Sovereign-to-Sovereign Cooperative Agreements

Many tribal nations maintain a continuing connection to the lands, waters, and other natural resources within what is now the United States. In fact, by virtue of the federal government’s efforts to remove, replace, and consolidate tribal nations within reservations, a single, present-day federally recognized Indian tribe is often comprised of multiple tribal nations, each with their own histories and connections across many landscapes. Those histories and connections span back to time immemorial and provide the foundation for many tribal nations seeking to strengthen their engagement with the management of those lands.

While original and ongoing tribal connections to lands and natural resources are a critical starting point for understanding tribal co-management, the relationship between tribal nations and the federal government—both its historical underpinnings and its modern context—is also central. Prior to the founding of the United States, interactions between tribal nations and those arriving on the continent from elsewhere were shaped by various approaches; some violent and militaristic in nature, others rooted in negotiation and the pursuit of mutual interests. Various legal concepts, some familiar to Native nations and others imported by European colonists, formed the earliest agreements. By 1776, engagement with tribal nations by the newly formed United States came to rely on these traditions, including the use of treaties as an internationally recognized method of reaching and documenting agreements between sovereign nations. The first treaty entered by the United States, for example, was in 1778, which provided the first legal basis for the new country to engage with the Delaware (Lenape) Nation. Thereafter, in 1789 the U.S. Constitution confirmed the importance of treaties with Tribal Nations as solemn bargains that today remain the “supreme law of the Land.” Art. VI, cl. 2 (“Supremacy Clause”).

As the United States developed its own legal system, its treaty promises to tribal nations provided the basis for defining the status of tribal land rights under federal law. In some of its earliest decisions, for example, the United States Supreme Court relied upon the mutual promises made between the United States and the Cherokee Nation to hold that, under federal law, tribal nations would be considered “domestic dependent nations” to which the United States owed certain duties of protection and alliance. Those duties evolved to become what today are known as trust obligations. The corresponding trust relationship between the federal government and tribal nations forms the core of the United States’ Indian policies in general, regardless of any other more specifically defined treaty relationship with a particular tribal nation.

Over time, treaties would also be used by the federal government to dispossess nearly all of what is now the continental United States from its Indigenous owners and isolate those tribal nations on smaller reservations, often far removed from their original homelands. Through that process, however, tribal nations often secured treaty promises and accompanying reserved rights to protect their continuing land uses and even access to ceded lands.

Through the imposition of its laws, military force, coercion, and sometimes fraud, the federal government relied on treaties to acquire legal title from tribal nations and, by the mid-1800s, could lay claim to an immense land resource. Across the late nineteenth and early twentieth centuries the U.S. then pursued various policies intended to promote the destruction of tribal nations in favor of expanding non-Indigenous settlement. Among these policies, the federal government actively divested itself, such as through grants to private interests like railroads and homesteaders, of much of the land it had acquired. The admission of additional states to the union, particularly in the western United States, also came with grants of previously federal lands. In the wake of these efforts, concern grew over the need to conserve and protect for future use at least some of the nation’s remaining federal lands. In response, Congress and the President began reserving some federal lands from further divestment, actions that led to the creation of forest reserves, national monuments, national parks, and wildlife refuges from the remaining federally owned lands, as well as the maintenance of other unclaimed lands by the United States as public domain. These measures would ensure generations of Americans could enjoy federal public lands, which have come to define important parts of the national character and identity.

A similar, if time-condensed version of the U.S. story of settler-colonial invasion and Indigenous nation dispossession and displacement played out in what would become Alaska. There, although no treaties were entered between the United States and Alaska Natives, the federal government terminated Indigenous title to lands and resources through congressional legislation in 1970. Subsequent legislation directed the process for allocating lands to tribal, state, and private interests, with the U.S. reserving a significant portion of the state as public lands to be managed by the various federal agencies, including the United States Forest Service (USFS), Bureau of Land Management (BLM), National Park Service (NPS), or United States Fish and Wildlife Service (USFWS). Regardless, Alaska Natives retain a significant and ancient connection to the lands, waters, and resources on which they and their ancestors have relied since time immemorial even though many of those areas are now federally owned and managed by U.S. agencies.

