Puerto Rico, and the Virgin Islands) ............................................1

F. Northeast Regional Solicitor (Connecticut, Delaware, Illinois, Indiana,

Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire,

New Jersey, New York, North Dakota, Ohio, Pennsylvania, Rhode Island,

South Dakota, Vermont, Virginia, West Virginia, and Wisconsin)................1

G. Intermountain Regional Solicitor (Utah, Arizona and Nevada) .....................1

H. Rocky Mountain Regional Solicitor (Colorado, Iowa, Kansas, Missouri,

Nebraska, and Wyoming) ...............................................................................2

I. Office of the Solicitor .....................................................................................2

APPENDIX II. RELATED POLICY & GUIDANCE ......................................1

A. Executive Orders .............................................................................................1

1. E.O. 14008, Tackling the Climate Crisis at Home and Abroad

(Jan. 27, 2021).......................................................................................... 1

2. E.O. 14082, Implementation of the Energy and Infrastructure Provisions

of the Inflation Reduction Act of 2022 (Sep. 12, 2022) .......................... 1

3. E.O. 14052, Implementation of the Infrastructure Investment and Jobs

Act (Nov. 18, 2021) ................................................................................. 1

4. E.O. 13352, Facilitation of Cooperative Conservation (Aug. 26, 2004) . 1

5. E.O. 13175, Consultation and Coordination with Indian Tribal

Governments (Nov. 6, 2000) ................................................................... 2

6. E.O. 13007, Indian Sacred Sites (May 24, 1996) .................................... 2

B. Secretarial Orders ............................................................................................2

1. S.O. 3366, Increasing Recreational Opportunities on Lands and Waters

Managed by the U.S. Department of the Interior (Apr. 18, 2018) ........... 2

2. S.O. 3362, Improving Habitat Quality in Western Big-Game Winter

Range and Migration Corridors (Feb. 9, 2018)........................................ 2

3. S.O. 3356, Hunting, Fishing, Recreational Shooting, and Wildlife

Conservation Opportunities and Coordination with States, Tribes, and

Territories (Sep. 15, 2017) ....................................................................... 3

4. S.O. 3225, Endangered Species Act and Subsistence Uses in Alaska

(Depts. of Interior and Commerce) (Supplementing S.O. 3206)

(Jan. 19, 2001).......................................................................................... 3

5. S.O. 3206, American Indian Tribal Rights, Federal-Tribal Trust

Responsibilities, and the Endangered Species Act (Depts. of Interior and

Commerce) (Jun. 5, 1997) ....................................................................... 3

C. Departmental Directives .................................................................................3

1. 512 DM 2 (Responsibilities for Indian Trust Resources) ........................ 4

Final Report on Co-Stewardship Authorities

2. 512 DM 3 (Responsibilities for Protecting/Accommodating Access to

Indian Sacred Sites) ................................................................................. 4

3. 512 DM 4 (Policy on Consultation with Indian Tribes and Alaska Native

Corporations) ........................................................................................... 4

4. 512 DM 5 (Procedures for Consultation with Indian Tribes) .................. 4

5. 514 DM 1 (Hawaiian Homes Commission Act) ...................................... 4

6. 604 DM 1 (Implementing Landscape-Level Approaches to Resource

Management) ........................................................................................... 5

D. Interagency Agreements .................................................................................5

1. Memorandum of Understanding Regarding Interagency Coordination

and Collaboration for the Protection of Tribal Treaty Rights and

Reserved Rights (2021)............................................................................ 5

2. Memorandum of Understanding Regarding Interagency Coordination

and Collaboration for the Protection of Indigenous Sacred Sites (2021) 5

E. Bureau Guidance .............................................................................................6

1. BIA, National Policy Memorandum NPM-DBIA-2022-2, Supporting

Tribal Nations in Stewardship of Federal Lands and Water

(Nov. 18, 2022) ........................................................................................ 6

2. BLM, Permanent Instruction Manual (PIM) No. 2022-011, “Co-

Stewardship with Federally Recognized Indian and Alaska Native Tribes

Pursuant to Secretary’s Order 3403” (Sep. 13, 2022) .............................. 6

3. BSEE, Bureau Interim Directive (BID) 2022-047N, Part 570 – Tribal

Engagement (Oct. 27, 2022) .................................................................... 6

4. FWS, Director’s Order (DO) No. 227, “Fulfilling the Trust

Responsibility to Tribes and the Native Hawaiian Community, and

Other Obligations to Alaska Native Corporations and Alaska Native

Organizations, in the Stewardship of Federal Lands and Waters”

(Sep. 8, 2022) ........................................................................................... 6

5. FWS, 510 FW 1, Native American Policy (updated Jan. 20, 2016) ........ 7

6. FWS, Traditional Ecological Knowledge for Application by Service

Scientists (Feb. 2011) ............................................................................... 7

7. NPS, Policy Memorandum 22-03, Fulfilling the National Park Service

Trust Responsibility to Indian Tribes, Alaska Natives, and Native

Hawaiians in the Stewardship of Federal Lands and Waters

(Sep. 12, 2022) ......................................................................................... 7

8. NPS, Management Policies 2006 (2006) ................................................. 7

9. NPS, Reference Manual RM 66B, “Handling Protected Information”

(Oct. 2004) ............................................................................................... 8

10. NPS, Making Friends. An Introduction to Building National Park

Service Friends Groups (Apr. 2009) ........................................................ 8

Final Report on Co-Stewardship Authorities

11. BOR, Reclamation Manual, Policy NIA P10, “Indian Policy of the

Bureau of Reclamation” (Jul. 24, 2014, rev. Sep. 24, 2020) ................... 8

12. BOR, Guidance for Implementing Indian Sacred Sites Executive Order

13007 (Sep. 16, 1998) .............................................................................. 9

13. Office of the Solicitor Partnership Legal Primer (2004) ......................... 9

14. DOI Bison Working Group (NPS, FWS, BLM, BIA, USGS), 2020

Bison Conservation Initiative .................................................................. 9

F. Other ...............................................................................................................9

1. Cooperative Ecosystems Studies Units National Network ...................... 9

APPENDIX III. CURRENT EXAMPLES OF COLLABORATIVE

STEWARDSHIP ARRANGEMENTS........................................................1

A. BLM ................................................................................................................1

1. Bears Ears National Monument ............................................................... 1

B. FWS ................................................................................................................1

1. Kodiak National Wildlife Refuge ............................................................ 1

2. Dworshak National Fish Hatchery ........................................................... 1

3. Rappahannock River Valley National Wildlife Refuge ........................... 2

4. Lenape National Wildlife Refuge ............................................................ 2

C. NPS .................................................................................................................2

1. Acadia National Park ............................................................................... 2

2. Statue of Liberty National Monument and Ellis Island ........................... 3

3. Mount Rainier National Park ................................................................... 3

Final Report on Co-Stewardship Authorities

[This page intentionally blank.]

Final Report on Co-Stewardship Authorities

INTRODUCTION

On November 15, 2021, the Secretary of the Interior and the Secretary of

Agriculture jointly issued Secretarial Order No. 3403, Joint Secretarial Order on

Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal

Lands and Waters (S.O. 3403 or Order). The Order in part directed the Bureaus and

Offices (Bureaus) of the Department of the Interior (Department) to undertake a

legal review of current land, water, and wildlife treaty responsibilities and

authorities that can support co-stewardship and Tribal stewardship, to be finalized

within one year.

This report (Final Report) is submitted to the Secretary of the

Interior pursuant to Section 1(d) of S.O. 3403.

The Final Report was prepared by the Department’s Office of the Solicitor (SOL)

to fulfill S.O. 3403’s directive. The Final Report is not intended to be a substitute

for consultation with SOL, and it should not be relied upon to provide legal opinions

or advice regarding the authorities or programs it references, which may be

superseded, withdrawn, repealed, revised, or amended at any time. The Final

Report is not intended to create any right or benefit, substantive or procedural,

enforceable at law or equity, by a party against the United States, its agencies,

officers, or any other person.

The Final Report is organized into four parts. Part I summarizes the policies and

directives of S.O. 3403. Part II reviews key terms to be applied in implementing

S.O. 3403’s policies and directives. Part III surveys authorities and considerations

that may inform co-stewardship efforts by the Department’s bureaus and offices

(Bureaus), and provides an overview of treaty rights principles based on the

understanding that an assessment of rights under a particular treaty can only be

done in consultation with SOL on a case-by-case basis. Part IV surveys authorities

that may inform Bureau efforts to support Tribal stewardship. Appendix I to the

Final Report contains contact information for SOL offices in the Regions and in

Headquarters. Appendix II lists directives, guidance, and policies that may be

relevant to S.O. 3403’s policies and directives. Appendix IV provides some

examples of co-stewardship arrangements between Bureaus and Tribes.

S.O. 3403, § 1(d).

Final Report on Co-Stewardship Authorities

[This page intentionally blank.]

Final Report on Co-Stewardship Authorities

I. OVERVIEW OF S.O. 3403

The Department of the Agriculture and the Department of the Interior together

manage over half a billion acres of federal lands and waters.

Previously owned and

stewarded by Tribes from time immemorial, these lands and waters remain home

to cultural and natural resources of great significance to Tribes and their citizens.

These include sacred religious sites, burial sites, and wildlife, as well as sources of

indigenous foods and medicines, many of which lie within areas in which Tribes

hold reserved rights to hunt, fish, gather, and pray under treaties and agreements

with the United States.

The Secretaries of Agriculture and of the Interior jointly issued S.O. 3403 to

establish goals for their Departments for managing Federal lands and waters within

their jurisdictions in ways that seek to protect the treaty, religious, subsistence, and

cultural interests of federally recognized Tribes and the Native Hawaiian

Community, that ensure such management is consistent with the United States’

nation-to-nation relationship with federally recognized Tribes, and that fulfill the

Federal trust responsibility to those Tribes and their citizens. To further these goals,

S.O. 3403 directs that each Department’s bureaus and agencies undertake the

following steps to the extent consistent with applicable authority:

• Ensure all decisions relating to the stewardship of Federal lands, waters,

and wildlife consider how to safeguard the interests of the Tribes such

decisions may affect.

• Make collaborative agreements with Tribes for the co-stewardship of

Federal lands and waters, including for wildlife and its habitat.

• Identify and support Tribal opportunities to consolidate Tribal homelands

and empower Tribal stewardship of those resources.

• Report annually on actions taken to fulfill the purpose of this Order.

S.O. 3403 further describes the requirements that apply to stewardship activities

and affirms certain principles for informing the Departments’ implementation of

S.O. 3403, described in the sections that follow.

A. Principles of Implementation

S.O. 3403 affirms certain principles that should inform the fulfillment of its

requirements,

which include the following:

• Tribes and Native Hawaiian Organizations can engage with the

Departments directly to address matters of mutual interest in the

management of Federal lands.

See www.fs.usda.gov/about-agency/newsroom/by-the-numbers. See also U.S. Congressional

Research Service, U.S. Department of the Interior: An Overview 1 (R45480; June 2021).

S.O. 3403, § 3.

Final Report on Co-Stewardship Authorities

• The Departments will collaborate with Tribes to ensure they have an

integral place in decision-making relating to the management of Federal

lands and waters, to include consideration of Tribal expertise and

Indigenous knowledge, particularly with respect to managing resources

subject to treaty and reserved rights and subsistence uses.

• The Departments will meaningfully consult Tribes at the earliest stages of

planning and decision-making to ensure they have an opportunity to shape

the direction of management, including by duly considering Tribal

recommendations for Federal lands management.

• The Departments will incorporate Tribal forest, agricultural, and/or range

management plans into their landscape-scale or watershed-scale

restoration and conservation planning, to the maximum extent practicable.

• The Departments and Tribes will work together to develop appropriate

institutional means to implement collaborative and cooperative

stewardship arrangements.

• The Departments will include dispute resolution procedures appropriate to

the subject in collaborative agreements entered into with Tribes.

• Non-Federally recognized Tribes will be presumptively included in S.O.

3403 where authorized by applicable authority.

S.O. 3403 goes on to set forth three sets of requirements that apply to different

forms of collaborative and cooperative stewardship activities, each of which is

described below.

B. Federal Stewardship

S.O. 3403 directs that wherever a Departmental management decision for Federal

lands and waters (or for wildlife and its habitat) may impact the treaty or religious

rights of Tribes,

the Department must incorporate the Principles of Implementation

established by S.O. 3403 and summarized above.

C. Co-Stewardship

S.O. 3403 directs the Department’s Bureaus to endeavor to engage in co-

stewardship with Tribes whenever Federal lands and waters, including wildlife and

its habitat, are located within or adjacent to a Federally recognized Tribe’s

reservation or, if non-adjacent, where Tribes have subsistence or other rights or

interests in them. S.O. 3403 directs the Departments to identify affected Tribes

See, e.g., Advisory Council on Historic Preservation, Guide to Working with Non-Federally

Recognized Tribes in the Section 106 Process at 3 (Feb. 2018) (federal agencies may invite non-

recognized tribes to participate in National Historic Preservation Act review process as “additional

consulting parties” based on a “demonstrated interest” in an undertaking’s effects on historic

properties (citing 36 C.F.R. §§ 800.2(c)(5) and 800.3(f)(3))).

S.O. 3403, § 4.

Final Report on Co-Stewardship Authorities

through use, at a minimum, of a number of information resources.

S.O. 3403 also

directs Bureaus to endeavor to engage in co-stewardship whenever asked to do so

by a Federally recognized Tribe.

To aid the goals of co-stewardship, S.O. 3403 directs that the Department’s Bureaus

to:

• Promote the use of collaborative agreements and/or provisions in land

management plans consistent with the Department’s obligations under

existing law;

• Develop and implement, whenever possible, employee performance

review standards that evaluate progress toward meeting the objectives and

goals of S.O. 3403, including success toward developing new collaborative

stewardship agreements and enhancing existing ones;

• Coordinate and cooperate on co-stewardship efforts and initiatives with the

Department of Agriculture and its bureaus and agencies;

• Use agreements as a tool to foster cooperation on protection of treaty,

subsistence, and religious rights, consistent with consensual policy-making

referenced in Executive Order 13175;

and

• Evaluate and update each Department’s manuals, handbooks, or other

guidance documents for consistency with S.O. 3403.

Finally, where a collaborative or cooperative co-stewardship arrangement is not

permitted by law, S.O. 3403 directs Bureaus to give consideration and deference to

Tribal proposals, recommendations, and knowledge that affect management

decisions on such lands whenever possible.

D. Tribal Stewardship

S.O. 3403 expressly recognizes that it is the policy of the United States to restore

Tribal homelands to Tribal ownership and to promote Tribal stewardship and Tribal

self-government. S.O. 3403 directs the Department, consistent with applicable

authorities and in furtherance of S.O. 3403, to support consolidation of tribal

landholdings within reservations, including Tribal acquisition of Federal lands and

private inholdings; and to facilitate Tribal requests to have lands placed in trust,

including for conservation, protection of sacred sites, cultural or religious use, or

exercise of subsistence or treaty reserved rights. In addition to consolidation of

See Tribal Treaties Database (available at: https://treaties.okstate.edu); Bureau of Indian Affairs

Tribal Land Locator Tool (available at https://biamaps.doi.gov/indianlands); U.S. Forest Service

Tribal Connections Map Viewer (available at

www.arcgis.com/apps/webappviewer/index.html?id=fe311f69cb1d43558227d73bc34f3a32);

Office of Native Hawaiian Relations Native Hawaiian Organization List (available at

www.doi.gov/hawaiian/NHOL);

and Office of Native Hawaiian Relations Native Hawaiian

Homestead and Beneficiary List (available at www.doi.gov/hawaiian/homestead-beneficiary-

associations-list).

S.O. 3403, § 5.

Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000).

Final Report on Co-Stewardship Authorities

lands within a Tribe’s reservation, S.O. 3403 provides support for the trust

acquisition of non-reservation lands consistent with the different forms of Tribal

land tenure that exist in the United States. In the Lower 48 states, for example, some

tribes lack trust or reservation lands and some reservations include large amounts

of non-Tribal fee lands, a legacy of the policy of allotment. In the State of Alaska,

the Alaska Native Claims Settlement Act of 1971 revoked all Alaska Native

reservations (with one exception) but left the Secretary’s authority to take land into

trust for Alaska Natives in the State intact. The main authorities for the acquisition

or exchange of lands into trust for Tribes remains the Indian Reorganization Act of

1934 and the Alaska IRA of 1936, the implementation of which under 25 CFR part

151 is the responsibility of the Bureau of Indian Affairs. However, other laws

applicable to the transfer of lands under Federal ownership may merit consideration

in fulfilling the goals of Section 6 of S.O. 3403.

Final Report on Co-Stewardship Authorities

II. TERMINOLOGY

A. Tribe

S.O. 3403’s policies and directives apply to collaborative and cooperative

arrangements with Federally recognized Tribes and the Native Hawaiian

Community,

which uses Native Hawaiian Organizations as its informal

representatives,

and, in limited instances, non-Federally recognized Tribes.

Based on this, the Department has prepared the following definitions

for use by

Bureaus in implementing S.O. 3403’s policies and procedures:

• Tribe or Tribes. Tribe or Tribes refer to any American Indian or

Alaska Native tribe, band, nation, pueblo, rancheria, village, or

community that the Secretary of the Interior acknowledges to exist

as an Indian Tribe pursuant to the Federally Recognized Indian

Tribe List Act of 1994.

• Native Hawaiian Community. Native Hawaiian Community refers

to the distinct Native Hawaiian indigenous political community that

Congress, exercising its plenary power over Native American

affairs, has recognized and with which Congress has implemented a

special political and trust relationship.

• Native Hawaiian Organization. Native Hawaiian Organization

refers to the informal representatives of the Native Hawaiian

Community that can engage the Department and address matters of

mutual interest with respect to the management of Federal lands and

waters.

B. Stewardship, Co-Stewardship, and Co-Management

The ordinary meaning of the term “stewardship” is “the conducting, supervising,

or managing of something,” especially “the careful and responsible management of

something entrusted to one's care.”

Read within the context of S.O. 3403 as a

whole, “stewardship” can be understood to include activities involved in or relating

to the management of lands and waters by Bureaus and by Tribes. These activities

could include, but are not limited to, landscape- or watershed-scale restoration and

S.O. 3403, § 1 (to ensure management of federal lands and waters in manner seeking to protect

“the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes,

including the Native Hawaiian Community”); id., § 3(a) (Indian Tribes and Native Hawaiian

organizations).

S.O. 3403, § 3(a).

S.O. 3403, § 3(h).

See 502 DM 1.5.E-G.

25 U.S.C. §§ 5130, 5131.

43 C.F.R. § 50.4.

The Department’s Office of Native Hawaiian Relations maintains a list of Native Hawaiian

Organizations (www.doi.gov/hawaiian/NHOL).

See www.merriam-webster.com/dictionary/stewardship.

Final Report on Co-Stewardship Authorities

conservation planning and other Federal land management planning efforts;

resources management;

and management decisions for Federal lands and

waters.

The Department has prepared the following definitions

for use by

Bureaus in implementing S.O. 3403’s policies and procedures:

• Stewardship. Stewardship refers to Departmental activities relating

to management, conservation, and preservation of Federal lands and

waters, including wildlife and its habitat. These include authorized

development activities and the maintenance of existing

infrastructure required to meet mission objectives; management of

vegetation, fish, wildlife, and other resources; protection of cultural

resources; and the provision of recreational and educational

opportunities on Federal lands and waters.

• Co-Stewardship. Co-stewardship broadly refers to collaborative or

cooperative arrangements between Bureaus and Tribes and Native

Hawaiian Organizations related to shared interests in managing,

conserving, and preserving Federal lands and waters. Collaborative

and cooperative arrangements can take a wide variety of forms.

These may include, for example, sharing technical expertise;

combining the capabilities of Bureaus and Tribes and Native

Hawaiian Organizations to improve resource management and

advance the responsibilities and interests of each; making Tribal

knowledge, experience, and perspectives integral to the public's

experience of Federal lands; cooperative agreements; and annual

funding agreements under the Tribal Self-Governance Act (25

U.S.C. § 5361 et seq.) where applicable.

While “stewardship” can be understood to include management-related activities,

it is important to distinguish “co-stewardship” as used in S.O. 3043 from “co-

management,” a distinct term defined by Secretarial Order No. 3342, which also

addresses cooperative and collaborative partnerships between the Department and

Tribes in the management of Federal lands and resources.

The Department has

prepared the following definition

for use by Bureaus in implementing S.O. 3403’s

policies and procedures:

• Co-Management. Co-management narrowly refers to collaborative

or cooperative stewardship arrangements that are undertaken

pursuant to Federal authority that requires the delegation of some

S.O. 3403, § 3(d).

S.O. 3403, § 3(f).

S.O. 3403, § 4.

See 502 DM 1.5.

Secretary of the Interior, Order No. 3342, Identifying Opportunities for Cooperative and

Collaborative Partnerships with Federally Recognized Indian Tribes in the Management of

Federal Lands and Resources (Oct. 21, 2016) (S.O. 3342).

See 502 DM 1.5.C.

Final Report on Co-Stewardship Authorities

aspect of Federal decision-making or that make co-management

otherwise legally necessary, such as management of the salmon

harvest in the Pacific Northwest, where co-management has been

established by law.

C. Indigenous Knowledge

S.O. 3403 directs Bureaus to consider Tribal expertise and/or Indigenous

knowledge as part of Federal decision-making relating to Federal lands.

To that

end, SOL prepared the following definitions

for use by Bureaus:

• Indigenous Knowledge. Indigenous Knowledge refers to a body of

observations, oral and written knowledge, practices, and beliefs that

promote environmental sustainability and the responsible

stewardship of natural resources through relationships between

humans and environmental systems that is applied to phenomena

across biological, physical, cultural and spiritual systems. Like

scientific knowledge, Indigenous Knowledge is an evolving body of

evidence-based knowledge with insights acquired through direct

and long-term experiences with the environment, as well as on

extensive observations, lessons, and skills passed from generation

to generation. Where appropriate, Indigenous Knowledge can and

should inform Department decision-making along with scientific

inquiry.

S.O. 3403, §§ 1, 3(f), 5.

502 DM 1.5.D.

Final Report on Co-Stewardship Authorities

[This page intentionally blank]

Final Report on Co-Stewardship Authorities

III. CO-STEWARDSHIP

Many existing authorities support collaborative and cooperative co-stewardship

arrangements between Bureaus and Federally recognized Tribes. Determining the

authorities that could apply in a particular case requires consultation with SOL

based on the facts and circumstances of each case. For this reason, Bureaus are

encouraged to consult with SOL as early in the process as possible.

This section surveys authorities and considerations that may inform co-stewardship

efforts by Bureaus. It begins with a brief survey of some issues that can arise when

federal agencies collaborate or cooperate with outside entities. It then reviews some

authorities that can apply to the Department in particular. It concludes with a survey

of authorities relevant to particular Bureaus .

A. General Federal Authorities

Employees who undertake co-stewardship activities on behalf of Bureaus must

keep in mind that their status as Federal employees carries with it a general

responsibility to act in the national public interest in accomplishing the

Department’s mission. That status also implicates a number of specific

requirements under Federal law. This section discusses those requirements in broad

terms and is only intended as an introduction to make Bureaus aware of possible

limitations on their co-stewardship activities and to alert their employees of

potential areas of concern when considering proposals for collaborative and

cooperative co-stewardship arrangements with Tribes.

1. Treaty Rights

Treaties are legally binding formal agreements between two or more sovereign

nations. Along with the U.S. Constitution and federal laws, Indian treaties are the

supreme law of the United States and remain valid and enforceable unless and until

Congress clearly expresses its intent to abrogate them. By virtue of the

Constitution’s Supremacy Clause, Indian treaties are superior to conflicting state

laws and regulations. This means that states cannot qualify the rights guaranteed to

Indian tribes under their treaties.

Indian treaties also form the foundation of the unique Federal-Tribal relationship.

As the U.S. Supreme Court has explained, “[i]n carrying out its treaty obligations

with the Indian tribes the Government is something more than a mere contracting

party . . . it has charged itself with moral obligations of the highest responsibility

and trust.”

In keeping with that relationship, Federal agencies have a duty to

consider impacts to treaty rights when making agency decisions.

Seminole Nation v. United States, 316 U.S. 286, 296 (1942).

Final Report on Co-Stewardship Authorities

Within the context of S.O. 3403, two considerations must be kept in mind when

determining whether any treaty rights are implicated by a Federal action or

decision.

First, it is important to remember that the rights arising under an Indian treaty may

be expressly stated or impliedly reserved, and that implied rights are just as

important as express ones. This distinction flows from the principle of reserved

rights, which recognizes that treaties with Tribal Nations are grants from the Tribal

Nations, not grants to them, and that Tribal Nations retain all rights not expressly

granted.

The Supreme Court has recognized implied rights in the context of water

rights, as well as in the hunting and fishing context. In Winters v. United States,

the landmark reserved water rights case, the U.S. Supreme Court held that a right

to water was impliedly reserved in the agreement establishing the Fort Belknap

Reservation, even though the agreement was completely silent as to water. The

Court observed that the purpose of the Reservation was to encourage the tribes to

give up their “nomadic” way of life and become farmers, and that the Reservation’s

arid land would be “practically valueless” without irrigation.

In Menominee Tribe

v. United States,

the Court found an implied right to fish and to hunt on

reservation lands from treaty language describing title to the reservation as being

“held as Indian lands are held.” In these and subsequent implied treaty rights cases,

the courts have made clear that a right will be inferred when that right supports a

purpose for which a Tribal Nation’s reservation was established.

The second consideration is whether the treaty at issue secures any rights outside a

Tribal Nation’s reservation boundaries. Generally speaking, treaty rights are

limited to on-reservation lands except where (1) the treaty explicitly guarantees off-

reservation rights; or (2) the treaty impliedly reserved off-reservation rights

necessary to accomplish the purpose of the tribe’s reservation. In contrast to the

exclusive nature of on-reservation treaty rights, a tribe’s off-reservation treaty

rights are generally non-exclusive and shared with non-Indian citizens. For

example, in Washington v. Washington State Commercial Passenger Fishing

Vessel Ass’n,

the Supreme Court construed treaty language providing for the right

to take fish “at all usual and accustomed grounds and stations . . . in common with

all citizens of the Territory,” as entitling treaty tribes to a presumptive fifty-percent

share of all harvestable fish passing through certain state-controlled, off-reservation

waters, with the remainder going to non-Indian citizens).

These are only two of many considerations that Bureaus must bear in mind when

considering the possible impacts of their actions on treaty rights. Claims to treaty

reserved rights are among the most complex and frequently litigated areas of federal

Indian law, in large part because treaty interpretation necessarily differs according

to the individual historical circumstances of each tribe and each treaty. The canons

United States v. Winans, 198 U.S. 371, 381 (1905).

207 U.S. 564, 576-77 (1908).

Id. at 576.

391 U.S. 404, 405-06 (1968).

443 U.S. 658, 678-79 (1979).

Final Report on Co-Stewardship Authorities

of construction that apply to Indian treaties require that each treaty be read within

the specific historical context in which it was written and interpreted in light of the

particular tribe’s understanding at the time the treaty was made. These rules apply

even when the treaty language under consideration is similar or identical to that

used in another treaty. The Supreme Court has repeatedly instructed that similar

language in different treaties involving different parties need not have the same

effect. An individualized review of the surrounding historical circumstances is

therefore central to every treaty’s interpretation.

S.O. 3403 directs Bureaus to undertake a legal review of current land, water, and

wildlife treaty responsibilities that can support co-stewardship and tribal

stewardship. However, the existence and scope of rights arising under a particular

treaty requires a fact-specific inquiry involving the signatory tribe or tribes, the

rights asserted, and the history of the relevant treaty negotiations. This process will

involve identifying any relevant treaty provisions and use of the Tribal Treaty

Database established with the support of the Department of the Interior and the U.S.

Department of Agriculture.

For these reasons, Bureau staff must approach questions of treaty rights on a case-

by-case basis in consultation with attorneys in SOL. Bureaus may also reach out to

relevant Tribe(s) for their views on the treaty provision(s) at issue. Doing so may

assist a Bureau in more readily obtaining access to relevant documentation, thereby

establishing an administrative record of the Bureau’s efforts at seeking and

considering the Tribe’s own views as to the nature and scope of its treaty rights.

2. Sub-Delegation Doctrine

When participating in collaborative or cooperative arrangements with Tribes,

Bureau staff should bear in mind that their work for the Department implicates a

number of specific requirements under Federal law. The purpose of this section is

to introduce Bureau staff to some of these requirements so they may consider how

they can affect the substance and scope of potential arrangements.

The United States Constitution provides that “all legislative powers...shall be

vested in a Congress of the United States.”

Grounded in the principle of separation

of powers, the non-delegation doctrine bars Congress from delegating to federal

agencies powers that are strictly and exclusively legislative,

unless Congress also

provides an intelligible principle to guide and limit the agency’s use of such

discretion.

https://treaties.okstate.edu/.

U.S. CONST. art. I, § 1.

73 C.J.S. Pub Admin L & Proc 97; Touby v. United States, 500 U.S. 160, 162 (1991); Gundy v.

United States, 139 S.Ct. 2116, 2123 (2019); Daniel Franz, The Subdelegation Doctrine as a Legal

Tool for Establishing Tribal Comanagement of Public Lands: Through The Lens of Bears Ears

National Monument, 32 C

OLO. NAT. RESOURCES, ENERGY & ENVTL L. REV. 1 (2021).

Touby v. United States, 500 U.S. at 164-65.

Final Report on Co-Stewardship Authorities

As relevant here,

the doctrine of sub-delegation limits a federal agency’s ability

to sub-delegate the authority that Congress provides it to entities outside the

agency.

Sub-delegations of agency authority to outside parties may blur the lines

of governmental and political accountability, and could allow a sub-delegee to

pursue goals inconsistent with an agency’s own.

The sub-delegation doctrine is

intended to avoid such results by barring an agency from sub-delegating its final

decision-making authority to parties outside the agency absent affirmative evidence

that Congress intended the agency to be able to do so.

Generally speaking, keeping “final reviewing authority” means more than just

having an option to withdraw from a relationship with a non-Federal entity. Any

arrangement with a non-Federal party must support the national interest and not

inappropriately subordinate the role of the agency to parochial interests. It means

keeping meaningful control over an outside partner’s activities, for example,

through oversight, veto, or otherwise.

Further, it should be noted that sub-delegations involving Tribes may be considered

differently than those with private entities. The U.S. Supreme Court in U.S. v.

Mazurie has held that the limits on sub-delegation are “less stringent in cases where

the entity exercising the delegated authority itself possesses independent authority

over the subject matter”

and that federally recognized tribes in Indian country

“are a good deal more than ‘private, voluntary organizations’.”

Based on Mazurie,

courts have viewed sub-delegations giving a Tribe a measure of added control over

its own tribal lands differently than those to an entity lacking any independent

jurisdiction.

It is important to note, however, that maintaining final reviewing authority does not

prevent other forms of involvement by outside parties in an agency’s decision-

Though the doctrine includes sub-delegations to subordinate officers within an agency, sub-

delegations within an agency presumptively permissible absent affirmative evidence of a

Congressional intent. U.S. Telecom Ass’n v. F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004). See also

Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir. 2014); La. Forestry

Ass'n, Inc. v. Sec'y U.S. Dep't of Labor, 745 F.3d 653, 671 (3d Cir.2014); Frankl v. HTH Corp., 650

F.3d 1334, 1350 (9th Cir.2011); United States v. Mango, 199 F.3d 85, 91–92 (2d Cir.1999); House

v. S. Stevedoring Co., 703 F.2d 87, 88 (4th Cir.1983); United States v. Gordon, 580 F.2d 827, 840

n. 6 (5th Cir.1978); United States v. Vivian, 224 F.2d 53, 55–56 (7th Cir.1955). See also Jason

Marisam, Duplicative Delegations, 63 A

DMIN. L. REV. 181, 242 (2011) (the topic of sub-delegation

no longer discussed in administrative law treatises and casebooks as it once was); Thomas W.

Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 C

OLUM.

L. REV. 2097, 2175 n. 305 (2004).

Franz, supra note 33, at 16.

U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 565-66.

U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 566; National Park and Conservation Ass'n v. Stanton,

54 F.Supp.2d 7, 18 (1999) (federal agency may not completely shift responsibility to private actor);

Bellion Spirits, LLC v. United States, 393 F.Supp.3d 5, 15 (D.D.C. 2019).

U.S. v. Mazurie, 419 U.S. 544, 556-67 (1975) (upholding delegation of authority to Tribes to

regulate liquor in Indian country).

U.S. v. Mazurie, 419 U.S. at 557.

Assiniboine and Sioux Tribes of Fort Peck Indian Reservation v Bd. of Oil and Gas Conservation

of State of Montana, 792 F.2d 782, 795 (9th Cir. 1986).

Final Report on Co-Stewardship Authorities

making processes.

For example, where Congress gives an agency broad discretion

to permit certain activities, the agency may condition its grants on decisions of state,

local or tribal government, provided there is a reasonable connection between the

two.

An agency may also seek input from outside parties in fact-gathering and

advice-giving as part of its decision-making process.

Outside parties may further

provide policy recommendations and advice so long as the agency itself actually

renders the final decision and does not merely “rubber stamp” another’s decision

submitted under the guise of “advice.”

It is also permissible for an agency to sub-

delegate nondiscretionary activities, such as compiling, hearing, and transmitting

technical information, to outside parties.

In developing a collaborative or cooperative arrangement with Tribes or Tribal

entities, Bureau staff must consult SOL to determine when the sub-delegation

doctrine applies.

3. Inherently Governmental Functions

Bureaus must also take care to ensure that a collaborative or cooperative

arrangement does not allow a non-Federal partner to perform an inherently

governmental function of the agency. Grounded in past challenges to federal

delegations of authority to private parties,

the prohibition against the transfer of

inherently governmental functions took shape in the context of federal contracts for

private goods and services.

Typically arising in procurement, its principles may

be useful for assessing which agency functions or activities a Tribal partner may

appropriately perform pursuant to a collaborative or cooperative arrangement.

In 2008, Congress directed the Office of Management and Budget (OMB) to review

then-existing policy and legislation to develop a single, consistent definition of the

National Park and Conservation Ass'n v. Stanton, 54 F.Supp.2d 7, 19 (D.D.C. 1999) (citing R.H.

Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir.1952), cert. denied 344 U.S. 855 (1952); Bellion

Spirits, LLC v. United States, 393 F.Supp.3d 5, 15 (D.D.C. 2019); see also Nat'l Ass'n of Regul. Util.

Comm'rs v. F.C.C., 737 F.2d 1095, 1144 (D.C. Cir. 1984); U.S. Telecom Ass’n v. F.C.C., 359 F.3d

at 568.

U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 567 (citing United States v. Matherson, 367 F.Supp.

779, 782–83 (E.D.N.Y.1973), aff'd 493 F.2d 1339 (2d Cir.1974); Southern Pacific Transp. Co. v.

Watt, 700 F.2d 550 (9th Cir. 1983) (upholding Department regulation conditioning certain rights-

of-way grants on Tribal approval)).

Sierra Club v. Lynn, 502 F.2d 43, 58–59 (5th Cir.1974), cert. denied, 421 U.S. 994; 422 U.S. 1049

(1975); Bellion Spirits, LLC v. United States, 393 F.Supp.3d 5, 15 (D.D.C. 2019); U.S. Telecom

Ass’n v. F.C.C., 359 F.3d at 568.

U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 568; National Park and Conservation Ass'n v. Stanton,

54 F.Supp.2d 7, 9-10 (D.D.C. 1999); Assiniboine and Sioux Tribes of Fort Peck Indian Reservation

v Bd. of Oil and Gas Conservation of State of Montana, 792 F.2d 782 (9th Cir. 1986).

Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, 792 F.2d at 795.

See Thomas J. Laubacher, Simplifying Inherently Governmental Functions: Creating A Principled

Approach From Its Ad Hoc Beginnings, 46 P

UB. CONT. L.J. 791, 799-800 (2017) (citing A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S.

238 (1936)).

See U.S. Congressional Research Service, The Federal Activities Inventory Reform Act and

Circular A-76 (updated Apr. 6, 2007).

Final Report on Co-Stewardship Authorities

term “inherently governmental function.”

OMB did so in Policy Letter 11-01.

Relying on the Federal Activities Inventory Reform (FAIR) Act of 1998, OMB

defined “inherently governmental function” as meaning a function “so intimately

related to the public interest as to require performance by Federal Government

employees.

This includes activities requiring “either the exercise of discretion in

applying Federal Government authority or the making of value judgments in

making decisions for the Federal Government, including judgments relating to

monetary transactions and entitlements.”

Inherently governmental functions also

involve the interpretation and execution of the laws of the United States so as to

(1) bind the United States to take or not to take some action by contract,

policy, regulation, authorization, order, or otherwise;

(2) determine, protect, and advance United States economic, political,

territorial, property, or other interests by military or diplomatic action, civil

or criminal judicial proceedings, contract management, or otherwise;

(3) significantly affect the life, liberty, or property of private persons;

(4) commission, appoint, direct, or control officers or employees of the

United States; or

(5) to exert ultimate control over the acquisition, use, or disposition of the

property, real or personal, tangible or intangible, of the United States,

including the collection, control, or disbursement of appropriations and

other Federal funds.

Inherently governmental functions usually do not include gathering information for

or providing advice, opinions, recommendations, or ideas to Federal Government

officials, or functions that are primarily ministerial and internal in nature.

OMB established two tests for identifying inherently governmental functions.

The first looks at whether the function involves the exercise of the United States’

sovereign powers without regard to discretion, for example, representing the United

States in an inter-governmental forum or sentencing a person convicted of a

Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417,

§ 321, 122 Stat. 4356, 4411 (2008) (codified at 31 U.S.C. § 501 note).

Office of Management and Budget, Policy Ltr. 11-01, Performance of Inherently Governmental

and Critical Functions, 76 Fed. Reg. 56227, 56236 (Sep. 11, 2011) (OMB Policy Ltr. 11-01).

Pub. L. 105-270, § 5(2)(A), 112 Stat. 2382, 2384 (Oct. 19, 1998) (codified at 31 U.S.C. § 501

note). See also U.S. Congressional Research Service, Definitions of “Inherently Governmental

Function” in Federal Procurement Law and Guidance (R42325, Dec. 23, 2014).

FAIR Act, § 5(2)(B); OMB Policy Letter 11-01, § 3(a).

FAIR Act, § 5(C); OMB Policy Letter 11-01, § 3(b). This includes, for example, building security,

mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance,

warehouse operations, motor vehicle fleet management operations, or other routine electrical or

mechanical services.

OMB Policy Ltr. 11-01, § 5-1(a).

Final Report on Co-Stewardship Authorities

crime.

The second considers the exercise of discretion, and whether in a given

case it commits the government to a course of action where two or more alternatives

exist and decision-making is not already limited or guided by existing policies,

procedures, directions, orders, and other guidance that identifies acceptable

decisions or conduct or that subjects discretionary decisions to oversight and final

approval by agency officials.

OMB further developed criteria to assist agencies identify “critical functions” that

should also only be performed by Federal employees. Critical functions are those

“necessary to the agency being able to effectively perform and maintain control of

its mission and operations,” which are typically “recurring and long-term in

duration.”

Determining if a function is “critical” or not depends on the mission

and operations, which differ between agencies and within agencies over time.

Hence the determination requires the exercise of informed judgment by agency

officials, who must consider the importance that the function holds for the agency

and its mission and operations.

The more important the function, the more

important that the agency have internal capability to maintain control of its mission

and operations.

Inherently governmental functions and critical function limit the activities a Bureau

may contract with an outside partner to perform. For example, absent some other

authority, an agreement to allow an external Bureau partner to grant or deny a

permit or application would likely be an improper transfer of an inherently

governmental function. Other examples of inherently governmental functions

include determining the operating hours of a park or refuge or determining to whom

a parcel of Federal land might be sold.

Nevertheless, Bureaus retain significant latitude to use agreements with outside

partners to support their government operations without inappropriate transfers of

agency authority. The inherently governmental function limitation would not, for

example, prohibit an arrangement to develop an exhibit on geological sites within

a BLM National Monument to be placed within the Monument’s visitor center. Nor

should it prevent a partner from determining, consistent with USGS guidelines, the

precise location of a USGS stream gauge station.

In developing a collaborative or cooperative arrangement with Tribes or Tribal

entities, Bureau staff must consult with attorneys in SOL to avoid any inappropriate

transfer of the Bureau’s inherently governmental functions or its critical functions.

One final note: It is important to distinguish “inherently governmental function” as

defined in the FAIR Act and in OMB Policy Letter 11-01 from “inherent federal

OMB Policy Ltr. 11-01, § 5-1(a)(1)(i).

OMB Policy Ltr. 11-01, § 5-1(a)(1)(ii).

OMB Policy Ltr. 11-01, § 3.

OMB Policy Ltr. 11-01, § 5-1(b).

Id.

Final Report on Co-Stewardship Authorities

function,” a distinct term used in the Tribal Self-Government Act and that applies

only in the context of Tribal agreements entered pursuant to Title IV of the Indian

Self-Determination and Education Assistance Act, which is separately discussed in

Section III.B.1 below.

4. Antideficiency Act

Another important consideration for purposes of co-stewardship is the

Antideficiency Act,

which contains a series of controls over the use of

appropriated funds and which generally requires that Federal agencies must “pay

as they go.” Absent specific authority, government officials are prohibited from

making payments or committing the United States to make payments at some future

time, unless there is enough money currently available in their agency’s funds to

cover the cost in full.

The Antideficiency Act applies to all Federal activities, including partnerships and

other collaborative and cooperative arrangements. Bureaus should be mindful that

any co-stewardship activities they undertake must stay within the bounds of fiscal

year funding, and no co-stewardship arrangements should be entered that purports

to bind the Department to pay funds in the future, in advance of any appropriations

available in terms of time, purpose, and amount. One example would be a co-

stewardship arrangement that provides for the Department to commit a certain sum

in grant funds to an organization for each of the next five years, which would likely

be improper under the Antideficiency Act unless there are sufficient funds

specifically available for more than one year. Bureau staff must consult SOL to

determine when the Anti-Deficiency Act applies.

5. Administrative Procedure Act

The Administrative Procedure Act (APA)

governs how Federal agencies make

and enforce their rules and procedures. Collaborative and cooperative co-

stewardship activities have the potential to raise two kinds of APA issues, one

relating to rulemaking and adjudication, the other to possible challenges to actions

a Bureau takes in aid of co-stewardship activities.

With respect to rulemaking, Bureaus should be aware how some co-stewardship

activities might be seen as “rules” or “adjudications” within the meaning of the

APA. The APA defines a “rule” as “the whole or part of an agency statement of

general or particular applicability and future effect designed to implement,

interpret, or prescribe law or policy or describing the organization, procedure, or

practice requirements of an agency.”

Pub. L. 97–258, 96 Stat. 923 (codified at 31 U.S.C. §§ 1341-1342).

Pub. L. 89–544, 80 Stat. 381 (1966) (codified as amended at 5 U.S.C. §§ 551-559).

The APA may also provide the basis for challenges under the National Environmental Policy

Act, the Endangered Species Act, and other statutes that the Department may implement.

5 U.S.C. § 551(4).

Final Report on Co-Stewardship Authorities

In the context of co-stewardship, a “rule” may be considered an agency action that

regulates the future conduct of the public. For example, rules of use for certain areas

within a National Park pursuant to a co-stewardship arrangement between a Tribe

and a National Park System unit might be seen to create a “rule” for APA purposes.

Similarly, a determination that a person should be denied access to those areas for

having violated the rules under the same co-stewardship arrangement could be seen

as an “adjudication” within the meaning of the APA. In each case, adherence to the

procedural steps of the APA would be required. Bureaus must consult SOL to

determine when the APA applies.