Given the unique legal framework in Alaska, the opportunities for and obstacles to tribal co-management hinge upon the underlying principles of Federal Indian Law, such as the trust relationship and the sovereign status of Indian nations described above, and the singular context of Alaska, including the historical evolution and treatment of tribal rights by Congress in the Alaska Native Claims Settlement Act (ANCSA) and the Alaska National Interest Lands Claims Act (ANILCA) as well as the federal-state and tribal-state relationships. These two Alaska-specific statutes provide different opportunities for co-management of federal lands and resources in Alaska, including calling upon federal agencies responsible for those lands and resources to fulfill duties related to so-called subsistence resources as set forth in Title VIII of ANILCA. Those provisions authorize additional cooperative frameworks and require a more detailed assessment of federal actions that may impact subsistence activities. Still, however, for a variety of reasons—some specific to Alaska, some more general—tribal co-management remains challenging across Alaska’s federal lands.

Tribal co-management reflects an interest on the part of the U.S. and tribal nations themselves to restore and rebuild Indigenous agency in areas where tribal nations retain significant interests, be they cultural, historical, legal, or communal. The work of co-management cannot be understood outside of its historical context and an acknowledgement that the public lands now central to America’s shared national heritage originated from the dispossession and displacement of Indigenous peoples. In addition, the legal context for tribal co-management is similarly rooted in long-standing recognition of treaty-reserved rights and the federal government’s unique obligations to tribal nations, both of which set the interests of tribal nations apart from others in terms of how public lands are managed. Ideally, tribal co-management may present a meaningful opportunity for the U.S. to reckon with and find lasting and real ways to redeem its complicated legacy with Indigenous nations.

In addition, Indigenous nations often have millennia of experience living on and from the lands in question. The depth of experience and length of observation results in unique and invaluable understandings of natural systems and processes. Thus, Indigenous participation in land management should be approached with respect and reverence. Co-management offers a way to elevate this historical legacy and empower relationships between all land users and managers with the common goal of creating more just and durable solutions to the complex and numerous land management issues facing today’s world. Done carefully, with respect and an eye towards building sustainable relationships, co-management offers the chance for improved resource management that benefits from, rather than excludes, Indigenous insights gained from connections with these places that span millennia.

Tribal nations and agencies interested in pursuing co-management of federal public lands can rely on a range of authorities to support their proposals. While an exhaustive review of each potential avenue is beyond the scope of these FAQs, the broadest legal foundations of tribal co-management are rooted in treaties and the federal government’s trust duties to tribal nations. Those two foundations enable cooperative relationships between the U.S. and Indigenous nations within the U.S. When applied to federal land management, treaties and federal trust obligations call for meaningful and timely government-to-government engagement rooted in various consultation obligations across all federal agencies. Tribal co-management relies on these foundations and encompasses a broad range of specific cooperative management activities.

As described above the Supremacy Clause of the U.S. constitution confirms the preeminent status of treaties made by the federal government. Because of their constitutional importance and in recognition of the language, cultural, and other barriers to ensuring a fair exchange across the historical federal-tribal divide, federal courts have developed specific rules for interpreting treaties with tribal nations. These rules, referred to as the canons of construction or the “Indian canons,” help ensure modern protection for and enforcement of historical treaty guarantees by mandating that (1) any ambiguities in the treaty language are interpreted to the benefit of the tribal party; (2) treaties are liberally construed in favor of tribal interests; and (3) those terms are interpreted as the tribes would have understood it at the time the treaty was signed.

The United States Supreme Court repeatedly applies these rules to protect treaty reserved rights, including off-reservation fishing by members of tribal nations in the Pacific Northwest and, most recently, for off reservation hunting by members of the Crow Nation. Relying on the Court’s precedent regarding tribal fishing rights in the Northwest, federal district court judges in the late 1960s (in Oregon) and early 1970s (in Washington) interpreted locally relevant treaties to require that tribal nations be entitled to up to half of the harvest of salmon from the region’s streams. In doing so, the courts required, and then helped implement, a management regime for those salmon fisheries, whereby tribal nations share in the associated responsibilities with their federal and state counterparts. The result was a groundbreaking co-management framework that remains critical for ensuring the survival of endangered fisheries to the present day. These half-century old co-management initiatives depended upon the status of treaties under federal law, the rights reserved by tribal nations in those agreements, and the judicial interpretation and enforcement of those promises according to the well-established canons of construction.

While treaty rights in and of themselves form a critical basis for securing tribal co-management rights and relationships, the federal government’s trust duties toward tribal nations also informs and supports a more collaborative arrangement in the management of federal public lands. In issuing their joint secretarial order (“S.O. 3403") in November 2021, for example, the Secretaries of Interior and Agriculture relied upon those duties when directing their respective agencies to take additional measures to develop co-stewardship arrangements with tribal nations:

In managing Federal lands and waters, the Departments are charged with the highest trust responsibility to protect Tribal interests and further the nation-to-nation relationship with Tribes. The Departments recognize and affirm that the United States’ trust and treaty obligations are an integral part of each Department’s responsibilities in managing Federal lands. Tribal consultation and collaboration must be implemented as components of, or in addition to, Federal land management priorities and direction for recreation, range, timber, energy production, and other uses, and conservation of wilderness, refuges, watersheds, wildlife habitat, and other values. Further, in honoring these obligations, the Departments will benefit by incorporating Tribal expertise and Indigenous knowledge into Federal land and resources management.

As directed by that Order, both tribal consultation and collaboration are to be integrated into the management of federal public lands by the appropriate agencies as each of those approaches would better serve and fulfill the federal government’s trust obligations. Although the requirement to consult and collaborate regarding tribal co-stewardship may differ where a treaty or other legal mandate does not require such co-management (see “Co-Stewardship v. Co-Management” below), the federal trust responsibility provides an independent basis for pursuing improved federal-tribal collaboration.

As described above, the history of federal public lands is directly tied to and depends upon the broader history of the federal government’s relationship with tribal nations. Despite those intertwined histories, however, the legal regime applicable to the management of federal public lands evolved largely without regard for tribal nations and their long-standing interests in caring for and accessing those lands. Instead, federal law sought to categorize these lands according to other, non-Indigenous values and charge various federal agencies with specific management objectives depending upon those categories.

With regard to forests, for example, although the first forest lands were reserved pursuant to executive action, Congress passed what would become known as the Forest Service Organic Act in 1897, which authorized the organization of these various forest reserves into a more coherent system of management with some overarching guidance to manage for timber, water, and protection of the forests. Over time, the United States Forest Service (USFS) assumed these responsibilities and Congress eventually refined its mandate through passage of the Multiple-Use, Sustained-Yield Act in 1960, and the National Forest Management Act in 1976. Based on these congressional authorities and objectives, the USFS, with oversight from the Secretary of Agriculture, develops regulations and carries out the day-to-day functions of managing the nation’s forest lands.

Like the USFS, the Bureau of Land Management (BLM), which is housed in the Department of the Interior, oversees lands for which Congress has established a goal of ensuring multiple uses and sustained yield or productivity. The BLM’s directives come primarily from the Federal Land Policy and Management Act (FLPMA), which Congress enacted in 1976, and the agency is predominantly responsible for managing grazing and mineral resources across its portion of the federal estate. Just as with the USFS, the BLM, through the Secretary of the Interior, has developed regulatory and policy guidance to carry out Congress’ direction in FLPMA.

Two other federal land management agencies, the National Park Service (NPS) and US Fish and Wildlife Service (USFWS), are also central to tribal co-management issues. Unlike the USFS and BLM, the NPS and USFWS are charged with narrower duties and manage their federal lands and resources in service of much more specific objectives. In the case of the NPS, for example, Congress enacted its original charge in 1916 and mandated that, as an agency, it “conserve the scenery and the natural and historic objects and the wildlife [of national parks designated by Congress]… and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” In addition to these general orders, however, when designating a specific national park, Congress can also direct the NPS to take special care of particular resources and objectives in that park.

Similarly, the mission of the USFWS is narrowly tailored to the protection and preservation of the nation’s biotic resources and, in the context of land and resource management, the agency was charged by Congress with the oversight of the nation’s refuge system through the Refuge Administration Act, which was enacted in 1966 as part of the Endangered Species Act. Congress later refined its charge to the USFWS through the enactment of the National Wildlife Refuge System Improvement Act (NWRSIA) of 1997. Like the more specific and directed purposes of the NPS, NWRSIA established system-wide standards for the management of wildlife refuges by the USFWS and sought to ensure that the agency’s oversight would be compatible with the overall mission of wildlife protection and restoration.

Each of these federal land management agencies has a unique history, organic act, structure, and applicable legal and regulatory framework, but they share some basic practices. For example, according to Professor Robert Fischman, all of their current organic legislation shares five elements: purpose statements, designated uses, comprehensive planning, substantive management criteria, and public participation. While each of their organic acts differ in terms of those specifics, the components Fischman lists are a common framework that governs the work of each of the agencies and contributes to the importance of comprehensive planning in the context of tribal co-management.