With respect to APA challenges to co-stewardship activities, several potential

grounds for a claim exist. The most common is the claim that an agency action is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.”

Depending on the precise nature of the actions at issue, this standard could,

in some instances, apply to collaborative or cooperative co-stewardship

arrangements under S.O. 3403. When it does, it means that the decision to enter

into a co-stewardship arrangement and the substantive activities of the arrangement

itself could ultimately be reviewed by a Federal court. To survive such a challenge,

the relevant Bureau or agency would have to show that its decisions relating to the

co-stewardship arrangement were rational and reasonable and able to be articulated.

In addition, APA challenges are usually decided on an administrative record, which

is made up of the materials the Department relied on in taking its action. Bureau

employees should therefore take care to ensure that their co-stewardship decisions

and actions are based on, and supported by, a complete and thoroughly documented

administrative record.

6. National Environmental Policy Act

The National Environmental Policy Act (NEPA)

is intended to ensure that

information about the environmental impacts of federal actions is available to

Federal decision makers and the public before their decisions are made. In some

cases, NEPA requires the responsible federal official to prepare an Environmental

Impact Statement (EIS) or other environmental document.

Though context-specific, it is possible that activities connected to a co-stewardship

arrangement could constitute a “major federal action” requiring NEPA review. For

instance, a co-stewardship arrangement allowing a Tribe or Tribal organization to

conduct habitat improvement for a protected species could constitute a major

federal action within the meaning of NEPA. It is therefore critical to assess whether

a proposed co-stewardship activity might constitute a federal action covered by

NEPA and, if so, the steps, if any, that are needed to comply with NEPA’s

requirements. For this reason, it would be prudent, to the extent possible, for

5 U.S.C. § 706(2)(A).

42 U.S.C. §§ 4321 et seq.

516 DM 1.3. The responsible official is normally the lowest-level official with overall

responsibility for formulating, reviewing, or proposing an action or, alternatively, has been

delegated the authority or responsibility to develop, approve, or adopt a proposal or action. Id.

Final Report on Co-Stewardship Authorities

Bureaus to make their Tribal partners aware of NEPA’s applicability and the

potential for NEPA litigation resulting from co-stewardship activities. Further

information about NEPA and the Department’s NEPA policies and requirements

are available from the Department’s Office of Environmental Policy &

Compliance,

and from the Department’s NEPA webpage.

Bureau staff must

consult SOL to determine when NEPA applies.

7. Records-Related Authorities

The following authorities may also apply to records and information prepared in

connection with a proposed collaborative or cooperative co-stewardship

arrangement.

a. Freedom of Information Act

The Freedom of Information Act (FOIA)

provides outside parties potential access

to any information that is created or obtained by the Department and that is under

the Department’s control at the time of the request. Bureaus should keep in mind

that documents generated during co-stewardship activities will generally be

considered agency records subject to release under FOIA. This may be especially

relevant when considering co-stewardship activities involving cultural or natural

resources holding significant historical or sacred importance to Tribes.

However, the Department may withhold documents from release to the public if

they fall within one of nine specified FOIA exemptions. Exemption 5 of FOIA

(covering, among other things, internal documents that are both pre-decisional and

deliberative) is the exemption that would most likely be relied on for withholding

co-stewardship-related documents requested under FOIA, provided, however, that

have not been shared with a Tribal partner. For this exemption to apply, the

documents must be “inter-or intra-agency.” This means that in most circumstances,

only documents generated within the Department (or that come from another

Federal agency) will qualify under this exemption.

A related issue to bear in mind is “waiver” of a FOIA exemption that would

otherwise allow a Bureau or office to withhold a particular document from

disclosure under FOIA. In effect, a Bureau or office can waive its right to rely on a

FOIA exemption where there has been an earlier disclosure of a document to an

outside party, such as a non-Federal organization. Such a disclosure would

ordinarily prevent the Department from asserting a FOIA exemption, should a

request for the documents be made. As a result, Bureaus should carefully consider

whether they may wish to withhold a particular document in the future, and avoid

providing partners any such documents. Bureau staff must consult SOL to

determine when FOIA applies.

https://www.doi.gov/oepc.

https://www.doi.gov/nepa.

5 U.S.C. § 552.

Final Report on Co-Stewardship Authorities

b. Privacy Act

The Privacy Act

imposes certain requirements on how Federal agencies handle

information under their control that is identifiable to a specific individual and that

is retrieved from files using a personal identifier. Department employees should

carefully consider whether any information is being collected and/or used in a co-

stewardship activity (for example, lists of volunteers from a particular organization)

in such a way as to bring it within the Privacy Act. The Privacy Act limits the

permissible uses of such information and restricts its release outside of the

Department, such as to a non-Federal partner.

The Privacy Act requires maintenance of a system of records in accordance with a

published Federal Register notice and generally allows the subject individuals to

access and amend their records. It also requires a notice specifying when

information the Department collects will be placed in a Privacy Act system of

records. Bureau staff must consult SOL to determine when the Privacy Act applies.

c. Federal Records Act

The Federal Records Act (FRA) is a collection of statutes governing the creation,

management and disposal of records by federal agencies with provisions that apply

to Federal agencies.

The FRA requires Federal agencies to preserve as Federal

records any recorded information, regardless of media, made or received by a

Federal agency in accordance with law or in the conduct of business, that is valuable

as evidence of the organization, functions, policies, decisions or other activities of

the Federal government, or because of the value of information it contains. If a

document is determined to be a Federal record, it must be maintained according to

established records disposition schedules. Co-stewardship-related Federal records

must also be managed in accordance with the Federal Records Act. Additionally,

Bureaus should be aware that documents created by partners and obtained by the

Department may also fall within the definition of a Federal Record. This could

include, for example, a document prepared by a Tribe describing its activities under

a cooperative relationship with a Bureau or office to conduct research into the

Park’s archaeological resources. Bureau staff must consult SOL to determine when

the Federal Records Act applies.

d. Paperwork Reduction Act

The Paperwork Reduction Act (PRA)

applies whenever a Federal agency

conducts or sponsors a collection of information that involves identical questions

posed to 10 or more individuals. The PRA requires the Office of Management and

Budget to approve such collections of information. The PRA may apply, for

example, to a partnership in which the partner develops and implements a customer

satisfaction survey of visitors to a National Monument if the survey were

5 U.S.C. § 552a.

44 U.S.C. § 3101 et seq.

44 U.S.C. § 3501 et seq.

Final Report on Co-Stewardship Authorities

determined to be a Department “sponsored” collection of information. Bureau staff

must SOL to determine when the PRA applies.

B. Departmental Authorities

1. Indian Self-Determination and Education Assistance Act

a. Generally

The Indian Self-Determination and Education Assistance Act (ISDEAA) Act

emphasizes tribal self-determination and self-governance “in planning, conduct,

and administration” of certain federal programs.

Passed by Congress in 1975,

Title I of ISDEAA authorized the Departments of the Interior and Health and

Human Services to contract with Tribes to assume planning and administering

certain federal services and programs with federal funding, referred to as 638

contracts or self-determination contracts.

In 1994, Congress amended ISDEAA to add a new Title IV, known as the Tribal

Self-Governance Act.

The Tribal Self-Governance Act authorizes the Department

to enter into self-governance compacts with Tribes that participate in the

Department’s Tribal Self-Governance Program.

Approved compacts allow Tribes

to assume funding of, and control over, some federal programs, , services,

functions, or activities (PFSAs) that the Department otherwise would provide

directly to Tribes. To be eligible for participation in the Self-Governance Program,

a Tribe must, among other things, demonstrate financial stability and management

capability. The Office of Self Governance (OSG) is responsible for administering

self-governance compacts and funding agreements for Department programs.

ISDEAA authorizes the Department to contract or compact with Tribes, upon a

Tribe’s request, and both establish programs that may be contracted or compacted

under ISDEAA, such as BIA programs authorized under the Snyder Act, 42 Stat.

208, and BIA and non-BIA programs within the Department that benefit Indians.

If the contractibility of a program is unclear, the Department first looks at the

authorizing language establishing the program, which may include an

appropriations act. The appropriations language should indicate the origin of the

funding and may also direct how that funding shall be used. Next, the Department

would determine whether the Secretary is or intends to carry out the program being

funded. If the Secretary intends to carry out the program, in the case of new funding,

or already provides the program, then the program is contractible under ISDEAA.

If the Secretary does not carry out the program, then it is likely that the program is

not contractible.

Additionally, where the performance of a function is “so intimately related to the

public interest as to mandate performance only by Federal Government

Pub. L. No. 93-638, 88 Stat. 2203 (1975) (codified as amended at 25 U.S.C. § 5301 et seq.).

Pub. L. 103-413, tit. IV, 108 Stat. 4272 (1994) (codified at 25 U.S.C. § 5361 et seq.).

25 U.S.C. § 5362; see also https://www.bia.gov/as-ia/osg.

25 U.S.C. § 5321(a) (Title I); id. at § 5362 (Title IV).

Final Report on Co-Stewardship Authorities

employees,” the function is “inherently Federal” and may not be assumed by a

Tribe under ISDEAA.

Generally, these functions require the exercise of

substantial discretion while applying government authority, use of value judgment

when making decisions for the government, or both, such as: (1) binding the United

States to take or not take some action by contract, policy, regulation, authorization,

order, or otherwise; (2) determining, protecting, and advancing economic, political,

territorial, property, or other interests by military or diplomatic action, civil or

criminal judicial proceedings, contract management, or otherwise; (3) significantly

affecting the life, liberty, or property of private persons; or (4) exerting ultimate

control over the acquisition, use, or disposition of United States property (real or

personal, tangible or intangible, including establishing policies or procedures for

the collection, control, or disbursement of appropriated and other federal funds.

Determinations of whether a function is “inherently Federal” are made on a case-

by-case basis according to the PFSAs the Tribe seeks to assume, the applicable

federal law governing the activity, and the amount of authority to be retained by

the Bureau.

Where a Tribe disagrees with a Bureau’s determination, it may

request reconsideration by the Secretary.

In 1996, Solicitor John Leshy issued a guidance memorandum

for implementing

the Tribal Self-Government Act. Solicitor Leshy’s memorandum (Leshy

Memorandum) reviews guidance provided by OMB and discusses qualifications

that apply in the context of working with Tribes. Because federal law makes clear

that Tribes are not like private contractors, Bureaus must consider the relation of

the function sought in a contract to a Tribe’s sovereign power. OMB’s guidance is

simply that, for which reason it must yield if it conflicts with specific provisions of

the Tribal Self-Governance Act. The Leshy Memorandum concludes that the act’s

prohibition on contracting inherently federal functions can only be applied on a

case-by-case basis, for which reason Bureaus considering entering a collaborative

or cooperative arrangement with Tribes under the TGA should closely consult with

attorneys in SOL.

Even if a program is eligible to be contracted, Tribes’ participation is voluntary,

and Tribes have options in how they receive services. Under certain circumstances,

the Secretary is authorized to decline to enter into a contract and is allowed to reject

the terms of a compact or funding agreement. The Secretary is also authorized to

reassume control of a contracted or compacted program under certain conditions.

25 U.S.C. § 5361(6) (defining “inherent federal function”); id. at § 5363(k) (no authorization to

enter agreements for inherently federal functions). See also 31 U.S.C. § 501 note at § 5(2)(A) (“a

function so intimately related to the public interest as to require performance by Federal

Government employees.”). See also OMB Circular A-76 at § 6(e) (“a function which is so

intimately related to the public interest as to mandate performance by Government employees.”).

U.S. Dep’t of Interior, Office of the Solicitor, Inherently Federal Functions under the Tribal

Self-Governance Act, Memorandum to Assistant Secretaries and Bureau Heads 11 (May 17, 1996)

(Leshy Memo).

Leshy Memo at 14.

Leshy Memo.

Final Report on Co-Stewardship Authorities

A key difference between self-determination contracts and self-governance

compacts is the amount of Tribal flexibility. Under Title I, the Department must

approve any substantial changes to a contract. Title IV, however, provides Tribes

limited authority to redesign or consolidate PFSAs and reallocate funding in certain

circumstances. Thus, although PFSAs may be redesigned under contracts and

compacts, Tribes with a contract must receive prior approval to do so.

b. Non-BIA Programs Eligible for ISDEAA

Another difference between self-determination contracts and self-governance

compacts is that under Title IV, both BIA and non-BIA Bureaus have discretion to

fund PFSAs that are not eligible for self-determination contracts under Title I.

Specifically, self-governance compacts may include PFSAs administered by the

Department other than through the BIA that are otherwise available to Indian tribes

or Indians and “may … also include other programs, services, functions, and

activities, or portions thereof … which are of special geographic, historical, or

cultural significance to the participating Indian tribe requesting a compact.”

Each

Bureau must identify potentially contractible programs by activity and unit

(location) and publish the results in the Federal Register annually.

The

Department interprets the latter section as granting the government discretion to

fund programs “that may coincidentally benefit Indians but that are national in

scope and [are] not by definition ‘programs for the benefit of Indians because of

their status as Indians.’”

A wide variety of non-BIA programs are eligible for inclusion in self-governance

funding agreements.

These include programs within Bureau of Land Management

(BLM) (Minerals Management Inspection; Cadastral Survey; cultural heritage,

Bureau of Reclamation (BOR), Office of Natural Resource Revenues (ONRR),

National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), U.S.

Geological Survey (USGS), Bureau of Trust Funds Administration (BTFA), and

Appraisal and Valuation Services Office (AVSO). These are summarized in the

following chart. Other programs subject to third-party agreements are addressed in

the Bureau-specific sections of this review.

Under section 412(c) of Title IV of ISDEAA, the Secretary of the Interior

(Secretary) is required to publish an annual list of non-BIA programs, services,

25 U.S.C. § 5363(b)(2), (c).

25 U.S.C. § 5365(c). See, e.g., U.S. Dep’t of Interior, Office of the Secretary, List of Programs

Eligible for Inclusion in Funding Agreements Negotiated with Self-Governance Tribes by Interior

Bureaus Other than the Bureau of Indian Affairs and Fiscal Year 2021 Programmatic Targets, 86

Fed. Reg. 14147 (Mar. 12, 2021). The Agriculture Improvement Act of 2018, Pub. L. 115-334, tit.

VIII, § 8703, 132 Stat. 4877 (Dec. 20, 2018) (codified at 25 U.S.C. §§ 3115b), enables Tribes to

enter into similar agreements with the Department of Agriculture involving the administration or

management of certain national forest lands.

Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 990 (9th Cir. 2005) (quoting 65 Fed. Reg.

78,688, 78,695 (Dec. 15, 2000)).

See, e.g., 86 Fed. Reg. 14147 (Mar. 12, 2021) (includes details on existing AFAs between non-

BIA bureaus and Tribes).

Final Report on Co-Stewardship Authorities

functions, and activities, or portions thereof, that are eligible for inclusion in

agreements negotiated under the self-governance program, as well as programmatic

targets for non-BIA Bureaus.

Bureau

Program(s)

BLM

Minerals management services; cadastral surveys; cultural heritage activities; natural

resources management; range management; riparian management; recreation

management; wildlife and fisheries habitat management; wild horse management.

BOR

Components of water resource projects with proximity to self-governance tribes.

ONRR

Audits of Tribal royalty payments; verification of royalty payments; royalty

valuation; intergovernmental Personnel Act internship program.

NPS

Archaeological surveys; comprehensive management planning; Cultural Resource

management projects;

ethnographic studies; erosion control; fire protection;

gathering baseline; subsistence data—

Alaska; hazardous fuel reduction; housing

construction and rehabilitation; interpretation; janitorial services

; maintenance;

natural resource management projects;

operation of campgrounds; range

assessment—Alaska; reindeer grazing—Alaska; road repair; solid waste collection

and disposal; trail rehabilitation; watershed restoration and maintenance; Beringia

research; Elwha River restoration; recycling programs.

FWS

Subsistence programs in Alaska; restoration and conservation technical assistance;

endangered species programs; education programs; environmental contaminants

program; wetland and habitat conservation restoration; fish hatchery operations;

National Wildlife Refuge operations and maintenance.

USGS

Data acquisition and analysis activities.

BTFA

Beneficiary processes program (Individual Indian Money Accounting technical

functions).

AVSO

Real property appraisal and valuation services.

The Solicitor has designated SOL-Division of Indian Affairs as Lead Office for

ISDEAA. Pursuant to the Solicitor’s Manual, this means that DIA is responsible

for coordinating issues relating to ISDEAA with all SOL Divisions and Regions,

as appropriate. This includes notifying Divisions and Regions of issues and

developments concerning ISDEAA; identifying issues and developments of

concern within Divisions and Regions and attempting to reconcile them; and

briefing the Solicitor and appropriate Deputy Solicitors on relevant issues and

conflicts.

2. Secretarial Order No. 3342

See, e.g., List of Programs Eligible for Inclusion in Funding Agreements Negotiated With Self-

Governance Tribes by Interior Bureaus Other Than the Bureau of Indian Affairs and Fiscal Year

2022 Programmatic Targets, 87 Fed. Reg. 7201 (Feb. 8, 2022).

While ONRR can include these programs in a self-determination contract or self-governance

compact, they are more often the subject of a cooperative agreement under Section 202 of the

Federal Oil and Gas Royalty Management Act, discussed further below.

NPS also lists 68 Park Service Units with close proximity to Self-Governance Tribes. 86 Fed.

Reg. 14149-14150.

FWS also lists 33 refuges and hatcheries with close proximity to Self-Governance Tribes. 86

Fed. Reg. 14151.

U.S. Dep’t of Interior, III SOL. MANUAL 8.1 (rev. Dec. 16, 2021).

Final Report on Co-Stewardship Authorities

The policies and directives of S.O. 3342, Identifying Opportunities for Cooperative

and Collaborative Partnerships with Federally Recognized Indian Tribes in the

Management of Federal Lands and Resources (Oct. 21, 2016) have direct relevance

for co-stewardship.

Like S.O. 3403, S.O. 3342 proceeds from the recognition of Tribes’ special

geographical, historical, and cultural connections to Federal lands and waters and

their traditional ecological knowledge and practices regarding resource

management.

S.O. 3342 encourages “cooperative management agreements” and

“collaborative partnerships” between Department resource managers and Tribes

that further shared interests in the management of Federal lands and resources.

S.O. 3342 is intended to establish a process (and provide institutional support) to

ensure the Department’s land managers evaluate and develop opportunities to

further establish partnerships that benefit Tribes and Federal agencies.

Section 1

of S.O. 3342 articulates the principles and legal foundation for interactions between

the Department’s land management Bureaus and Tribes as they relate to shared

interests in managing, conserving, and preserving natural and cultural resources

under their responsibility.

S.O. 3342 anticipates that cooperative and collaborative arrangements with Tribes

will vary depending on circumstances and may include actions that range from

improving the sharing of technical expertise; making Tribal knowledge,

experience, and perspectives an integral part of the public’s experience with federal

lands; combining Tribal and Bureau-specific capacities to improve resource

management while advancing the responsibilities and interests of both; to annual

funding agreements under the Tribal Self-Governance Act.

Section 5 of S.O. 3342, which sets forth the Department’s approach to cooperative

and collaborative partnerships with Tribes, directs Bureaus to:

 Identify opportunities for cooperative management arrangements and

collaborative partnerships with Tribes; and

 Undertake appropriate efforts to prepare their respective staffs to partner

with Tribes in the management of natural and cultural resources over which

the Bureaus have jurisdiction.

Such efforts shall include but are not limited to:

S.O. 3342. See also id., § 5(b) (observing that Tribes offer significant knowledge and experience

in the management of natural resources, including traditional ecological knowledge and practices,

which can enhance the management of federal resources by Bureaus and better protect Tribal

rights and interests).

S.O. 3342, § 5.

S.O. 3342, § 1.

S.O. 3342, § 2(c)(2). Section 6 of S.O. 3342 provides examples of cooperative and collaborative

arrangements then in existence between Tribes and Bureaus.

S.O. 3342, § 5.

Final Report on Co-Stewardship Authorities

 Identifying key personnel to explore opportunities for cooperative

management arrangements and collaborative partnerships;

 Developing Bureau-specific guidance for cooperative and collaborative

partnerships with Tribes; and

 Engaging in Tribal consultations at Regional and unit-specific levels, when

requested to do so, to better understand Tribal interests in specific

cooperative and collaborative opportunities.

To assist Bureaus in identifying appropriate subjects of a cooperative agreement or

collaborative partnership arrangement, S.O. 3342 includes a non-exclusive list of

activities to which it will apply:

 the delivery of programs & services;

 the identification, protection, preservation, and management of culturally

significant sites, landscapes, and resources;

 the management of fish and wildlife resources and plant resources,

including collection of plant material;

 the management and implementation of maintenance activities; and

 the management of information related to tribal, cultural, and/or

educational materials related to Bureau units.

3. Departmental Manual Part 502

The Department of the Interior’s Departmental Manual (DM) is the authorized

means of documenting and issuing instructions, policies, and procedures having

general and continuing applicability to Departmental activities.

Bureaus must

comply with the DM’s provisions unless superseded by appropriate authority.

Consistent with the DM’s requirements,

100

the Department has converted the

policies and directives of S.O. 3403 into new DM Part 502, entitled Collaborative

and Cooperative Stewardship with Tribes and the Native Hawaiian Community

(Part 502). Part 502 also incorporates the policies and directives of S.O. 3342,

Identifying Opportunities for Cooperative and Collaborative Partnerships with

Federally Recognized Indian Tribes in the Management of Federal Lands and

Resources (Oct. 21, 2016), whose policies and directives on ways Bureaus can

identify opportunities for cooperative and collaborative partnerships with Tribes in

managing federal lands and resources overlap with S.O. 3403.

Chapter 1 of Part 502, Policies and Procedures, sets forth the policy and

responsibilities for collaborative and cooperative stewardship of Federal lands and

waters with Tribes and the Native Hawaiian Community. It includes definitions of

S.O. 3342, § 5.