In addition to those common elements, the organic acts of all federal land management agencies are mostly silent regarding tribal nations and their interests in the lands those agencies are charged with managing. While some specific provisions at least acknowledge tribal nations as interested parties, such as a subsection of FLPMA that requires BLM to consider how its plans might be consistent with those of neighboring tribes, Congress gave little, if any, consideration to the historical context of public lands or the continuing tribal connections to those lands when creating and directing these agencies, even in recent decades. As a result, department regulations, and each agency’s policies, guidance, and practices have long sidelined tribal concerns, which contributes to agency cultures that tend to view engagement with tribal nations, from co-management to consultation, as adjacent—if not anathema—to the agency’s “real” management mission directed by Congress.

On top of those agency-specific organic acts and congressional mandates, federal land management agencies must also adhere to cross-cutting federal laws, like the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and the Administrative Procedures Act (APA). These three laws (among other, less prevalent standards), prescribe substantive or procedural requirements that the agencies must fulfill while carrying out their management activities pursuant to their organic acts. In the case of NEPA, for example, each agency must assess the potential environmental consequences of particular actions and, if they determine that an action will have a significant effect on the human environment, they must more carefully consider that action, along with any alternatives. Like NEPA, the APA aims to ensure agency decisions are well-reasoned, consistent with applicable law, and not arbitrary or capricious. NEPA also provides a legal cause of action for those seeking to challenge certain agency actions.

The complex legal, regulatory, and policy setting in which the management of public lands takes place contributes to the challenges of pursuing effective tribal co-management arrangements. Nonetheless, the work of tribal nations in support of these arrangements has meaningfully shifted the direction given to federal agencies by Executive branch officials, including the President, who has incorporated co-management into recent designations of national monuments, and the Secretaries of Agriculture and Interior, who have issued new guidance promoting co-stewardship.

Secretarial Order 3403 was issued jointly by the Secretaries of Interior and Agriculture, who are responsible for overseeing the majority of the federal land management agencies, including the Bureau of Land Management (BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (USFWS), the National Park Service (NPS), and the Forest Service (USFS). In 2022, the Secretary of Commerce also signed on to the Order, bringing the National Oceanographic and Atmospheric Administration (NOAA) and its office of the National Marine Fisheries Service (NMFS), within the Order’s mandates. The Order aims to ensure that the work of these agencies considers and protects the interests of tribal nations, honors the treaty reserved rights of those nations, and better fulfills the federal government’s trust duties. In addition, the Order acknowledges the benefit of Tribal expertise or Indigenous knowledge, which the Order encourages relevant agencies to incorporate into their management work.

To fulfill these purposes, the Order “directs” relevant agencies and bureaus within each department to take certain measures, including:

a. Ensure that all decisions by the Departments relating to Federal stewardship of Federal lands, waters, and wildlife under their jurisdiction include consideration of how to safeguard the interests of any Indian Tribes such decisions may affect; b. Make agreements with Indian Tribes to collaborate in the co-stewardship of Federal lands and waters under the Departments’ jurisdiction, including for wildlife and its habitat; [and] c. Identify and support Tribal opportunities to consolidate Tribal homelands and empower Tribal stewardship of those resources; …

Rather than discrete direction to each agency, however, the Order draws on broader principles of the trust and treaty relationship to encourage and guide how agencies carry out these duties within the context of their specific ambit. These “Principles of Implementation,” set forth in the third section of the Order, begin with a recognition of the unique standing of tribal nations and the Native Hawaiian community as the basis for direct engagement with federal agencies and require that agencies “will collaborate with Indian tribes to ensure that Tribal governments play an integral role in decision making related to the management of Federal lands and waters through consultation, capacity building, and other means consistent with applicable authority.” Additional principles include timely consultation, the consideration and incorporation of tribal land use and management plans into federal practices, joint educational efforts, the incorporation of tribal knowledge into federal management, and the incorporation of appropriate dispute resolution procedures as well. A final principle directly incorporates non-federally recognized tribal groups into the terms of the Order where such groups may have been included or authorized for such treatment by Congress.