011 DM 1.1.

011 DM 1.2.B (e.g., statute, regulation, Executive order, Secretarial order, or court decision).

100

012 DM 1.1 (requiring Secretarial orders to be converted to appropriate parts of the DM).

Final Report on Co-Stewardship Authorities

key terms such as “Stewardship,” “Co-Stewardship,” “Indigenous Knowledge,”

“Tribe,” and “Native Hawaiian Community.”

101

Chapter 2 of Part 502 sets forth the charters and responsibilities of two bodies with

responsibilities for ensuring the consistent implementation of 502 DM 1. The first

is an inter-Bureau Departmental committee (Co-Stewardship Committee or

Committee) comprised of senior career representatives from BLM, the Bureau of

Ocean Energy Management (BOEM), BOR, NPS, and FWS.

102

The Committee is

intended, among other things, to provide an inter-Bureau forum for discussing and

resolving issues related to the planning and implementation of co-stewardship

arrangements.

Chapter 2 of Part 502 separately establishes a Working Group on Collaborative

Stewardship within the Department’s Office of the Solicitor (SOL Working

Group), whose Chairperson is an ex officio member of the Co-Stewardship

Committee).

103

Comprised of Associate Solicitors, Regional Solicitors, and Field

Solicitors, the purpose of the SOL Working Group is to provide legal advice to the

Co-Stewardship Committee when requested, and to provide an SOL-wide forum

for identifying and discussing conflicting views that may arise with respect to

authorities that may apply to co-stewardship activities and for elevating questions

and issues to the Solicitor or Principal Deputy Solicitor as needed.

C. Bureau-Specific Authorities

1. Bureau of Land Management

The Bureau of Land Management (BLM) manages the Nation’s public lands

pursuant to its organic act, the Federal Land Policy and Management Act of 1976

(FLPMA)

104

and other statutes. Unless otherwise provided by law, FLPMA directs

the Secretary, through the BLM, to manage the public lands “on the basis of

multiple use and sustained yield,” which requires management of the public lands

and resources for a variety of uses, including but not limited to, recreation, range,

timber, minerals, watershed, wildlife and fish, and natural, scenic, scientific and

historical values to achieve and maintain in perpetuity output of various renewable

resources of the public lands.

105

The BLM manages some of the West’s most

spectacular landscapes, many of which are found in the BLM’s 32 million-acre

National Conservation Lands System. The BLM also manages federally owned

minerals underlying surface lands managed by other agencies. In sustaining the

101

502 DM 1.5.

102

The Committee also includes ex officio representatives from the Office of Policy Analysis, the

Bureau of Indian Affairs, and the Office of Native Hawaiian Relations.

103

S.O. 3342 directs the Office of the Solicitor to develop a working group to advise Bureaus on

legal questions associated with exploring opportunities for and entering into cooperative

agreements and collaborative partnerships with Tribes. S.O. 3342, § 5.

104

43 U.S.C. § 1701 et seq.

105

See 43 U.S.C. § 1732(a) (directing management of the public lands under the principles of

multiple use and sustained yield except where otherwise provided by law), 1703(c), (h) (defining

multiple use and sustained yield).

Final Report on Co-Stewardship Authorities

health, diversity, and productivity of America’s public lands for the use and

enjoyment of present and future generations, BLM administers more public land -

more than 45 million surface and 700 million sub-surface acres - than any other

Federal agency. BLM also has specific and unique responsibilities associated with

the Federal Subsistence Management Program in Alaska pursuant to Title VIII of

the Alaska National Interest Lands Conservation Act.

106

BLM staff must consult

with SOL to determine when the authorities discussed below apply.

a. FLPMA § 307

FLPMA Section 307(a)

107

authorizes BLM to “conduct investigations, studies, and

experiments, on [its] own initiative or in cooperation with others, involving the

management, protection, development, acquisition, and conveying of the public

lands.”

FLPMA Section 307(b) authorizes BLM to “enter into contracts and cooperative

agreements involving the management, protection, development, and sale of public

lands.”

108

The U.S. Court of Appeals for the Tenth Circuit has held that section

307(b) is an independent authority for allowing non-federal entities to carry out

management activities on BLM-managed public lands, upholding BLM’s use of a

memorandum of understanding under section 307(b) to allow the State of Wyoming

to operate elk feed grounds on BLM lands and rejecting the contention that BLM

was required to issue a separate lease or right-of-way.

109

BLM has also relied on

section 307(b) of FLPMA to enter into an assistance agreement with the Pueblo de

Cochiti for collaborative management of Kasha-Katuwe Tent Rocks National

Monument in New Mexico.

110

This assistance agreement carries out the direction

in the monument’s establishing proclamation to “manage the monument . . . in

close cooperation with the Pueblo de Cochiti.”

111

Although it does not appear that

either the proclamation or the assistance agreement requires the Pueblo’s

concurrence in land use planning decisions, the Pueblo’s Governor was included as

106

16 U.S.C. § 3101 et seq.

107

43 U.S.C. § 1737(a).

108

43 U.S.C. § 1737(b).

109

See Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1125-1128 (10th Cir. 2009); see also

Cal. Wilderness Coal., et al., 176 IBLA 93, 95 n.2 (2008) (“BLM’s authority to enter into

cooperative agreements with state and Federal agencies, such as the proposal by [the California

Department of Fish and Game] at issue here, for use and development of the public lands for

purposes similar or closely related to those of the Department, is granted by [FLPMA] sections

302(b) and 307(b)”).

110

Martin Nie, The Use of Co-Management and Protected Land-Use Designations to Protect

Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands, 48 N

AT. RESOUR. J. 586,

613-14 (2008); BLM Rio Puerco Field Office, Record of Decision for the Kasha-Katuwe Tent

Rocks National Monument Resource Management Plan (approved May 25, 2007) (Kasha-Katuwe

ROD) (available at

https://eplanning.blm.gov/public_projects/lup/73145/134985/165139/Rio_Puerco_Field_Office-

_Kasha_Katuwe_Tent_Rocks_RMP_ROD_CB.pdf).

111

Proclamation No. 7394, Establishment of the Kasha-Katuwe Tent Rocks National Monument,

66 Fed. Reg. 7343, 7344 (Jan. 22, 2001).

Final Report on Co-Stewardship Authorities

a concurring signatory in the record of decision for the monument’s most recent

land use plan.

112

b. FLPMA § 202(c)(9)

Many broadly applicable authorities already require BLM to consult or coordinate

with Tribes or to consider Tribal policies.

113

An additional authority uniquely

applicable to BLM is found in section 202(c)(9) of FLPMA, which requires BLM,

“to the extent consistent with the laws governing the administration of the public

lands, [to] coordinate [its] land use inventory, planning, and management activities

. . . with the land use planning and management programs . . . of or for Indian tribes

by, among other things, considering the policies of approved . . . tribal land resource

management programs”; to “keep apprised of . . . tribal land use plans”; and to

“assure that consideration is given to those . . . tribal plans that are germane in the

development of land use plans for public lands.”

114

Although these consultation

authorities do not by themselves provide concrete mechanisms for BLM to enter

into co-stewardship or Tribal stewardship arrangements, these authorities can play

an important role in developing such arrangements

c. ANILCA § 809

Section 809 of the Alaska National Interest Lands Conservation Act (ANILCA)

115

authorizes the Secretary to “enter into cooperative agreements or otherwise

cooperate with other Federal agencies, the State, [Alaska] Native Corporations,

other appropriate persons and organizations, and, acting through the Secretary of

State, other nations to effectuate the purposes and policies of Title VIII of”

ANILCA.

116

Title VIII of ANILCA, in turn, addresses the management of

subsistence use of federal lands in Alaska by rural residents, both Native and non-

Native.

117

The Department, on behalf of BLM, the National Park Service, and the U.S. Fish

and Wildlife Service, relied on Section 809 of ANILCA to enter into a

memorandum of agreement (MOA) with the Ahtna Inter-Tribal Resource

Commission, a body representing eight Tribes and two Alaska Native Corporations

112

See Kasha-Katuwe ROD at ROD-11.

113

See, e.g., 54 U.S.C. § 302706(b) (National Historic Preservation Act of 1966); 16 U.S.C. §

470ii(a) (Archaeological Resource Protection Act of 1979). See generally Exec. Order No. 13175

§ 5(d), 65 Fed. Reg. 67,249, 67,251 (Nov. 6, 2021) (“On issues relating to tribal self-government,

tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and,

where appropriate, use consensual mechanisms for developing regulations, including negotiated

rulemaking.” (emphasis added)); 512 DM 4 (Policy on Consultation with Indian Tribes and

Alaska Native Corporations); 512 DM 5 (Procedures for Consultation with Indian Tribes).

114

43 U.S.C. § 1712(c)(9).

115

Pub. L. 96-487, 94 Stat. 2371 (Dec. 2, 1980) (codified as amended at 16 U.S.C. § 3101 et seq.).

116

16 U.S.C. § 3119.

117

See, e.g., 16 U.S.C. § 3111(1) (declaring the congressional finding that “the continuation of the

opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-

Natives, on the [federal] lands and by Alaska Natives on Native lands is essential to Native

physical, economic, traditional, and cultural existence and to non-Native physical, economic,

traditional, and social existence”).

Final Report on Co-Stewardship Authorities

(ANCs) based in the Ahtna region of Alaska.

118

In November 2020, on the basis of

this MOA, the Federal Subsistence Board announced that it would “establish a

community harvest system for the Ahtna traditional communities of Cantwell,

Chistochina, Chitina, Copper Center, Gakona, Gulkana, Mentasta Lake, and

Tazlina for moose and caribou.”

119

d. Tribal Forest Protection Act

The Tribal Forest Protection Act (TFPA)

120

authorizes BLM to enter into

agreements with Tribes “to carry out . . . project[s] to protect Indian forest land or

rangeland (including . . . project[s] to restore Federal land that borders on or is

adjacent to Indian forest land or rangeland).”

121

The statute defines “Indian forest

land or rangeland” as “land that . . . is held in trust by, or with a restriction against

alienation by, the United States for an Indian tribe or a member of an Indian tribe,”

and is “forest land . . . ; or . . . has a cover of grasses, brush, or any similar

vegetation; or . . . formerly had a forest cover or vegetative cover that is capable of

restoration.”

122

Covered projects must meet certain criteria, including that the

BLM-managed lands involved must “border[] on or [be] adjacent to” the Tribe’s

trust lands; “pose[] a fire, disease, or other threat to” those trust lands or be “in need

of land restoration activities”; and “present[] or involve[] a feature or circumstance

unique to that Indian tribe (including treaty rights or biological, archaeological,

historical, or cultural circumstances).”

123

If BLM denies a Tribe’s request to enter

into an agreement, the TFPA requires the agency to provide the Tribe an

explanation for its decision, and to propose consultation with the Tribe.

124

Projects proposed by a Tribe under the TFPA may be carried out through a Tribal

Self-Governance Act (TSG) funding agreement.

125

Like the TSG, the TFPA may

extend to ANCs as well as federally recognized Tribes

126

– although the reference

to trust or restricted lands may mean that ANCs are, in many cases, practically

excluded from participation under the statute.

e. Good Neighbor Authority

The Good Neighbor Authority (GNA) allows BLM and the U.S. Forest Service to

authorize federally recognized Indian tribes to conduct certain projects on Federal

118

Memorandum of Agreement Between United States Department of the Interior and Ahtna

Inter-Tribal Resource Commission for a Demonstration Project for Cooperative Management of

Customary and Traditional Subsistence Uses in the Ahtna Region at 2-3 (2016) (available at

https://www.doi.gov/sites/doi.gov/files/uploads/ahtna_doi_moa_with_signature_pages_final.pdf

119

See Subsistence Management Regulations for Public Lands in Alaska – 2020-21 and 2021-22

Subsistence Taking of Wildlife Regulations, 85 Fed. Reg. 74,796, 74,798 (Nov. 23, 2020).

120

Pub. L. 108-278, 118 Stat. 868 (codified at 25 U.S.C. § 3101 et seq.).

121

25 U.S.C. § 3115a(b)(1).

122

25 U.S.C. § 3115a(a)(2).

123

25 U.S.C. § 3115a(c).

124

25 U.S.C. § 3115a(d).

125

See 25 U.S.C. § 3115b.

126

See 25 U.S.C. § 3115a(a)(3) (citing 25 U.S.C. § 5304).

Final Report on Co-Stewardship Authorities

lands in pursuit of specific land management goals.

127

The GNA allows the agency

to enter into cooperative agreements or contracts with states, counties, ANCs, or

Tribes to carry out “similar and complementary forest, rangeland, and watershed

restoration services . . . on Federal land, non-Federal land, and land owned by an

Indian tribe.”

128

Activities that can be included in a Good Neighbor agreement

include “activities to treat insect- and disease-infected trees” or “reduce hazardous

fuels,” or “any other activities to restore or improve forest, rangeland, and

watershed health, including fish and wildlife habitat,” but generally exclude

construction or repair of roads, parking areas, or public buildings or works.

129

Covered activities can be funded in part by proceeds from the sale of timber

removed as part of the agreement.

130

f. Stewardship Contracting Authority

BLM’s Stewardship Contracting authority allows BLM to enter into stewardship

contracting projects “via agreement or contract as appropriate” with public or

private entities to perform services to achieve land management goals for “the

public lands that meet local and rural community need.”

131

Land management goals that can be pursued under BLM’s Stewardship Contracting

authority include “[r]oad and trail maintenance or obliteration to restore or maintain

water quality,” improving “[s]oil productivity, habitat for wildlife and fisheries, or

other resource values,” “[s]etting of prescribed fires to improve the composition,

structure, condition, and health of stands or to improve wildlife habitat,”

“[r]emoving vegetation or other activities to promote healthy forest stands, reduce

fire hazards, or achieve other land management objectives,” “[w]atershed

restoration and maintenance,” “[r]estoration and maintenance of wildlife and fish,”

and “[c]ontrol of noxious and exotic weeds and reestablishing native plant

species.”

132

g. FLPMA § 501(a)

Subsection 501(a) of FLPMA allows BLM to issue rights-of-way for a variety of

purposes, and could potentially be used to authorize Tribes to carry out Tribal

activities on public lands.

133

While most of the enumerated purposes involve the

transportation or transmission of people, goods, energy, or communications across

the public lands, Subsection 501(a) includes a catch-all provision, which applies to

“such other necessary . . . systems or facilities which are in the public interest and

which require rights-of-way over, upon, under, or through [public] lands.”

134

Under

some circumstances, Tribal activities on public lands could qualify as, or require

127

16 U.S.C. § 2113a.

128

See 16 U.S.C. § 2113a(a)(1), (a)(5), (a)(6), (a)(7), (b)(1)(A).

129

16 U.S.C. § 2113a(a)(4).

130

16 U.S.C. § 2113a(b)(2)(C).

131

16 U.S.C. § 6591c(b).

132

16 U.S.C. § 6591c(c).

133

43 U.S.C. § 1761(a).

134

43 U.S.C. § 1761(a)(7).

Final Report on Co-Stewardship Authorities

the development of, a “system[] or facilit[y]”; in such a case, a ROW under

Subsection 501(a) could be a vehicle for facilitating these activities.

h. FLPMA § 302(b)

Subsection 302(b) of FLPMA allows BLM to “regulate, through easements,

permits, leases, [or] licenses, . . . the use, occupancy, and development of the public

lands, including, but not limited to, long-term leases to permit individuals to utilize

public lands for habitation, cultivation, and the development of small trade or

manufacturing concerns.”

135

BLM’s regulations interpret this provision as

complementing FLPMA Subsection 501(a) by providing that a lease, permit, or

easement may be issued under Subsection 302(b) for “[a]ny use not specifically

authorized under other laws or regulations and not specifically forbidden by law,”

including “residential, agricultural, industrial, and commercial [uses], and uses that

cannot be authorized under” Subsection 501(a).

136

Specifically, leases shall be used

“to authorize uses of public lands involving substantial construction, development,

or land improvement and the investment of large amounts of capital which are to

be amortized over time”; “[p]ermits shall be used to authorize uses of public lands

for not to exceed 3 years that involve either little or no land improvement,

construction, or investment, or investment which can be amortized within the term

of the permit”; and “[e]asements may be used to assure that uses of public lands are

compatible with non-Federal uses occurring on adjacent or nearby land.”

137

rights-of-way under Subsection 501(a), leases, permits, and easements under

Subsection 302(b) could in some circumstances be used to facilitate Tribal activities

on public lands.

i. Recreation and Public Purposes Act

The Recreation and Public Purposes Act (RPPA)

138

authorizes BLM to sell or lease

public land “to a State, Territory, county, municipality, or other State, Territorial,

or Federal instrumentality or political subdivision for any public purposes, or to a

nonprofit corporation or nonprofit association for any recreational or any public

purpose consistent with its articles of incorporation or other creating authority.”

139

Like a right-of-way, lease, permit, or easement under FLPMA, a lease under RPPA

could potentially be used to allow Tribal activities to occur on public lands. Such

an application of RPPA must assess whether a proposed use qualifies as a “public

purpose” under the RPPA. Moreover, because the RPPA does not include Tribes in

its list of potential beneficiaries, BLM staff must consult with SOL to determine

when to obtain an RPPA lease.

j. NATIVE Act

135

43 U.S.C. § 1732(b).

136

43 C.F.R. § 2920.1-1.

137

43 C.F.R. § 2920.1-1.

138

Pub. L. 83-387, 68 Stat. 173 (Jun. 4, 1954) (codified at 43 U.S.C. § 869 et seq.).

139

43 U.S.C. § 869(a).

Final Report on Co-Stewardship Authorities

The Native American Tourism and Improving Visitor Experience (NATIVE)

Act

140

is intended, among other things, to “increase coordination and collaboration

between Federal tourism assets to support Native American tourism” and to

“enhance and improve self-determination and self-governance capabilities in the

Native American community.”

141

Although the NATIVE Act focuses on tourism

planning rather than on land management, several provisions could authorize BLM

to undertake on-the-ground projects that would reflect Tribal priorities, and that

could be carried out by Tribes under the delegation authorities discussed above.

142

The NATIVE Act generally requires Federal agencies to “support the efforts of

Indian tribes . . . to identify and enhance or maintain traditions and cultural features

that are important to sustain the distinctiveness of the local Native American

community,”

143

which could be read to support actions by land managers to

accommodate and support cultural practices on federal lands. BLM staff must

consult SOL on a case-by-case basis to determine when the NATIVE Act may

authorize activities on public lands.

2. Bureau of Indian Affairs

The following provides a summary of authorities available to the Bureau of Indian

Affairs (BIA) that could support co-stewardship arrangements. BIA staff must

consult SOL to determine when the authorities discussed below apply.

a. 25 U.S.C. § 48

This statute authorizes the Secretary to give a Tribe supervisory authority over

persons engaged by the Secretary for the Tribe’s benefit.

b. Act of Sept. 1, 1937, ch. 897, § 9, 50 Stat. 900, 901

Formerly codified at 25 U.S.C. § 500h, this statute provides the Secretary

discretionary authority to grant to any corporation, association, or other

organization of Alaska Natives subject to such terms as she may impose, any or all

of the Secretary’s powers relating to the administration of the reindeer industry or

140

Pub. L. 114-221, 130 Stat. 847 (2016) (codified at 25 U.S.C. § 4351 et seq.)

141

25 U.S.C. § 4351.

142

See 25 U.S.C. §§ 4353(c)(1)(G)-(I), 4354(a). These provisions direct federal agencies to

“develop innovative visitor portals for parks, landmarks, heritage and cultural sites, and assets that

showcase and respect the diversity of the indigenous peoples of the United States”; “share local

Native American heritage through the development of bilingual interpretive and directional

signage that could include or incorporate English and the local Native American language or

languages”; “improve access to transportation programs related to Native American community

capacity building for tourism and trade”; “take actions that help empower Indian tribes . . . to

showcase the heritage, foods, traditions, history, and continuing vitality of Native American

communities”; “support the efforts of Indian tribes . . . to identify and enhance or maintain

traditions and cultural features that are important to sustain the distinctiveness of the local Native

American community” and “provide visitor experiences that are authentic and respectful”; and

“provide assistance to interpret the connections between the indigenous peoples of the United

States and the national identity of the United States.”

143

See 25 U.S.C. § 4354(a)(2).

Final Report on Co-Stewardship Authorities

business upon a finding that such grant is in the interests of Alaska Natives and

serves the purpose of the act.

c. American Indian Agricultural Resource Management Act

The American Indian Agricultural Resource Management Act (AIARMA)

144

contains provisions that allow the Federal government and Tribal governments to

exercise concurrent jurisdiction over trespass to agricultural lands,

145

and authorize

cooperative agreements between the Department of the Interior and Indian tribes

for certain purposes, including cooperative manpower and job training, the

development and publication of cooperative education and resource planning

materials, the improvement of land and facilities, and natural resource management

and development.

146

AIARMA also provides for Secretarial compliance with Tribal

laws pertaining to Indian agricultural lands (including laws regulating the

environment or historic or cultural preservation).

147

d. National Indian Forest Resources Management Act

The National Indian Forest Resources Management Act (NIFRMA)

148

authorizes

the Federal government and Tribal governments to exercise concurrent jurisdiction

over forest trespass matters,

149

and provides for Secretarial compliance with Tribal

laws pertaining to Indian forest lands (including laws regulating the environment

or historic or cultural preservation).

150

NIFRMA also authorizes cooperative

agreements between the Department of the Interior and Indian tribes for certain

purposes, including job training, and development and publication of cooperative

environmental education and natural resource planning materials, land and facility

improvements, including forestry and other natural resources protection, fire

protection, reforestation, and other activities related to land and natural resource

management.

151

Finally, NFIRMA directs the Secretary to establish a BIA

cooperative education program that provides financial assistance for tuition, books,

and fees under cooperative agreements with educational institutions and entails an

obligated service agreement with the BIA, an Indian tribe, or a tribal forestry-

related enterprise. That program is the Cooperative Education Program.

152

e. Indian Law Enforcement Reform Act

The Indian Law Enforcement Reform Act

153

authorizes the Secretary to enter into

agreements for the use of personnel or facilities of a Federal, tribal, State, or other

144

Pub. L. 103–177, 107 Stat. 2011 (1993) (codified at 25 U.S.C. § 3701 et seq.).

145

25 U.S.C. § 3713(c).

146

25 U.S.C. § 3733.

147

25 U.S.C. § 3712(b).

148

Pub. L. 101–630, tit. III, § 302, 104 Stat. 4532 (1990) (codified at 25 U.S.C. § 3101 et seq.).

149

25 U.S.C. § 3106(c).

150

25 U.S.C. § 3108.

151

25 U.S.C. § 3115.

152

25 U.S.C. § 3113(b).

153

Pub. L. 101–379, 104 Stat. 473 (1990) (codified as amended at 25 U.S.C. § 2801 et seq.).

Final Report on Co-Stewardship Authorities

governmental agency to aid in the enforcement in Indian country of Federal or tribal

laws.

154

3. Bureau of Ocean Energy Management & Bureau of Safety and

Environmental Enforcement

The Department’s offshore energy management responsibilities are managed by

several Bureaus, including the BOEM and the Bureau of Safety and Environmental

Enforcement (BSEE).

155

BOEM is responsible for the stewardship of Outer Continental Shelf (OCS) energy

and mineral resources, with a mission to manage the development of the OCS

energy and mineral resources in an environmentally and economically responsible

way. Pursuant to the Outer Continental Shelf Lands Act (OCSLA),

156

BOEM’s

duties include managing oil and gas resources as well as hard minerals and the

development of renewable energy on the OCS and conducting environmental

studies of the impacts of OCS development. Many Native Americans live near and

use areas where BOEM activities are proposed and conducted, and BOEM is

committed to maintaining open and transparent communications with Tribal

governments, Alaska Native Corporations, Native Hawaiian Organizations and

other indigenous communities through formal government-to-government

consultation and informal dialogue, collaboration, and engagement.

BSEE’s mission is to promote safety, protect the environment, and conserve

resources offshore through vigorous regulatory oversight and enforcement. It is the

lead Federal agency charged with improving safety and ensuring environmental

protection related to the offshore energy industry, primarily oil and natural gas, and

most recently renewable energy, on the OCS. It is BSEE’s stated policy to

recognized and fulfill its legal obligations to identify, protect, and conserve Tribal

trust resources; carry out its trust relationship with federally recognized Tribes; and

invite Tribes to consult on a government-to-government basis whenever BSEE

plans, or has actions with Tribal implications.

157

BOEM and BSEE staff must

consult SOL to determine when the authorities discussed below apply.

a. Outer Continental Shelf Lands Act

The Outer Continental Shelf Lands Act (OCSLA)

158

defines the OCS as all

submerged lands lying seaward of state coastal waters (3 miles offshore) which are

under U.S. jurisdiction. While the OCSLA does not expressly refer to “Indians” or

“Tribes,” it does authorize BOEM “to enter into agreements to carry out

environmental studies on the impacts of OCS development and to obtain

154

25 U.S.C. § 2804.

155

These offices include the Office of Natural Resource Revenue, which is responsible for

collecting and disbursing revenues from energy production on Federal and Indian lands and the

Outer Continental Shelf.

156

43 U.S.C. § 1331, et seq.

157

BSEE, Bureau Interim Directive 2022-047N (Part 570 – Tribal Engagement) (Oct. 27, 2022).

158

Pub. L. 83-212, 67 Stat. 462 (1953) (codified as amended at 43 U.S.C. § 1331 et seq.).

Final Report on Co-Stewardship Authorities

information for such studies from any person.”

159

BOEM’s environmental studies

program has funded environmental studies that have involved close partnership

with Tribes.

Some treaties protect Tribal uses of waters above the OCS in certain areas. In such

cases, treaty rights would implicate various provisions of OCSLA that require the

Secretary to consider how OCS activity affects ocean users.

160

In some cases, OCS

activity may also affect traditional ceremonies and practices that are not the subject

of treaty rights. BOEM units have worked with other Federal agencies to develop

a transferable best-practices method to identify areas of tribal use and significance

that could be impacted by offshore renewable energy siting.

161

Several OCSLA provisions refer to “local government,” including one that allows

the Secretary to make negotiated, noncompetitive agreements with local

governments for the use of OCS sand, gravel, and shell resources for use in certain

kinds of projects.

162

Though the regulations implementing this provision do not

specifically reference agreements with Tribes,

163

the provision is amenable to an

interpretation that permits such agreements with Tribes. Other OCSLA provisions

that refer to “local government” provide processes for input on OCS decision-

making that are described below in the context of the regulations implementing

them.

The Office of the Solicitor, Division of Minerals Resources (DMR) does not

consider the holding of an OCS lease or grant to be a form of stewardship or co-

stewardship contemplated by S.O. 3403 and therefore has not considered situations

in which a Tribe might hold an OCS lease or grant. However, instances may exist

in which Tribal businesses hold interests in an OCS lease as lessee or working

interest owner.

b. Regulations on Coordination & Consultation

Numerous BOEM regulations at 30 C.F.R. part 583 (Negotiated Noncompetitive

Agreements for the Use of Outer Continental Shelf Sand, Gravel, and/or Shell

Resources) and part 585 (Renewable Energy and Alternate Uses of Existing

Facilities on the Outer Continental Shelf) contain provisions pertaining to

consultation, coordination, or cooperation with affected Indian tribes. Part 583

requires that once BOEM determines that a project qualifies for a negotiated

agreement for sand, gravel, and/or shell resources, Part 583 requires BOEM to

coordinate with any potentially affected federally recognized Indian Tribes or

159

43 U.S.C. § 1346. See also S.O. 3342, § 3(e) (noting same).

160

See, e.g., 43 U.S.C. §§ 1337(p)(4), 1340(g), 1344(a).

161

OCS Study BOEM 2015-047, D. Ball, et al., A Guidance Document for Characterizing Tribal

Cultural Landscapes (Nov. 30, 2015).

162

43 U.S.C. § 1337(k)(2).

163

See 30 C.F.R. part 583.

Final Report on Co-Stewardship Authorities

Alaska Native Corporations in evaluating whether to enter a negotiated

noncompetitive agreement.

164

BOEM’s renewable energy regulations at 30 C.F.R. Part 585 set forth numerous

requirements for coordination and consultation with Tribes in connection with the

issuance and administration of leases, rights-of-way, and easements. BOEM will

provide for coordination and consultation with the Governor of any State, the

executive of any local government, and the executive of any Indian Tribe that may

be affected by a lease, easement, or right-of-way, and BOEM may further invite the

representative of an affected Indian Tribe to join in establishing a task force or other

joint planning or coordination agreement in carrying out responsibilities under Part

585.

165

BOEM will coordinate and consult with the Governor of any affected State,

the executive of any affected local government, and any affected Indian Tribe prior

to issuing OCS renewable energy leases.

166

BOEM will identify areas for

environmental analysis and consideration for OCS renewable energy leasing in

consultation with any affected Indian Tribes.

167

BOEM will coordinate and consult

with affected Indian Tribes in the review of non-competitive lease requests.

168

BOEM will coordinate and consult with any affected Indian Tribes as appropriate

when issuing leases, rights-of-way grants, and right-of-use-and-easement grants on

the OCS to a Federal agency or a State for renewable energy research activities.

169

BOEM will coordinate and consult with any affected Indian Tribes when reviewing

a lessee’s Site Assessment Plan and will further provide any affected Tribe relevant

non-proprietary data and information pertaining to the proposed activities.

170

BOEM will coordinate and consult with any affected Indian Tribes as appropriate

in reviewing a lessee’s construction and operations plan and will further provide

any affected Indian Tribe relevant nonproprietary data and information pertaining

to the proposed activities.

171

BOEM will coordinate and consult with any affected

Indian Tribes in reviewing a general activities plan and will provide affected Indian

Tribes relevant non-proprietary data and information pertaining to the proposed

activities.

172

Finally, in connection with decommissioning activities for facilities

authorized under a site assessment plan, construction and operations plan, or

general activities plan, BOEM must acquire from a lessee documentation of any

coordination efforts the lessee has made with the affected Tribal governments.

173

164

30 C.F.R. § 583.310(b).

165

30 C.F.R. § 585.102(e).

166

30 C.F.R. § 585.203.

167

30 C.F.R. § 585.211(b).

168

30 C.F.R. § 585.231(e).

169

30 C.F.R. § 585.238(b).

170

30 C.F.R. § 585.613(c).

171

30 C.F.R. § 585.628(d).

172

30 C.F.R. § 585.648(c).

173

30 C.F.R. § 585.902(f).

Final Report on Co-Stewardship Authorities

c. Opportunities for Collaboration

Other BOEM and BSEE regulations include general “cooperate and consult”

provisions which, though they do not expressly reference Tribes, may be broadly

read as doing so.

Part 250 sets forth BSEE’s regulation of the offshore program that govern oil, gas,

and sulfur exploration, development, and production operations on the OCS.

174

regulating all operations under a lease, right-of-use and easement, or right-of-way,

the BSEE Director will cooperate and consult with affected States, local

governments, other interested parties, and relevant Federal agencies.

175

In the event

of a lessee fails to control and remove pollution occurring as a result of operations

conducted by or on behalf of the lessee and the pollution damages or threatens to

damage life (including fish and other aquatic life), property, any mineral deposits,

or the marine, coastal, or human environment, the BSEE Director, in cooperation

with other appropriate agencies of Federal, State, and local governments shall have

the right to control and remove the pollution at the lessee's expense.

176

considering an application for a grant of a pipeline right-of-way, a Regional

Supervisor shall prepare an environmental analysis in accordance with applicable

policies and guidelines.

177

To aid in the evaluation and determinations, the Regional

Solicitor may request and consider views and recommendations of appropriate

Federal agencies, hold public meetings after appropriate notice, and consult, as

appropriate, with State agencies, organizations, industries, and individuals, and

must give consideration to any recommendation by the intergovernmental planning

program, or similar process, for the assessment and management of OCS oil and

gas transportation.

178

Part 550, which regulates the BOEM Offshore program governing oil, gas, and

sulfur exploration, development, and production operations on the OCS, requires

BOEM to regulate all activities under a lease, a right-of-use and easement, or a

right-of-way to ensure cooperation and consultation with affected States, local

governments, and “other interested parties,” including “relevant Federal

agencies.”

179

Part 556 establishes the procedures under which BOEM will exercise the authority

to administer a leasing program for oil and gas, and sulfur. After a development

and production plan or a development operations and coordination document is

deemed submitted, the Regional Supervisor will make a public information copy

available for comments and recommendations. must solicit comments from

affected States, local governments, and the public.

180

174

30 C.F.R. § 250.102.

175

30 C.F.R. § 250.106(d).

176

30 C.F.R. § 250.300(a)(2).

177

30 C.F.R. § 250.1016(a).

178

Id.

179

30 C.F.R. § 550.120(d).

180

30 C.F.R. § 550.268.

Final Report on Co-Stewardship Authorities

Part 552 provides BOEM’s procedures and requirements for the submission of oil

and gas data and information resulting from exploration, development, and

production operations on the OCS to the BOEM Director.

181

The Director as soon

as practicable after analysis, interpretation, and compilation of oil and gas data and

information developed by BOEM or furnished by lessees, permittees, or other

government agencies, shall make available to affected States and, upon request, any

affected local government, a summary report of data and information to assist them

in planning for the onshore impacts of potential OCS oil and gas development.

182

The Director shall also consult with affected States and other interested parties on

the nature, scope, content and timing of the summary report.

183

Part 556 establishes BOEM’s procedures under which the Secretary will exercise

the authority to administer a leasing program for oil and gas, and sulfur.

184

OCSLA

requires the Secretary to prepare an oil and gas leasing program that consists of a

five-year schedule of proposed lease sales to best meet national energy needs,

showing the size, timing, and location of leasing activity as precisely as possible.

185

In starting the five-year program preparation process, BOEM invites and considers

nominations for any areas to be included or excluded from leasing by inviting and

considering suggestions and information from local governments and other

interested parties.

186

Once BOEM publishes the proposed five-year program in the

Federal Register, local governments can review and provide comment on the

proposed program.

187

In order to establish information needed for the assessment

and management of impacts to the environment by OCS oil and gas or other mineral

activities in a region, the BOEM Director will conduct studies of areas included in

any oil and gas lease sale or other lease, which will be planned and carried out in

cooperation with affected States and interested parties.

188

Part 553 establishes BOEM’s requirements for demonstrating Oil Spill Financial

Responsibility for covered offshore facilities and sets forth the procedures for

claims and the limit of liability for offshore facilities under the Oil Pollution Act of

1990.

189

It defines “claimant” to mean “any person or government” presenting a

claim under the Act.

190

4. Bureau of Reclamation

The Bureau of Reclamation (BOR) manages, develops, and protects water and

related resources in an environmentally and economically sound manner in the

interest of the American public. It is the Nation’s largest wholesale water supplier.

181

30 C.F.R. § 552.1.

182

30 C.F.R. § 552.4(a).

183

Id.

184

30 C.F.R. § 556.101.

185

30 C.F.R. § 556.200 (citing 43 U.S.C. § 1344(a)).

186

30 C.F.R. § 556.202.

187

30 C.F.R. § 556.204.

188

30 C.F.R. § 556.1300(a)-(b).

189

30 C.F.R. § 553.1 (citing 33 U.S.C. § 2701 et seq.).

190

30 C.F.R. § 553.3.

Final Report on Co-Stewardship Authorities

Under the Reclamation Act of 1902,

191

BOR’s work first focused on the

construction of dams and facilities to store and convey water, later expanding to

include hydropower production, flood control, municipal and industrial water,

recreation, and fish and wildlife enhancement. Areas operated by BOR often

include important cultural and natural resources and may provide unique

educational and interpretive opportunities for collaborative and cooperative

arrangements with Tribes.

The Office of the Solicitor Division of Water Resources has identified a number of

authorities that may support co-stewardship activities with Tribes. BOR staff must

consult with SOL to determine when the authorities discussed below apply.

a. 43 U.S.C. § 373d

This statute authorizes the Commissioner of the BOR to enter into grants and

cooperative agreements with any Indian tribe, institution of higher education,

national Indian organization, or tribal organization to promote the development,

management, and protection of their water resources.

The BOR Native American Affairs Program (NAAP) mission is to ensure federally

recognized Indian tribes have the opportunity to participate in BOR programs in a

way that fulfills the Federal responsibility toward tribes, respects tribal sovereignty,

and strengthens the unique government-to-government relationship.

The Bureau of Reclamation has authorities, in addition to tribal funding programs

authorized by 43 U.S.C. § 373d, under its WaterSMART programs that are

available for financial assistance to a variety of entities, including tribes.

Reclamation staff should consult with SOL to determine when the authorities

discussed below apply to review eligibility requirements.

b. 43 U.S.C. § 2901-2907

Sections 8001 – 8007 of the John D. Dingell, Jr. Conservation, Management, and

Recreation Act of 2019, Title VIII—Water and Power, Subtitle A—Reclamation

Title Transfer, 43 U.S.C. § 2901-2907, authorize BOR to transfer title of project

facilities to qualifying entities, including tribes.

c. BOR Project Specific Authorities

Because BOR does not have an organic act, each project is authorized by an act of

Congress. Project-specific authorities can provide unique opportunities for

collaborative and cooperative stewardship of BOR-owned facilities.

d. Indian Water Rights Settlements

Federal Indian water right settlements authorized by acts of Congress often provide

collaborative and cooperative stewardship opportunities. Each authorization can

191

Pub. L. 57-161, ch. 1093, 32 Stat. 388 (1902) (codified as amended and supplemented at 43

U.S.C. § 371 et seq.).

Final Report on Co-Stewardship Authorities

provide unique opportunities for stewardship activities with Federally recognized

tribes.

e. Reclamation Manual on Coordination & Consultation

BOR’s Manual recognizes the “unique legal and political relationship with Indian

tribes as provided for in the Constitution, treaties, and other Federal laws and

policies.”

192

BOR’s policy recognizes the federal trust responsibility and

government-to-government nature of the relationship between Federally

recognized Tribes and the United States generally, and the Department of the

Interior specifically.

Among activities specific to BOR’s commitment to matters related to co-

stewardship priorities, BOR’s policy is to actively support and participate in the

Department’s Indian water rights negotiation and implementation activities; tribal

trust and the Endangered Species Act; and ISDEAA. In this context, BOR

Reclamation generally must rely upon specific congressional federal project or

Indian water rights settlement authorizations to create opportunities for stewardship

activities with Federally recognized Tribes.

5. Fish & Wildlife Service

With 565 national wildlife refuges, 38 wetland management districts, and 5 national

monuments, the National Wildlife Refuge System (NWRS) manages more than 850

million acres of lands and waters. The Fish and Wildlife Service (FWS) manages

the NWRS pursuant to various laws, including the National Wildlife Refuge

System Administration Act of 1966, as amended by the National Wildlife System

Improvement Act of 1997,

193

and, for refuges in Alaska, the Alaska National

Interest Lands Conservation Act of 1980, as amended.

194

Under the Administration

Act, the “mission of the System is to administer a national network of lands and

waters for conservation, management, and where appropriate, restoration of the

fish, wildlife, and plant resources and their habitats within the United States for the

benefit of present and future generations of Americans.”

195

Each refuge is managed

to fulfill the mission of the NWRS, the specific purpose for which each refuge was

established, and for compatible wildlife-dependent recreation.

196

The following authorities provide support for collaborative and cooperative co-

stewardship arrangements between FWS and Tribes. FWS staff must consult SOL

to determine when the authorities discussed below apply.

192

See Reclamation Manual, Policy NIA P10, Indian Policy of the Bureau of Reclamation (Jul. 24,

2014, rev. Sep. 24, 2020).

193

16 U.S.C. § 668dd-668ee.

194

16 U.S.C. §§ 3101-3233.

195

16 U.S.C. § 668dd(a)(2).

196

16 U.S.C. § 668dd(a)(3).

Final Report on Co-Stewardship Authorities

a. Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Act (FWCA)

197

directs the Service to

investigate and report on proposed Federal actions that affect any stream or other

body of water and to provide recommendations to minimize impacts on fish and

wildlife resources. Among other things, the FWCA authorizes the Secretary to enter

into any contract or cooperative agreement with a federally recognized Indian tribe

to assist with the control and management of an invasive species.

198

It also grants

FWS broad authority to enter cooperative agreements for the conservation of all

species of fish and wildlife, and applies that authority in directing the FWS to

collaborate with federally Recognized Indian Tribes in the management of National

Wildlife Refuges.

b. Endangered Species Act

S.O. 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,

and the Endangered Species Act (Jun. 5, 1997), jointly issued with the Secretary of

Commerce, clarifies the responsibilities of Bureaus when they take actions under

the authority of the Endangered Species Act (ESA)

199

and its implementing

regulations that affect, or may affect, Indian lands, tribal trust resources, or the

exercise of American Indian tribal rights, as defined in the Order. S.O. 3225,

Endangered Species Act and Subsistence Uses in Alaska (Supplement to Secretarial

Order 3206) (Jan. 19, 2001), supplements S.O. 3206 by defining its application in

Alaska; establishing a consultation framework relative to the subsistence

exemption in Section 10(e) of the ESA; and reiterating government-to-government

consultation requirements relative to overall ESA implementation in Alaska.

S.O. 3206 defines “tribal trust resources” to mean those natural resources, either on

or off Indian lands, retained by, or reserved by or for Indian tribes through treaties,

statutes, judicial decisions, and executive orders, which are protected by a fiduciary

obligation on the part of the United States. Pursuant to S.O. 3206, the Departments

“shall consider[] the value that tribal traditional knowledge provides to tribal and

federal land management decision-making and tribal resource management activities.”

S.O. 3206 acknowledges that “that Indian cultures, religions, and spirituality often

involve ceremonial and medicinal uses of plants, animals, and specific geographic

places.” Because of the unique government-to-government relationship between Tribes

and the United States, the Department and affected Indian tribes “need to establish and

maintain effective working relationships and mutual partnerships to promote the

conservation of sensitive species (including candidate, proposed and listed species) and

the health of ecosystems upon which they depend. Such relationships should focus on

cooperative assistance, consultation, the sharing of information, and the creation of

government-to-government partnerships to promote healthy ecosystems.”

S.O. 3206

directs FWS (and the National Oceanic and Atmospheric Administration) to

collaborate with Tribes on the ESA, including but not limited to, candidate

197

Act of Mar. 10, 1934, ch. 55, 48 Stat. 401 (codified as amended at 16 U.S.C. § 661-666e).

198

16 U.S.C. § 666c-1(l).

199

16 U.S.C. § 1531 et seq.

Final Report on Co-Stewardship Authorities

conservation, the listing process, Section 7 consultation, habitat conservation

planning, recovery, and enforcement.

c. National Wildlife Refuge System Administration Act

The National Wildlife Refuge System Administration Act (NWRSA)

200

provides

authority, guidelines and directives for FWS to improve the National Wildlife

Refuge System; administers a national network of lands and waters for the

conservation, management, and restoration of fish, wildlife and plant resources and

habitat; ensures the biological integrity, diversity, and environmental health of

refuges is maintained; defines compatible wildlife-dependent recreation as

appropriate general public use of refuges; establishes hunting, fishing, wildlife

observation and photography, and environmental education as priority uses;

establish a formal process for determining compatible uses of refuges; and provide

for public involvement in developing comprehensive conservation plans for

refuges.

d. The Fish and Wildlife Act

The Fish and Wildlife Act of 1956 (FWA)

201

authorizes the Secretary, as delegated

to the FWS, to consider and determine the policies and procedures that are

necessary and desirable to carry out the laws relating to fish and wildlife, and also

to take such steps as may be required for the development, advancement,

management, conservation, and protection of fish and wildlife resources. This

broad authority can be utilized to cooperate with Tribes in managing resources

under the FWS’s jurisdiction.

202

e. Alaska National Interest Lands Conservation Act

The Alaska National Interest Lands Conservation Act (ANILCA)

203

provides for

the designation and conservation of certain public lands in Alaska, including units

of the National Wildlife Refuge System, and for the continuing subsistence needs

of the Alaska Native people. ANILCA directs the FWS to be the lead Federal

agency in managing subsistence for Native Tribes on federal lands in Alaska.

6. National Park Service

The National Park Service (NPS) manages units of the National Park System

pursuant to what is commonly known as the NPS Organic Act.

204

The Organic Act

directs the Secretary to “promote and regulate the use of the National Park System

by means and measures that conform to the fundamental purpose of the System

units, which purpose is to conserve the scenery, natural and historic objects, and

wildlife in the System units and to provide for the enjoyment of the scenery, natural

200

16 U.S.C. § 668dd et seq.

201

Act of Aug. 8, 1956, ch. 1036, 70 Stat. 1122 (codified as amended at 16 U.S.C. § 742f et seq.).

202

16 U.S.C. § 742f(a).

203

16 U.S.C. § 3101 et seq.

204

Act of August 25, 1916, ch. 408, 39 Stat. 535 (codified as amended in various sections of Title

54 of the United States Code).

Final Report on Co-Stewardship Authorities

and historic objects, and wildlife in such manner and by such means as will leave

them unimpaired for the enjoyment of future generations.”

205

Put another way, the

fundamental purpose of the National Park System is conservation of park resources

and values, and the NPS’s principal responsibility is to manage park units to avoid

impairment of those resources and values.

206

NPS also has specific and unique

responsibilities associated with the Federal Subsistence Management Program in

Alaska pursuant to Title VIII of the Alaska National Interest Lands Conservation

Act (ANILCA).

207

NPS staff must consult SOL to determine when the authorities

discussed below apply.

a. General Authorities

The following general authorities can support collaborative and cooperative

stewardship arrangements with Tribes.

i. General Agreements

NPS may enter into memoranda of agreement and understanding, or similar

vehicles, to document an ongoing relationship with various non-Federal entities.

General agreements will not involve an exchange of value or entail legal liability.

Examples of such agreements include an agreement between the Havasupai Tribe

and Grand Canyon National Park for use and occupancy of Supai Camp on the

South Rim. It also includes a Memorandum of Cooperation between the Chickasaw

Nation and the Chickasaw National Recreation Area for collaborating on

interpretation, cultural and natural resource management, and infrastructure

development/maintenance.

ii. Cooperative Agreements

A variety of authorities

208

authorize NPS to enter into cooperative agreements

with most entities for natural resource protection, research, and protection of

historic or archaeological sites. One example includes work by the Navajo Nation

to document its archaeological management practices with Chaco Culture

National Historical Park for sites located near the unit.

iii. Commercial Service Opportunities

Many commercial opportunities for cooperation and collaboration exist under

existing authorities. Examples of such current activities include a marina

concession at Bighorn Canyon National Recreation Area operated by the Crow

Tribe pursuant to 54 U.S.C. § 101913; a lease by the Navajo Nation of a former

concession facility at Canyon de Chelly National Monument pursuant to 54

U.S.C. § 102102; and authorized commercial activities such as fee-based guided

tours or interpretive programs pursuant to 54 U.S.C. § 101925. In addition, NPS

205

54 U.S.C. § 100101(a).

206

See generally NPS, Management Policies 2006, § 1.4 (“Park Management”).

207

16 U.S.C. § 3101 et seq.

208

See, e.g., 31 U.S.C. § 6305; 54 U.S.C. §§ 100703, 101702, 200103, 320102.

Final Report on Co-Stewardship Authorities

administers annual grant programs available to a variety of entities, including

Indian tribes and Native Hawaiian Organizations for tribal cultural heritage

protection pursuant to 54 U.S.C. §§ 302901 and 302906.

b. Specific Authorities

In addition to the general authorities described above, the following specific

authorities may also support collaborative and cooperative stewardship

arrangements with Tribes.

i. Park-Specific Statutory Authorities

Many park-specific authorities contain opportunities for co-stewardship. For

example, the Oglala Sioux Tribe has operated concessions in Badlands National

Park’s South Unit based on requirements in the South Unit’s enabling legislation.

NPS staff should consult with attorneys in the relevant SOL office on the best

resources for further information on such opportunities.

ii. Grant Opportunities for Historic Preservation

In 2014, Congress passed legislation authorizing the Secretary to administer a

program of direct grants to Indian tribes and Native Hawaiian Organizations for

purposes of preserving historic properties.

209

iii. NATIVE Act

The Native American Tourism and Improving Visitor Experience (NATIVE)

Act

210

requires coordination with Indian tribes and Native Hawaiian Organizations

in tourism-related planning and projects. The Act is intended, among other

purposes, to “increase coordination and collaboration between Federal tourism

assets to support Native American tourism” and to “enhance and improve self-

determination and self-governance capabilities in the Native American

community.”

211

Although the NATIVE Act focuses on tourism planning, rather

than on land management, several provisions could authorize NPS to undertake on-

the-ground projects that would reflect Tribal priorities.

212

The Act’s provision

requiring agencies to “support the efforts of Indian tribes . . . to identify and

enhance or maintain traditions and cultural features that are important to sustain the

distinctiveness of the local Native American community”

213

could potentially be

read as a broad mandate for land managers to accommodate and support cultural

practices on federal lands.

209

Pub. L. 113-287, 128 Stat. 3199 (codified 54 U.S.C. § 302701 et seq.).

210

Pub. L. 114–221, 130 Stat. 847 (codified at 25 U.S.C. §§ 4351-4355).

211

25 U.S.C. § 4351.

212

See supra, note 142 (citing 25 U.S.C. §§ 4353(c)(1)(G)-(I), 4354(a)).

213

See 25 U.S.C. § 4354(a)(2).

Final Report on Co-Stewardship Authorities

iv. Tribal Plant Gathering

NPS regulations at 36 CFR § 2.6 permit NPS to enter into agreements with Indian

tribes for traditional gathering of plants or plant parts on NPS lands.

c. Other Opportunities

i. NPS Management Policies

The formal relationship between NPS and tribes is augmented by the historical,

cultural, and spiritual relationships that Tribes have with park lands and

resources.

214

As the ancestral homelands of many Tribes, parks protect resources,

sites, and vistas that are highly significant for them.

215

For this reason, NPS will

pursue an open, collaborative relationship with American Indian tribes to help

Tribes maintain their cultural and spiritual practices and enhance NPS’s

understanding of the history and significance of sites and resources in the

parks.

216

NPS acknowledges that activities carried out on park lands may sometimes affect

tribal trust resources, which are those natural resources reserved by or for Indian

tribes through treaties, statutes, judicial decisions, and executive orders, and are

protected by a fiduciary obligation on the part of the United States.

217

accordance with the government-to-government relationship and mutually

established protocols, the Service will interact directly with tribal governments

regarding the potential impacts of proposed NPS activities on Tribes and trust

resources.

218

It is NPS policy to pursue opportunities to improve natural resource management

within parks and across administrative boundaries by pursuing cooperative

conservation with public agencies, appropriate representatives of Tribes and other

traditionally associated peoples in accordance with Executive Order 13352

(Facilitation of Cooperative Conservation).

219

It is also NPS policy to develop and

implement its programs in a manner that reflects knowledge of and respect for the

cultures of Tribes with ties to particular resources in parks.

220

NPS will regularly

and actively consult with Tribal governments and other traditionally associated

groups regarding planning, management, and operational decisions that affect

subsistence activities, sacred materials or places, or other resources with which

they are historically associated. Information about the outcome of these

consultations will be made available to those consulted.

221

214

NPS, Management Policies 2006, § 1.11.

215

NPS, Management Policies 2006, § 1.11.

216

NPS, Management Policies 2006, § 1.11.

217

NPS, Management Policies 2006, § 1.11.3.

218

NPS, Management Policies 2006, § 1.11.3.

219

NPS, Management Policies 2006, § 4.1.4.

220

NPS, Management Policies 2006, § 8.5.

221

NPS, Management Policies 2006, § 8.5.

Final Report on Co-Stewardship Authorities

Various policies permit NPS to coordinate with Indian tribes and Native Hawaiian

Organizations and allow access to sacred sites.

222

NPS will protect and maintain

American Indian access rights and protection of sites associated with tribes

according to applicable laws and policies. The American Indian Religious

Freedom Act reaffirms the First Amendment rights of Native Americans to access

national park system lands for the exercise of their traditional religious practices.

American Indians will be permitted access within wilderness for sacred or

religious purposes consistent with the intent of the American Indian Religious

Freedom Act and other applicable authorities provided by federal statues and

executive orders.

223

ii. Treaty Rights

Treaty rights may provide an additional opportunity for collaborative and

cooperative co-stewardship arrangements between NPS and Tribes. For example,

the Red Cliff Band of Chippewa/Ojibwe/Anishinaabe are currently negotiating an

agreement with Apostle Islands National Seashore to conduct guided tours

pursuant to their reserved treaty rights. Treaty rights vary by tribe and location,

and opportunities should be explored in consultation with the Regional Solicitor’s

office.

7. Office of Natural Resources Revenue

The following Office of Natural Resources Revenue (ONRR) authorities may be

relevant for potential stewardship arrangements. ONRR staff must consult with

attorneys in their Regional Solicitor’s Office to determine when a proposed

arrangement implicates any of the authorities discussed below.

a. Federal Oil and Gas Royalty Management Act of 1982

The Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA)

224

directs

the Secretary to establish a comprehensive system for collection, accounting,

auditing, and disbursement of royalties from development of Federal and Indian

oil and gas. Title II, Section 202 of FOGRMA authorizes the Secretary to enter

into cooperative agreements with Tribes to carry out those functions in

cooperation with the Secretary for Indian oil and gas under the jurisdiction of the

Tribe.

b. Pub. L. No. 102-154

Public Law No. 102-154 authorizes the Secretary to enter into cooperative

agreements with Tribes to carry out inspection, auditing, investigation or

enforcement activities in cooperation with the Secretary for royalties from coal,

solid mineral, and geothermal leases on Indian lands.

225

222

See NPS, Management Policies 2006, § 5.3.5.3.2.

223

NPS, Management Policies 2006, § 6.3.12.

224

Codified at 30 U.S.C. § 1732.

225

105 Stat. 1001 (1991) (codified at 30 U.S.C. § 196).

Final Report on Co-Stewardship Authorities

8. Office of Surface Mining Reclamation & Enforcement

The following Office of Surface Mining Reclamation and Enforcement (OSMRE)

authorities may be relevant for potential stewardship arrangements. OSMRE staff

must consult SOL to determine when the authorities discussed below apply.

a. Surface Mining Control and Reclamation Act of 1977

The Surface Mining Control and Reclamation Act of 1977 (SMCRA) is not a public

lands or resource management statute, and the Office of Surface Mining

Reclamation and Enforcement (OSMRE), which administers SMCRA, is not a land

management agency. Under SMCRA, lands within Tribal reservations are not

“Federal lands” as that term is defined in SMCRA (although there is some federal

coal in some Indian lands, which BLM leases).

OSMRE does, however, have a Federal Indian lands program, and Tribes may

attain primacy from the Secretary to be the primary regulatory authority, with

oversight from OSMRE, for regulating surface coal mining operations and

abandoned mine land reclamation on Indian lands, which SMCRA defines as “all

lands, including mineral interests, within the exterior boundaries of any Federal

Indian reservation, notwithstanding the issuance of any patent, and including rights-

of-way, and all lands including mineral interests held in trust for or supervised by

an Indian tribe.”

226

b. Consultation Regulations and Policies

The following authorities require OSMRE to consult or coordinate with Tribes

based on the specific subject matter. OSMRE, Directive REG 18, “Tribal

Consultation and Protection of Tribal Trust Resources” (June 26, 2013) sets forth

OSMRE’s policies and procedures for ensuring that its actions having tribal

implications are consistent with applicable Executive Orders on Tribal

consultation.

227

In addition, in areas where OSMRE is the primary SMCRA regulatory authority on

Indian lands, Federal regulations at 30 C.F.R. Part 750 require that OSMRE consult

with the BIA and the affected Tribe(s) at various stages of the permitting,

inspection, and enforcement process.

228

The Federal regulations at 30 C.F.R. Part

755 also provide that any Indian tribe can request that the Secretary, acting through

OSMRE, enter into a Tribal-Federal intergovernmental agreement that would allow

the Tribe to assist OSMRE and recommend specific actions on permits, permit

applications, inspection and enforcement activities, and bond release or forfeiture

decision as well as providing funding for Tribal employees.

For abandoned mine lands (AML) reclamation activities that OSMRE performs on

Indian lands that are not subject to an approved Tribal Reclamation Program,

226

30 U.S.C. § 1291(9).

227

Available at https://www.osmre.gov/sites/default/files/inline-files/directive979.pdf.

228

See, e.g., 30 C.F.R. §§ 750.6(a)(4), 750.12(c)(3)(iii), and 750.18(d) & (f).

Final Report on Co-Stewardship Authorities

OSMRE is required to consult with BIA and the affected tribe before undertaking

an AML reclamation project.

229

9. U.S. Geological Survey

The United States Geological Survey (USGS) is not responsible for regulations or

land management. However, it provides impartial information on the health of

ecosystems and the environment, the natural hazards that threaten us, the natural

resources

230

we rely on, the negative effects of climate and land-use change, and

the core science systems that help us provide timely, relevant, and usable

information. USGS recognizes the importance of Native knowledge as a

complement to the USGS mission to better understand the Earth and its systems.

Collaboration combining tribal traditional ecological knowledge with empirical

studies allows the USGS and Tribal governments, organizations, and peoples to

increase their mutual understanding of the increasing challenges facing our natural

world.

USGS engages in collaborative and cooperative activities with Tribes and Tribal

organizations, as well with the Bureau of Indian Affairs and other federal entities.

This involves a variety of work touching on a range of topics including wildlife

diseases, water availability, contaminants, energy and minerals, invasive and

endangered species, and other impacts that human activity are having on our planet.

It also includes field and laboratory studies, training, and internships. USGS staff

must consult SOL to determine when the authorities discussed below apply.

a. Indian Water Rights Projects

USGS has cooperated with Tribes for many decades to address water resource

issues such as flooding, drought, water supply, Indian Water Rights, and other

needs using the appropriated Cooperative Matching Funds (CMF), sometimes in

conjunction with other available USGS program funds. USGS is a leader in

establishing flood monitoring systems, groundwater modeling to assess water

resource availability, water-quality studies and performs other projects that are

tailored for local tribal needs. For example, the Sac and Fox Tribe of the Mississippi

in Iowa (Meskwaki Nation) has developed a series of projects with the USGS over

several years including a long-term data collection that has developed into a flood

monitoring system. The USGS has also developed a hydrogeologic framework and

water budget for an important drinking water aquifer project for the Cheyenne and

Arapaho Tribes. Using directed CMF funding, a number of USGS projects were

completed with Tribes and other Federal partners (Bureau of Reclamation and

Bureau of Indian Affairs), in conjunction with and oversight by the Secretary’s

Indian Water Rights Office. These projects are generally matched with funds from

the local partner Tribes. For example, the Anza/Cahuilla Indian Water Rights

project (CA) developed regular meetings with the two tribes, along with the BIA,

229

30 C.F.R. § 886.27(c).

230

Although it relies on the term “resources,” the USGS, through its interdisciplinary research,

acknowledges the interconnectedness of the Earth and all the life forms that live upon it.

Final Report on Co-Stewardship Authorities

BOR and USGS, resulting in a 4-year accelerated timeline for a hydrologic study

into complex groundwater flows with surface-water interaction and modeling.

b. Consultation

The USGS Survey Manual (SM) establishes the policies and initiatives which

govern the actions, conduct, and procedures of USGS. SM chapter 500.6, American

Indian and Alaska Native Tribal Relations (Sep. 14, 2020), clarifies and describes

USGS requirements and responsibilities regarding compliance with applicable

statutes, regulations, Executive and Secretarial Orders and Memoranda, and

Departmental policies relevant to the relationships between the USGS and

American Indian tribes, Alaska Native tribes, and Alaska Native Corporations.

Final Report on Co-Stewardship Authorities

[This page intentionally blank.]

Final Report on Co-Stewardship Authorities

IV. TRIBAL STEWARDSHIP

Section 6 of S.O. 3403 on Tribal stewardship of lands and waters directs Bureaus

to support consolidation of Tribal landholdings within reservations, including

through Tribal acquisition of Federal lands and private inholdings. It further directs

Bureaus to facilitate Tribal requests to have lands placed in trust status, including

for conservation, protection of sacred sites, cultural or religious use, or exercise of

subsistence of treaty reserved rights. The following authorities can support Tribal

stewardship pursuant to Section 6 of S.O. 3403. Their applicability must be

determined, however, based on the facts of each case. Bureaus must consult SOL

to determine when the authorities discussed below apply.

A. Indian Reorganization Act

The overriding purpose of the Indian Reorganization Act of 1934 (IRA)

231

was to

end the failed federal policies of allotment and assimilation, establish means for

Tribes to assume a greater degree of political and economic self-determination,

232

and give Tribes “control of their own affairs and of their own property.”

233

The IRA

has several provisions of potential relevance for Tribal stewardship.

1. Acquisition of Land in Trust

IRA Section 5 authorizes the Secretary in her discretion to acquire “any interest in

lands, water rights or surface rights to lands, within or without existing

reservations,” including trust or otherwise restricted allotments, “for the purpose of

providing land for Indians.”

234

Title to any land acquired under Section 5 shall be

taken in the name of the United States in trust for the Tribe for which it is acquired.

Trust lands may be acquired through purchase, relinquishment, gift, exchange, or

assignment. The Department’s regulations for implementing trust land acquisitions

for Tribes are found at 25 C.F.R. part 151 (Part 151). Part 151 sets forth the

authorities, policy, and procedures governing the Department’s acquisition of land

in trust for Tribes. Bureau staff should consult with attorneys in SOL-Division of

Indian Affairs for further information on conveyances of land into trust for the

benefit of Indians.

2. Restoration of Surplus Reservation Lands

IRA Section 3 authorizes the Secretary “to restore to tribal ownership the remaining

surplus lands of any Indian reservation heretofore opened, or authorized to be

opened, to sale, or any other form of disposal by Presidential proclamation, or by

any of the public-land laws of the United States.”

235

The Department has long

231

Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. § 5101 et seq.).

232

The Meaning of “Under Federal Jurisdiction” for Purposes of the Indian Reorganization Act,

Sol. Op. M-37029 at 6 (Mar. 12, 2014) (citing Morton v. Mancari, 417 U.S. 535, 542 (1974)).

233

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 1804, 73d

Cong., 2d Sess. 6 (1934), and 78 Cong. Rec. 11125 (1934) (statement of Sen. Wheeler)).

234

25 U.S.C. § 5108.

235

See 25 U.S.C. § 5103(a).

Final Report on Co-Stewardship Authorities

construed Section 3 as limited to reservation lands “opened to sale or disposal for

the benefit of the Indians.”

236

Determining whether lands subject to a Tribal

stewardship request constitute “remaining surplus lands” within the meaning if IRA

Section 3 must be determined on a case-by-case basis in consultation with SOL

Division of Indian Affairs.

3. Land Exchanges

IRA Section 4 allows the Secretary to approve the voluntary exchange of restricted

Indian lands for land of equal value whenever she determines that such exchange

“is expedient and beneficial for or compatible with the proper consolidation of

Indian lands and for the benefit of cooperative organizations.” 25 U.S.C. § 5107.

The Department has historically interpreted Section 4 as applying to individual

Indian lands and tribal trust lands and as allowing a comparatively small difference

in land value, which difference can be made up by cash payment.

237

IRA Section 5 separately authorizes exchanges of any interest in lands within or

without a reservation to provide land for Indians. Lands exchanged under Section

5 may be of unequal value, provided that the Tribe obtains the benefit of the

difference in value.

238

Title to exchanged lands for a Tribe under Section 5 must be

taken by the United States in trust for the Tribe.

B. Indian Land Consolidation Act

The Indian Land Consolidation Act (ILCA)

239

authorizes the Secretary to approve

Tribal land consolidation plans, allowing Tribes to sell or exchange any tribal lands

or interests to limit or eliminate undivided fractional interests or to consolidate its

landholdings.

240

While a Tribe cannot accept less than ten percent of the fair market

value of the land or interests sold or exchanged, ILCA authorizes the Tribe to accept

cash payments to equalize the value of the transaction.

241

ILCA further mandates

that the Secretary acquire into trust any interest in trust or restricted lands if two

requirements are met: a portion of the land to be acquired must have been in trust

or restricted status on November 7, 2000; and the land to be acquired must be

236

See, e.g., San Carlos Lands Restoration, Sol. Op. M-27878 (May 20, 1936); Review of the

Legal Aspects of the San Carlos Mineral Strip Proposed Restoration, Sol. Op. M-36599, 69 I

NT.

DEC. 195, 198-99 (1962); The Authority of the Secretary to Transfer Areas Within the

Uncompahgre Reservation under Section 3 of the Indian Reorganization Act, Sol. Op. M-37051

(Feb. 21, 2018). See also Bowman v. Udall, 243 F. Supp. 672, 682 (D.D.C 1965), aff'd sub nom.

Hinton v. Udall, 364 F.2d 676 (D.C. Cir. 1966).

237

See, e.g., Commissioner of Indian Affairs, Circ. No. 3162 at 2 (Jun. 26, 1936); IRA Exchange

of Land, Memorandum from Solicitor Nathan Margold to Commissioner of Indian Affairs John

Collier (Feb. 3, 1937).

238

IRA Exchange of Land, Memorandum from Solicitor Nathan Margold to Commissioner of

Indian Affairs John Collier at 4-5 (Feb. 3, 1937).

239

Pub. L. No. 97-459, 96 Stat. 2517 (1983) (codified at 25 U.S.C. §§ 2201-2221).

240

25 U.S.C. § 2203.

241

Id.

Final Report on Co-Stewardship Authorities

located within a reservation.

242

ILCA Section 203 makes IRA Section 5 applicable

to any Tribe that voted to reject the IRA.

C. Indian Self-Determination and Education Assistance Act

In addition to authorizing Tribes to contract or compact to provide some federal

services, ISDEAA authorizes the Secretary to donate any personal or real property

found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health

Service, or the General Services Administration (subject to certain provisions) to

an Indian tribe or tribal organization.

243

ISDEAA also authorizes the Secretary to

acquire excess or surplus Government personal or real property for donation to an

Indian tribe or tribal organization if the Secretary determines the property is

appropriate for use by the Tribe or Tribal organization for a purpose for which a

self-determination contract or grant agreement is authorized under this chapter.

244

To do so, however, the Secretary must acquire the property before it can be donated

and the Tribe must have an ISDEAA contract, grant, or self-governance compact

in place before the BIA submits its request on behalf of the Tribe for buildings or

lands located off-reservation.

ISDEAA’s implementing regulations define the terms “real property” to mean “any

interest in land together with the improvements, structures, and fixtures and

appurtenances thereto.”

245

The regulations define “excess property” to mean real

or personal property under the control of a Federal agency, other than BIA and IHS,

which is not required for the agency's needs and the discharge of its

responsibilities.”

246

Finally, they define “surplus property” to mean “excess real or

personal property that is not required for the needs of and the discharge of the

responsibilities of all Federal agencies that has been declared surplus by the General

Services Administration (GSA).”

247

Although there is no explicit cross-reference

to the definitions of excess property or surplus property in the Federal Property and

Administrative Services Act, the ISDEAA definitions are consistent with these

definitions in the Federal Property and Administrative Services Act.

D. Act of Aug. 6, 1956

The Act of August 6, 1956

248

authorizes the Secretary to convey title to any

federally owned buildings, improvements, or facilities (including any personal

property used in connection with such buildings, improvements, or facilities) that

are situated on the lands of any Indian tribe, band, or group or on lands reserved for

the administration of its affairs, where such lands no longer required by the

Secretary for the administration of Indian affairs. This section is used for property

242

25 U.S.C. § 2216(c).

243

25 U.S.C. § 5324(f).

244

Id.

245

25 C.F.R. § 900.6.

246

25 C.F.R. § 900.102(a).

247

25 C.F.R. § 900.12(b).

248

Pub. L. No. 84-991, 70 Stat. 1057 (originally codified at 25 U.S.C. § 443a; transferred to 43

U.S.C. § 1457 note).

Final Report on Co-Stewardship Authorities

already under BIA stewardship and on lands of such tribes or on lands reserved for

the administration of the tribe’s affairs.

E. Hawaiian Home Lands Recovery Act

The Hawaiian Home Lands Recovery Act (HHLRA)

249

provides, in part, for the

settlement of claims against the United States through the exchange and transfer of

Federal lands for the United States' continued retention of lands initially designated

as available lands under the Hawaiian Homes Commission Act and for the lost use

of such lands. HHLRA authorizes the Secretary, in consultation with the Chairman

of the Hawaiian Homes Commission, to convey excess lands under control of a

Federal agency within the State of Hawaii to the Department of Hawaiian Home

Lands for inclusion in the Hawaiian Homelands Trust. Conveyance is made without

reimbursement to the controlling agency.

F. Federal Property and Administrative Services Act

The purpose of the Federal Property and Administrative Services Act (FPASA)

250

is to provide the Federal government with an economical and efficient system for

disposing of surplus property.

251

The FPASA authorizes the General Services

Administration (GSA) to transfer excess property from one Federal agency to

another. This includes the transfer, without compensation, to the Secretary of

“excess real property” within the reservation of a recognized Tribe.

252

Lands

transferred to the Secretary under FPASA’s Tribal provision are to be held in trust

for the benefit and use of the Tribe within whose reservation the property is

located.

253

FPASA defines “excess property” as property under the control of a Federal agency

that the head of the agency determines is not required to meet to meet its needs or

responsibilities.

254

It excludes lands in the public domain; land reserved or

dedicated for national forest or national park purposes; minerals in land withdrawn

or reserved from the public domain that the Secretary determines are suitable for

disposition under the public land mining and mineral leasing laws; and land

withdrawn or reserved from the public domain, except those that the Secretary,

along with the GSA Administrator, determines are not suitable for return because

the lands are substantially changed in character by improvements or otherwise.

255

249

Pub. L. No. 104-2, 109 Stat. 353 (1995).

250

Pub. L. No. 81-152, 63 Stat. 377 (codified as amended in scattered sections of Titles 40 and 41

of the U.S. Code).

251

40 U.S.C. § 101.

252

40 U.S.C. § 523.

253

40 U.S.C. § 523(b)(1).

254

40 U.S.C. § 102(3).

255

40 U.S.C. § 102(9)(A).

Final Report on Co-Stewardship Authorities

G. Federal Land Policy and Management Act

The Federal Land Policy and Management Act of 1976 (FLPMA),

256

discussed

above, also provides authority for BLM to sell

257

or exchange

258

public lands to any

person provided they are a citizen of the United States or to any corporation

provided it is subject to the laws of any State or the United States.

259

1. Sale of Tracts of Public Land

FLPMA authorizes the sale of tracts of public land where BLM, as a result of land

use planning,

260

determines that the tract meets certain disposal criteria. These

include that the tract is difficult and uneconomic to manage due to its location or

other characteristics, and is not suitable for management by another Federal agency;

that the tract is no longer required for the purpose for which it was acquired; or

where disposal of the tract “will serve important public objectives.” Such objectives

include, but are not limited to, the expansion of communities and economic

development, provided these cannot prudently or feasibly be achieved on land other

than public land, and where these outweigh other public objectives and values, such

as recreation and scenic values, that would be served by keeping the tract in federal

ownership.

261

The sale of a public land tract under FLPMA must be at a price not

less than its fair market value as determined by BLM.

262

FLPMA imposes certain limits on the sale of tracts of public lands. Lands within

units of the National Wilderness Preservation System, National Wild and Scenic

Rivers Systems, and National System of Trails may not be sold under FLPMA.

263

Tracts designated for sale over 2500 acres in size must be referred to Congress for

review.

264

Sales must be conducted through competitive bidding procedures

established by BLM unless BLM waives this requirement based on equitable

considerations or public policies.

265

In recognizing public policies, BLM must

further consider certain potential purchasers, including the state in which the tract

is located and local governments in the vicinity; adjoining landowners; individuals;

and any other person.

266

2. Exchanges of Tracts of Public Lands

FLPMA authorizes BLM to dispose of a tract of public land (or interests therein)

by exchange where BLM determines that the public interest will be well served by

256

Pub. L. No. 94-579, 90 Stat. 2744 (1976) (codified as amended at 43 U.S.C. § 1701 et seq.).

257

43 U.S.C. § 1713.

258

43 U.S.C. § 1716.

259

43 U.S.C. § 1717.

260

See 43 U.S.C. § 1716.

261

43 U.S.C. § 1713(a)(3).

262

43 U.S.C. § 1713(d).

263

43 U.S.C. § 1713(a).

264

43 U.S.C. § 1713(c).

265

43 U.S.C. § 1713(f).

266

43 U.S.C. § 1713(f)(1)-(5).

Final Report on Co-Stewardship Authorities

doing so.

267

In considering the public interest, BLM must weigh a number of

considerations, including the needs of local people.

268

Lands received by BLM

within the boundaries of a conservation system established by Congress become

part of the relevant system without further action by BLM .

269

Land received in exchange for a tract of public land must be located in the same

state. The value of the lands to be exchanged must also be equal. If not, then their

values must be equalized by the payment of money as circumstances require,

provided payment does not exceed 25% of the total value of the tract of public

land.

270

However, BLM and parties involved may, by mutual agreement, waive any

equalization payment if BLM determines that doing so will expedite the transfer,

that the public interest will be better served thereby, and where the amount waived

is less than a specified amount.

271

H. Recreation and Public Purposes Act

The Recreation and Public Purposes Act (RPPA)

272

authorizes BLM to dispose of

any public lands by sale or lease to a State, Territory, county, municipality, or other

State, Territorial, or Federal instrumentality or political subdivision for “any public

purposes,” or to a nonprofit corporation or nonprofit association for any

recreational or any public purpose consistent with its articles of incorporation or

other creating authority.

273

The RPPA’s implementing regulations define “public purpose” as meaning “for the

purpose of providing facilities or services for the benefit of the public in connection

with, but not limited to, public health, safety or welfare,” but not use of lands or

facilities “for habitation, cultivation, trade or manufacturing” unless necessary for

and integral to, i.e., an essential part of, the public purpose.

274

Among other things,

the RPPA requires BLM to find that the land is to be used for an established or

definitely proposed project, that it is not of national significance, and that it is not

more than is reasonably necessary for the proposed use.

275

The RPPA does not apply to lands in any national forest, national park, national

monument, or national wildlife refuge.

276

It also does not apply to Indian lands or

267

43 U.S.C. § 1716.

268

43 U.S.C. § 1716.

269

43 U.S.C. § 1716(c). These include the National Park System, National Wildlife Refuge

System, National Wild and Scenic Rivers System, National Trails System, National Wilderness

Preservation System, and the California Desert Conservation Area.

270

43 U.S.C. § 1716(b).

271

43 U.S.C. § 1716(b). FLPMA further allows the Secretary to exchange land of “approximately

equal value” where the Secretary determines that doing so is in the public interest and that doing

so will expedite the exchange. 43 U.S.C. § 1716(h).

272

Act of June 14, 1926, ch. 578, 44 Stat. 741 (codified as amended at 43 U.S.C. §§ 869-869-4

and 1721).

273

43 U.S.C. §§ 869, 869-1.

274

43 CFR 2740.0-5(d).

275

43 U.S.C. § 869(a).

276

43 U.S.C. § 869(c).

Final Report on Co-Stewardship Authorities

lands set aside or held for the use or benefit of Indians, including lands over which

jurisdiction has been transferred to the Department by Executive Order for the use

of Indians.

277

The RPPA imposes certain limits on the acreage that may be conveyed to a state or

non-profit for recreational or other public purposes in a single calendar year, with

certain exceptions.

278

BLM shall fix the price of a sale or lease under RPPA through appraisal or

otherwise, after taking into consideration the purpose for which the lands are to be

used.

279

Land conveyed under the RPPA may not be transferred by a grantee or its

successor except with the consent of BLM to a qualified grantee. In the event the

lands conveyed are transferred without consent of the Secretary or devoted to a use

other than that for which they were conveyed, title to the lands shall revert to the

United States.

280

I. Tribe-Specific Authorities

In addition to the general authorities outlined above, Tribe-specific laws may also

authorize the conveyance of land to Tribes. The following examples of such

authorities is provided for illustrative purposes only.

1. Pub. L. No. 76-690 (Spokane and Colville Tribes)

Pub. L. No. 76-690, 54 Stat. 703 (1940),

281

authorizes the Secretary to “select and

acquire” new cemetery lands to replace those required for the Grand Coulee Dam

project on the Columbia River. Sites used for the relocation of cemeteries are to be

held in trust for the Spokane Tribe or the Colville Tribe, as the case may be.

2. Confederated Salish and Kootenai Tribes

Pub. L. No. 90-402

282

authorizes the Secretary, upon request of the Confederated

Salish and Kootenai Tribes, to dispose of specific lands within the exterior

boundaries of the Flathead Reservation in Montana by sale at not less than fair

market value or by exchange, and to thereby acquire Indian or non-Indian owned

land within the Reservation boundaries and to hold such lands for Tribal use or sale

to Tribal members.

277

43 U.S.C. § 869(c).

278

43 U.S.C. § 869(b); 43 U.S.C. § 1721.

279

43 U.S.C. § 869-1.

280

43 U.S.C. § 869-2.

281

Codified at 16 U.S.C. § 835g.

282

82 Stat. 356.

Final Report on Co-Stewardship Authorities

3. Three Affiliated Tribes

Section 206(b) of the Fort Berthold Mineral Restoration Act of 1984

283

authorizes

the Secretary of the Army and the Secretary of the Interior to enter agreements to

declare lands within the reservation acquired by the United States for the

construction, maintenance, or operation of the Garrison Dam and Reservoir Project

that are no longer needed for such purposes as held by the United States in trust for

the Three Affiliated Tribes of the Fort Berthold Reservation.

4. Catawba Tribe Land Claims Settlement Act

Section 9(a) of the Catawba Indian Tribe of South Carolina Land Claims Settlement

Act of 1993,

284

107 Stat. 1118, extends the provisions of the Indian Reorganization

Act to the Catawba Indian Tribe. Section 12 of the act authorizes the Secretary to

approve the sale, exchange, or lease lands within the Tribe’s reservation, limiting

the total size of the Tribe’s reservation to 6,000 acres within South Carolina, but

permitting the Tribe to acquire additional non-reservation lands that can be held in

fee simple.

5. Maine Indian Claims Settlement Act

Section 5 of the Maine Indian Claims Settlement Act of 1980

285

authorizes the

Secretary to purchase, from funds allocated under the Act, or otherwise acquire for

the tribes, land or natural resources within the state of Maine to be held in trust. The

Act expressly limits the Secretary’s authority to acquire such property to the

provisions outlined in the Act and precludes trust acquisitions pursuant to the IRA.

6. Menominee Restoration Act

Section 6 of the Menominee Restoration Act

286

mandates that the Secretary accept

land owned by the Tribe or its members within the boundaries of Menominee

County, Wisconsin and that such land shall be held as reservation land.

7. Texas Band of Kickapoo Act

Section 5 of the Texas Band of Kickapoo Act

287

extends the Secretary’s authority

under the IRA to acquire lands in trust for the benefit of the Tribe but limits the

Secretary’s acquisition authority to land located in Maverick County, Texas.

283

Pub. L. No. 98-602, 98 Stat. 3152 (1984).

284

Pub. L. No. 103-116, 107 Stat. 1118 (1993).

285

Pub. L. No. 96-420, 94 Stat. 1785.

286

Pub. L. No. 93-197, 87 Stat. 770 (1973).

287

Pub. L. No. 97-429, § 5(a), 96 Stat. 2269, 2270 (1983).

Final Report on Co-Stewardship Authorities

App. I-1

APPENDIX I.

SOL CONTACT INFORMATION

For further information and advice on specific collaborative or cooperative co-

stewardship proposals, Bureaus are advised to contract the appropriate Solicitor’s

office.

A. Alaska Regional Solicitor

The Office of the Alaska Regional Solicitor is located in Anchorage, Alaska. (907)

271-4131.

B. Pacific Northwest Regional Solicitor (Idaho, Montana, Oregon, and

Washington)

The Office of the Northwest Regional Solicitor is located in Portland, Oregon. A

Field Office is located in Boise, Idaho. (503) 231-2126.

C. Pacific Southwest Regional Solicitor (California, Hawaii, Nevada, and the

Pacific Islands)

The Office of the Pacific Southwest Regional Solicitor is located in Sacramento,

California. A Field Office is located in San Francisco, California. (916) 978-6131.

D. Southwest Regional Solicitor (New Mexico, Oklahoma, Texas, Arizona,

Colorado, Kansas, Louisiana, Illinois, Indiana, and Alabama)

The Office of the Regional Solicitor is located in Albuquerque, New Mexico. A

Field Office is located in Tulsa, Oklahoma. (505) 248-5600.

E. Southeast Regional Solicitor (Alabama, Arkansas, Florida, Georgia,

Kentucky, Louisiana, Mississippi, North Carolina, South Carolina,

Tennessee, Puerto Rico, and the Virgin Islands)

The Office of the Regional Solicitor is located in Atlanta, Georgia. A Field Office

is located in Knoxville, Tennessee. (404) 331-4447.

F. Northeast Regional Solicitor (Connecticut, Delaware, Illinois, Indiana,

Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire,

New Jersey, New York, North Dakota, Ohio, Pennsylvania, Rhode Island,

South Dakota, Vermont, Virginia, West Virginia, and Wisconsin)

The Office of the Regional Solicitor is located in Minnesota's Twin Cities area.

Field Offices are located in Boston, Massachusetts, and Pittsburgh, Pennsylvania.

(612) 713-7100.

G. Intermountain Regional Solicitor (Utah, Arizona and Nevada)

The Office of the Regional Solicitor is located in Salt Lake City, Utah. A Field

Office is located in Phoenix, Arizona. (801) 524-5677.

Final Report on Co-Stewardship Authorities

App. I-2

H. Rocky Mountain Regional Solicitor (Colorado, Iowa, Kansas, Missouri,

Nebraska, and Wyoming)

The Office of the Rocky Mountain Regional Solicitor is located in the Denver,

Colorado, metropolitan area. A Field Office is located in Billings, Montana. (303)

445-0610.

I. Office of the Solicitor

The Office of the Solicitor is headquartered in Washington, D.C. and is comprised

of the Division of Mineral Resources (BLM, BOEM, BSEE, OSM); the Division

of General Law; the Division of Indian Affairs (BIA); the Division of Land

Resources (BLM); the Division of Parks & Water (NPS, FWS); and the Division

of Water Resources (BOR, DPW). (202) 208-4423.

Final Report on Co-Stewardship Authorities

App. II-1

APPENDIX II.

RELATED POLICY & GUIDANCE

In addition to the authorities described above, this section details sources of

additional guidance that can support cooperative and collaborative arrangements

with Tribes, including Executive and Secretarial Orders, guidance of Bureaus,

including annual Tribal consultation reports, as well as guidance from the

Department’s sister agencies, including the Department of Agriculture.

A. Executive Orders

Executive Orders (EOs) are issued by the President of the United States to manage

Executive Branch operations. The following EOs may have relevance for issues of

collaborative and cooperative stewardship arrangements between the Department

and Tribes.

1. E.O. 14008, Tackling the Climate Crisis at Home and Abroad

(Jan. 27, 2021)

Establishing policy to combat the climate crisis by aligning the management of

Federal procurement and real property, public lands and waters, and financial

programs to support robust climate action and further directing the Secretary of the

Interior to consult with Tribal authorities regarding the development and

management of renewable minerals and conventional energy resources on Tribal

lands.

2. E.O. 14082, Implementation of the Energy and Infrastructure

Provisions of the Inflation Reduction Act of 2022 (Sep. 12, 2022)

Directing Federal agencies in implementing the energy and infrastructures

provisions in the Inflation Reduction Act of 2022, Pub. L. 117-169, to prioritize

effectively coordinating with Tribal governments in implementing critical

investments

3. E.O. 14052, Implementation of the Infrastructure Investment and Jobs

Act (Nov. 18, 2021)

Directing Federal agencies in implementing the Infrastructure Investment and Jobs

Act, Pub. L. 117-58, to prioritize effectively coordinating with Tribal governments

in implementing critical investments.

4. E.O. 13352, Facilitation of Cooperative Conservation (Aug. 26, 2004)

Directing Interior, Agriculture, Commerce, Defense, and the EPA to implement

environment and natural resources laws in a manner that promotes cooperative

conservation, with an emphasis on appropriate inclusion of local participation in

Final Report on Co-Stewardship Authorities

App. II-2

Federal decision-making, in accordance with their respective agency missions,

policies, and regulations.

5. E.O. 13175, Consultation and Coordination with Indian Tribal

Governments (Nov. 6, 2000)

Establishing principles and directions for Federal agency consultation with

federally recognized Tribes. See also Presidential Memorandum on Tribal

Consultation and Strengthening Nation-to-Nation Relationships (Jan. 26, 2021)

(reaffirming requirement that Federal agencies prepare and periodically update

detailed plan of action to implement the policies of EO 13175).

6. E.O. 13007, Indian Sacred Sites (May 24, 1996)

Directing Federal agencies having statutory or administrative responsibilities for

management of Federal lands to accommodate access to and use of Indian sacred

sites and to avoid adversely affecting physical integrity of such sites, to the extent

practicable and consistent with law. See also 512 DEPARTMENTAL MANUAL (DM)

3 (establishing policies, responsibilities, and procedures for implementing E.O.

13007).

B. Secretarial Orders

In addition to S.O. 3403 and S.O. 3342, the following Secretarial Orders also

provide support for collaborative and cooperative stewardship arrangements.

1. S.O. 3366, Increasing Recreational Opportunities on Lands and Waters

Managed by the U.S. Department of the Interior (Apr. 18, 2018)

Directing Bureaus to collaborate with relevant Tribal authorities responsible for

recreation during the Department’s land management planning and

implementation, including prioritizing recreational projects and funding that

contribute to achieving recreational opportunities; to work cooperatively with

Tribal wildlife agencies to enhance their access to Department lands to provide

opportunities for recreation; and to work cooperatively with Tribal wildlife

agencies to ensure that regulations for recreation on lands and waters managed by

the Department complement, or at a minimum do not contradict, the regulations on

the surrounding lands and waters to the extent legally practicable.

2. S.O. 3362, Improving Habitat Quality in Western Big-Game Winter

Range and Migration Corridors (Feb. 9, 2018)

Directing Bureaus to collaborate with Tribal fish and wildlife agencies to attain or

sustain wildlife population goals during the Department’s land management

planning and implementation, and to identify additional ways to work

cooperatively with Tribal wildlife agencies to enhance access to the Department’s

land for wildlife management actions, including for Tribes.

Final Report on Co-Stewardship Authorities

App. II-3

3. S.O. 3356, Hunting, Fishing, Recreational Shooting, and Wildlife

Conservation Opportunities and Coordination with States, Tribes, and

Territories (Sep. 15, 2017)

Directing greater collaboration with Tribes and Tribal wildlife agencies to

coordinate in identifying opportunities for increased access to Department lands

and waters, including for access though adjacent lands; to attain or sustain wildlife

population goals during Department land-management planning and

implementation, including prioritizing active habitat-management projects and

funding that contribute to achieving wildlife population objectives, particularly for

wildlife that is hunted or fished; and to work cooperatively with Tribal wildlife

agencies to enhance their access to Department lands for wildlife management

actions.

4. S.O. 3225, Endangered Species Act and Subsistence Uses in Alaska

(Depts. of Interior and Commerce) (Supplementing S.O. 3206)

(Jan. 19, 2001)

Clarifying application of S.O. 3206 in Alaska and requiring Department to provide

information indicating conservation concerns relative to a species that is listed as

endangered or threatened under the ESA and also used for subsistence to affected

Alaska Natives, Tribes, and other Native organizations; to seek their full and

meaningful participation in evaluating and addressing conservation concerns; and

to seek input from, and collaboration with, Alaska Natives when gathering

information upon which to base findings relative to whether a subsistence take is

materially and negatively affecting listed species; and for other purposes.

5. S.O. 3206, American Indian Tribal Rights, Federal-Tribal Trust

Responsibilities, and the Endangered Species Act (Depts. of Interior

and Commerce) (Jun. 5, 1997)

Clarifying Departmental responsibilities as to actions taken under authority of the

ESA and its implementing regulations affect, or may affect, Indian lands, tribal trust

resources, or the exercise of American Indian tribal rights, and requiring

Departments to work directly with Tribes on a government-to-government basis to

promote healthy ecosystems; to recognized that Indian lands are not subject to the

same controls as federal public lands; to assist Tribes in developing and expanding

Tribal programs for promoting healthy ecosystems so as to render conservation

restrictions unnecessary; to be sensitive to Indigenous culture, religion, and

spirituality; and to make available to Tribes information related to Tribal trust

resources and Indian lands, to facilitate the mutual exchange of information and

strive to protect sensitive Tribal information from disclosure.

C. Departmental Directives

The Departmental Manual (DM) is the authorized means of documenting and

issuing instructions, policies, and procedures that have general and continuing

Final Report on Co-Stewardship Authorities

App. II-4

applicability to Departmental activities,

288

and it describes the organizations and

functions of the Department’s Bureaus, documents delegations of the Secretary’s

authority, and prescribes the policies and general procedures for administrative

activities and specific program operations.

289

The following non-exclusive list of

DM chapters provides examples of how the DM may generally or particularly

support collaborative and cooperative co-stewardship arrangements.

1. 512 DM 2 (Responsibilities for Indian Trust Resources)

Part 512 addresses American Indian and Alaska Native Programs. Chapter 2

establishes the policies, responsibilities, and procedures for operating on a

government-to-government basis with federally recognized Indian tribes for the

identification, conservation, and protection of American Indian and Alaska Native

trust resources to ensure the fulfillment of the federal Indian trust responsibility.

2. 512 DM 3 (Responsibilities for Protecting/Accommodating Access to

Indian Sacred Sites)

Establishes the policy, responsibilities, and procedures to accommodate access to

and ceremonial use of Indian sacred sites and to protect the physical integrity of

such sites consistent with E.O. 13007, “Indian Sacred Sites.”

3. 512 DM 4 (Policy on Consultation with Indian Tribes and Alaska

Native Corporations)

Provides Departmental requirements for government-to-government consultation

between Department and Tribal and Alaska Native Corporation officials, expands

and clarifies the Department’s policy on consultation with Indian Tribes and Alaska

Native Corporations, and acknowledges the provisions for conducting consultation

in compliance with E.O. 13175, applicable statutes, and administrative actions.

4. 512 DM 5 (Procedures for Consultation with Indian Tribes)

Provides the procedures and process government-to-government consultation

between Department and Tribal and Alaska Native Corporation officials.

5. 514 DM 1 (Hawaiian Homes Commission Act)

Describes the structures and procedures for carrying out the Secretary’s

responsibilities under the Hawaiian Homes Commission Act for approving certain

exchanges of land by the Department of Hawaiian Home Lands of the State of

Hawaii.

288

011 DM 1.1.

289

011 DM 1.2.

Final Report on Co-Stewardship Authorities

App. II-5

6. 604 DM 1 (Implementing Landscape-Level Approaches to Resource

Management)

Establishes policy and provides guidance on implementing landscape-level

approaches to resource management for all Bureaus with responsibilities for the

management of resources, including but not limited to water, lands, air quality,

natural, scenic, recreational, and cultural, and infrastructure under the Department’s

jurisdiction. Defines “landscape goals” as broad statements of present and desire

future landscape condition developed in coordination with stakeholders.

290

D. Interagency Agreements

1. Memorandum of Understanding Regarding Interagency Coordination

and Collaboration for the Protection of Tribal Treaty Rights and

Reserved Rights (2021)

Signed by 17 Federal agencies, the Tribal Treaty Rights MOU commits the

Department to work to support the creation, integration, and use of a searchable and

indexed database of all treaties between the United States government and Tribal

nations and facilitate understanding and compliance with our treaty obligations; to

enhance ongoing efforts to integrate consideration of Tribal treaty and reserved

rights early into the federal decision-making and regulatory processes to ensure

agency actions are consistent with constitutional, treaty, reserved, and statutory

rights; and to develop, improve, and share tools and resources for identifying,

understanding, and analyzing whether and how Tribal treaty and reserved rights

may be adversely impacted or otherwise affected by agency decision-making,

regulatory processes or other actions or inaction.

2. Memorandum of Understanding Regarding Interagency Coordination

and Collaboration for the Protection of Indigenous Sacred Sites (2021)

Signed by 8 Federal agencies, the Sacred Sites MOU commits the Department to

improving the protection of, and access to, Indigenous sacred sites through

enhanced and improved interdepartmental coordination, collaboration, and action,

and through demonstrating its commitment by considering issues of protection and

access to Indigenous sacred sites early in the process of agency decision-making

and regulatory processes.

290

604 DM 1.4.B.

Final Report on Co-Stewardship Authorities

App. II-6

E. Bureau Guidance

1. BIA, National Policy Memorandum NPM-DBIA-2022-2, Supporting

Tribal Nations in Stewardship of Federal Lands and Water

(Nov. 18, 2022)

Providing policy guidance for BIA programs, offices, regions, and agencies to

support collaborative and cooperative stewardship of Federal lands and waters

pursuant to S.O. 3403, including directing BIA staff to support the goals of SO

3403; establishing a national framework for BIA to support other bureaus and

offices in fulfilling treaty and trust responsibilities to Tribes in the stewardship of

Federal lands and waters in ways sensitive to variations in Tribal histories;

affirming BIA support for its sister bureaus and offices as they develop and broaden

nation-to-nation relationships with Tribes; and reaffirming BIA’s commitment and

support to the consolidation of Tribal homelands, the pursuit of co-stewardship, and

the utility of Indigenous Knowledge for the stewardship and management of

Federal lands and waters.

2. BLM, Permanent Instruction Manual (PIM) No. 2022-011, “Co-

Stewardship with Federally Recognized Indian and Alaska Native

Tribes Pursuant to Secretary’s Order 3403” (Sep. 13, 2022)

Providing BLM direction for implementing the provisions of S.O. 3403, including

on ways for: designing co-stewardship arrangements; involving Tribes in the

processes resulting in BLM decision-making, including land-use planning;

identifying co-stewardship opportunities; evaluating and incorporating Indigenous

Knowledge in its analyses and decision-making; and documenting all co-

stewardship arrangements.

3. BSEE, Bureau Interim Directive (BID) 2022-047N, Part 570 – Tribal

Engagement (Oct. 27, 2022)

Establishing National Tribal Engagement Program to ensure BSEE’s commitment

to Tribal engagement throughout the Bureau, with requirements: to designate a

Tribal Liaison Officer; to ensure BSEE’s compliance with Departmental

requirements on Tribal and Alaska Native corporations consultations and meetings;

to ensure NTEP has necessary resources to carry out its consultation

responsibilities; and to ensure adequate training for BSEE representatives with

responsibilities for Tribal consultations.

4. FWS, Director’s Order (DO) No. 227, “Fulfilling the Trust

Responsibility to Tribes and the Native Hawaiian Community, and

Other Obligations to Alaska Native Corporations and Alaska Native

Organizations, in the Stewardship of Federal Lands and Waters”

(Sep. 8, 2022)

Stepping-down the requirements of S.O. 3403 to ensure that FWS manages Federal

lands and waters in a manner that seeks to protect the treaty, religious, subsistence,

Final Report on Co-Stewardship Authorities

App. II-7

and cultural interests of Tribes, Alaska Native corporations, and the Native

Hawaiian Community; establishes a consistent national framework for guiding

FWS in administering trust responsibilities to Tribes and the Native Hawaiian

Community in the stewardship of federal lands and waters, including where Tribes

have subsistence or other rights or interests; reaffirms FWS’s commitment for

government-to-government relationship with Tribes and its government-to-

sovereign relationship with the Native Hawaiian Community, acting through the

Native Hawaiian Organizations; and supplements FWS’s existing Native American

Policy at 510 FW 1, and forthcoming Alaska Native Relations Policy at 510 NW 2.

5. FWS, 510 FW 1, Native American Policy (updated Jan. 20, 2016)

Providing a framework for government-to-government relationships with Tribes

and articulates the principles for FWS’s interactions with Tribes on issues of shared

interests in the conservation of fish, wildlife, and their habitats, including FWS

lands and cultural resources that exist on those lands, as well as co-management

and collaborative management.

291

6. FWS, Traditional Ecological Knowledge for Application by Service

Scientists (Feb. 2011)

Providing overview of definitions of traditional ecological knowledge and its

potential uses by FWS.

292

7. NPS, Policy Memorandum 22-03, Fulfilling the National Park Service

Trust Responsibility to Indian Tribes, Alaska Natives, and Native

Hawaiians in the Stewardship of Federal Lands and Waters

(Sep. 12, 2022)

Setting forth guidance on how NPS will implement the requirements of S.O. 3403

and supplements existing guidance found in NPS Management Policies 2006 on

matters including consultation; co-stewardship of federal lands and waters;

collaborative and annual funding agreements; access to and protection of sacred

sites; Tribal expertise and Indigenous knowledge; treaty rights and trust

responsibilities; and NPS staff competencies and trainings.

8. NPS, Management Policies 2006 (2006)

Setting forth framework and providing direction for all NPS management

decisions.

293

Adherence is mandatory unless specifically waived or modified by the

Secretary, Assistant Secretary, or NPS Director.

294

Numerous provisions address

working relationships with Tribes, from the basics of engagement,

295

park system

291

Available at https://fws.gov/media/native-american-policy-2016-0.

292

Available at https://www.fws.gov/media/traditional-ecological-knowledge-fact-sheet.

293

Available at https://www.nps.gov/subjects/policy/upload/MP_2006.pdf.

294

NPS Management Policies 2006 at 4.

295

See id. at subsections 1.7 (civic engagement), 1.11 (relationships with American Indian Tribes),

and 1.12 (Native Hawaiians, Pacific Islanders, and Caribbean Islanders).

Final Report on Co-Stewardship Authorities

App. II-8

planning,

296

natural resource management,

297

and wilderness preservation and

management.

298

9. NPS, Reference Manual RM 66B, “Handling Protected Information”

(Oct. 2004)

Discussing available procedures and tools for handling protected information

collected, maintained, or disseminated by NPS concerning cultural and natural

resources.

299

NPS’s “Reference Sensitivity, Proprietary and Quality Designations”

(Aug. 27, 2018) provides further discussion of ways to protect sensitive data from

public disclosure.

300

10. NPS, Making Friends. An Introduction to Building National Park

Service Friends Groups (Apr. 2009)

Handbook for NPS staff and communities interested in creating or expanding

Friends Groups, which help support interpretive, educational, and scientific

activities through fundraising, membership programs, and awareness building.

301

Though it does not address Trial collaboration, it includes an appendix listing and

summarizing authorities and statutory tools that may be useful in forming

partnership arrangements.

11. BOR, Reclamation Manual, Policy NIA P10, “Indian Policy of the

Bureau of Reclamation” (Jul. 24, 2014, rev. Sep. 24, 2020)

Setting forth BOR’s policies for complying with the laws and policies defining the

United States’ special relationship with Tribes and for ensuring that Tribes have the

opportunity to participate in the Reclamation Program.

302

296

See id. at subsections 2.1.3 (NPS “will actively seek out and consult with existing and potential

visitors, neighbors, American Indians, other people with traditional cultural ties to park lands...

The Service will work cooperatively with others to improve the condition of parks; to enhance

public service; and to integrate parks into sustainable ecological, cultural, and socioeconomic

systems”), and 2.3.1.5 (members of the public, including American Indians, will be encouraged to

participate during the preparation of a general management plan and the associated environmental

analysis).

297

See, e.g., id. at subsection 4.1.4 (NPS will pursue opportunities to improve natural resource

management within parks and across administrative boundaries by pursuing cooperative

conservation with public agencies, appropriate representatives of American Indian tribes and other

traditionally associated peoples, and private landowners in accordance with Executive Order

13352 (Facilitation of Cooperative Conservation)).

298

See id. at subsection 6.3.12 (American Indian access and associated sites) (addressing

protection and maintenance of certain sites associated with Tribes).

299

Available at https://irma.nps.gov/DataStore/Reference/Profile/2224216).

300

Available at https://irma.nps.gov/DataStore/DownloadFile/626221.

301

Available at http://npshistory.com/publications/rtca/making-friends.pdf.

302

Available at https://www.usbr.gov/recman/nia/nia-p10.pdf.

Final Report on Co-Stewardship Authorities

App. II-9

12. BOR, Guidance for Implementing Indian Sacred Sites Executive Order

13007 (Sep. 16, 1998)

Setting forth BOR interim guidance for implementing E.O. 13007.

13. Office of the Solicitor Partnership Legal Primer (2004)

Providing guidance for Bureaus to develop effective and appropriate partnerships,

which can be important to effectively accomplishing the Department’s various

missions of managing, conserving, and protecting America’s natural, cultural, and

historic resources.

303

The Partnership Primer addresses questions about the nature

of partnerships generally, and the legal frameworks for engaging in them. Though

in need of updating and revision in light of subsequent changes in law, especially

with respect to use of appropriations and Department resources, the Partnership

Primer remains a valuable resource for understanding the issue of collaborative and

cooperative arrangements.

14. DOI Bison Working Group (NPS, FWS, BLM, BIA, USGS), 2020 Bison

Conservation Initiative

Describing the Bison Working Group’s principles for accomplishing collaborative

approaches to ecological and cultural restoration of American bison, and describing

five goals, including shared stewardship with Tribes, states, and other

stakeholders.

304

F. Other

1. Cooperative Ecosystems Studies Units National Network

The Cooperative Ecosystem Studies Units (CESU) Network

305

is a national

consortium of Federal agencies,

306

Tribes, academic institutions, state and local

governments, nongovernmental conservation organizations, and other partners

working together to support informed public trust resource stewardship. Federal

partners participating in CESU include BIA, BLM, BOEM, BOR, FWS, and

USGS.

307

CESUs provide research, technical assistance, and education to federal

land management, environmental, and research agencies and their partners to

address natural and cultural resource management issues at multiple scales and in

an ecosystem context. Federal agencies participate in CESUs within the scope of

303

U.S. Dep’t of Interior, Office of the Solicitor, Partnership Legal Primer (1st ed. Sept. 2004).

304

Available at https://www.nps.gov/articles/000/bison-conservation-initiative.htm.

305

Further information on CESUs is available at http://www.cesu.psu.edu/default.htm.

306

As of January 2022, 17 Federal agencies participated in the CESU Network. See

http://www.cesu.psu.edu/materials/FactSheet_CESU_Partners_JAN2022.pdf. T

hese included the

following Bureaus: BIA; BLM; NPS; FWS; BOR; BOEM; USGS. Participating agencies of

USDA include the Forest Service and the Farm Agency.

307

Other federal partners include USFS, the National Oceanic and Atmospheric Administration;

National Aeronautics and Space Administration; Department of Defense, Office of the Assistant

Secretary of Defense for Sustainment and POW/MIA Accounting Agency; U.S. Army Corps of

Engineers; and Department of Energy, Western Area Power Administration.

Final Report on Co-Stewardship Authorities

App. II-10

their respective missions and administrative structure. The CESU Network includes

more than 480 nonfederal partners and 17 Federal agencies across seventeen

CESUs representing biogeographic regions encompassing all 50 states, the District

of Columbia, and U.S. insular areas.

Final Report on Co-Stewardship Authorities

App. III-1

APPENDIX III.

CURRENT EXAMPLES OF COLLABORATIVE

STEWARDSHIP ARRANGEMENTS

The following list is intended to provide examples of current collaborative

stewardship arrangements with Tribes for Bureau staff seeking further information

on possible arrangements.

A. BLM

1. Bears Ears National Monument

In June 2022, the Bureau of Land Management, the U.S. Forest Service, and the

five Tribes of the Bears Ears Commission – the Hopi Tribe, Navajo Nation, Ute

Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation, and

the Pueblo of Zuni – formalized a partnership for co-management of the Bears Ears

National Monument. The BLM and the U.S. Forest Service jointly manage the

monument and will prepare a management plan for federal lands within the 1.36

million-acre boundaries of the Bears Ears National Monument working

cooperatively with the Tribal members of the Bears Ears Commission to protect

and restore the monument objects and values.

B. FWS

1. Kodiak National Wildlife Refuge

FWS entered its first contract under Title I of ISDEAA with Koniag, Inc., an Alaska

Native Claims Settlement Act Corporation, to support a new Community Affairs

Liaison position intended to serve a critical role in enhancing communication and

education programs and services between FWS and Alaska Native stakeholders in

the Kodiak Archipelago.  In doing so FWS recognizes and supports Koniag’s deep

cultural and historic ties in the region and its ability to meaningfully contribute to

and enhance FWS’s relationships and communications in the region. 

2. Dworshak National Fish Hatchery

FWS and the Nez Perce Tribe have collaboratively managed the Dworshak

National Fish Hatchery, located in the heart of the Nez Perce Reservation, since

2005. The U.S. Army Corps of Engineers constructed the Hatchery to mitigate for

the impacts of Dworshak Dam on the North Fork of the Clearwater River and the

four lower Snake River dams, and continues to own the facility. In 2016, FWS

transferred all fish production at the Hatchery to the Tribe, which produces 2.1

million steelhead, 2.55 million spring Chinook, and 500,000 coho salmon annually

and provides harvest opportunities for the shared Tribal and non-Tribal fisheries in

the Clearwater, Snake and Columbia Rivers in Idaho, Washington and Oregon.

FWS maintains its longstanding partnership with the Tribe by providing support to

Final Report on Co-Stewardship Authorities

App. III-2

the hatchery through the Idaho Fish and Wildlife Conservation Office and Pacific

Region Fish Health Program.

3. Rappahannock River Valley National Wildlife Refuge

In April 2022, the Rappahannock Tribe re-acquired 465 acres of its ancestral land

at Fones Cliffs, a sacred site on the eastern banks of the Rappahannock River in

Virginia located within the Rappahannock River Valley National Wildlife Refuge.

The site is a globally significant Important Bird Area for migratory birds, and the

Refuge hosts one of the largest nesting populations of bald eagles on the Atlantic

coast. A site of both natural and cultural importance, it is also a key feature along

the Captain John Smith Chesapeake National Historic Trail. The Tribe’s lands will

be publicly accessible and held with a permanent conservation easement conveyed

to FWS. The Tribe will create trails and a replica 16th-century village where its

members can educate the public about their history and Indigenous approaches to

conservation. The lands also offers opportunities for the Tribe to expand its Return

to the River program, which trains Tribal youth in traditional river knowledge and

practices and conducts outreach and education for other communities interested in

the Rappahannock River. The Department, through FWS, continues to engage the

Tribe about next steps for its important stewardship work, including ongoing

management, interpretation, and continued use of the stewardship model for

potential future acquisitions.

4. Lenape National Wildlife Refuge

In June 2022, FWS entered a Memorandum of Understanding with the Delaware

Nation, the Delaware Tribe residing in Oklahoma, and the Stockbridge-Munsee

Community in Wisconsin to establish a secure, respectful location on federal lands

in the Delaware River Basin to rebury ancestral remains repatriated under the

Native American Graves Protection and Repatriation Act. FWS offered a reburial

site at Cherry Valley National Wildlife Refuge, part of the Lenape National

Wildlife Refuge complex, in Stroudsburg, Pennsylvania. The agreement will guide

the reburial process and the future operational relationship between the Refuge and

the Tribes, who share ancestral ties to the region.

C. NPS

1. Acadia National Park

NPS been involved in a multi-year project with the Wabanaki Nations of Maine on

traditional gathering of sweetgrass within Acadia National Park. The

interdisciplinary work focuses on Wabanaki stewardship approaches through

centuries of learned Indigenous knowledge and cultural protocols for Indigenous

sovereignty within natural and cultural resource management on ancestral lands.

The project, which aims to provide a template of culturally appropriate engagement

between Native American gatherers and National Parks, has shown how effective

incorporating Indigenous knowledge can be; the positive impacts plant-gathering

Final Report on Co-Stewardship Authorities

App. III-3

can have on plant colonies when done in a culturally appropriate traditional manner;

and the benefits of including traditional knowledge at the initial stages of a project.

2. Statue of Liberty National Monument and Ellis Island

The Statue of Liberty National Monument has cooperative agreements in place with

the Stockbridge-Munsee Community Band of Mohicans, the Delaware Tribe of

Indians, and the Delaware Nation. The agreements were critical pieces of the park’s

efforts to greatly improve visitor experiences on Liberty Island and Ellis Island. In

addition to increasing access to park areas and improving security screening, Tribal

consultation resulted in a project to beautify Liberty Island through plantings and

landscape changes.

3. Mount Rainier National Park

NPS is currently collaborating with the Nisqually Tribe to publish a report on the

results of five years of traditional plant-gathering research on three species

traditionally harvested by Nisqually tribal members on Mount Rainier,

Washington. It will offer summary considerations and recommendations for

administering traditional plant gathering activities in a manner that minimizes

impact to harvested plants and associated plant communities. Furthermore,

consultation with the Cowlitz Indian Tribe and Yakama Nation helped develop the

Ohanapecosh Visitor Center exhibits to give visitors historical and contemporary

context of the traditionally associated Taidnapam.