The heart of the Order is its direction that the agencies “endeavor to engage in co-stewardship where Federal lands or waters, including wildlife and its habitat, are located within or adjacent to a federally recognized Indian Tribe’s reservation, where federally recognized Indian Tribes have subsistence or other rights or interests in non-adjacent Federal lands or waters, or where requested by a federally recognized Indian Tribe.” As detailed in the next question and answer, the use of the term “co-stewardship” in lieu of “co-management” is meaningful; however, this statement of the objective represents the first step in a critical and long overdue reset of agency cultures to better address and incorporate relevant tribal interests. In service of this endeavor, both the Department of Interior and the Department of Agriculture will:

a. Promote the use of collaborative agreements and/or provisions in land management plans consistent with the Department’s obligations under existing law; b. Develop and implement, whenever possible, employee performance review standards that evaluate progress toward meeting the objectives and goals of this Order, including success toward developing new collaborative stewardship agreements and enhancing existing ones; c. Coordinate and cooperate on co-stewardship efforts and initiatives between the Departments; d. 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 e. Evaluate and update Departmental Manuals, handbooks, or other guidance documents for consistency with this Order.

Furthermore, the Order includes a catch-all provision making clear that in the limited instances where co-stewardship may not be permitted by law, “the Departments will give consideration and deference to Tribal proposals, recommendations, and knowledge that affect management decisions on such lands wherever possible.”

Finally, the Order also promotes opportunities for “tribal stewardship” and commits the Departments to supporting the efforts of tribal nations to reacquire lands within reservations and to put lands into trust status for the protection of various tribal interests and values.

Since its issuance in November 2021, legal counsel for the signatory departments issued the legal reports called for in S.O. 3403. In addition, progress reports from the relevant agencies and bureaus have helped clarify some the ways a co-stewardship relationship has been achieved in a variety of contexts. In addition, as detailed in Table 1, below, new agency policies and guidance, issued in response to the Order, have provided a firmer foundation for agency officials to ground their management decisions.

Beyond those measurable accomplishments, however, the broader impact of the order remains a work in progress and difficult to assess. Rooting implementation activities in a deeper recognition of tribal nations and their connections to public lands marks a new direction from prior practices, which emanated from a legacy of divesting lands from tribal use and occupation, and the exclusion of tribal perspectives. Measuring success for this goal will require cultivating strong, long-term relationships among federal and tribal partners that can build and support the regular and meaningful interactions contemplated by the Order and necessary to achieve fruitful and effective cooperative arrangements and on-the-ground implementation.

Nonetheless, the Order marks an important turning point in how the most prominent federal land management agencies are being directed to carry out their duties. Although a number of executive orders, presidential memoranda, and secretarial orders have made clear the federal government’s trust duties and committed to improved consultation and government-to-government relations, this Order calls on agencies to integrate those principles into work across the spectrum of their public land management duties. In doing so, by promoting the use of tribal knowledge and directing federal agencies to rely on S.O. 3403’s “principles of implementation” in the stewardship of federal resources, the Order opens the door to ideally a more inclusive and equitable era of federal public lands management. And, given the range of existing legal authorities on which agencies can already rely to better incorporate tribal nations into management strategies, the Order provides the necessary direction to take advantage of those avenues.

By its own terms, Secretarial Order 3403 “remain[s] in effect until its provisions are implemented and completed, or until it is amended, superseded, or revoked.” Thus, its direction to agencies and employees within the Interior, Agriculture, and Commerce Departments remains valid even after a change in departmental or political leadership. Nonetheless, a future Secretary of any of those departments could conceivably withdraw from the joint order and issue different or conflicting direction to the agencies under their purview. Such a change would establish a different policy for that Department but would not necessarily affect then-existing collaborative arrangements between its agencies and tribal nations.

The legal roots of the term “co-management” date back to the treaty-based fishing rights cases in the Pacific Northwest, where the federal judiciary compelled a more cooperative approach to fisheries management in the region. Despite that half century of use, however, the precise definition of co-management and its various connotations still cause confusion. In what is now Alaska, for example, Congress specifically permitted co-management through its authorization of “cooperative agreements” and “co-management of subsistence use by Alaska Natives” in the Marine Mammal Protection Act of 1972, but the term was not defined. In 2016, the Secretary of the Interior issued an order urging collaborative arrangements between Interior agencies and tribal nations but specifically disclaimed any authority for co-management. Thus, from a federal perspective, the precise activities and limits of co-management have been undefined or unclear.

This background provides some context for the use of the term “co-stewardship” in S.O. 3403. The Departments of Interior and Agriculture distinguish between the two terms, viewing co-management in a narrower fashion and a management approach that is required by law. The Department of Interior’s Office of the Solicitor explains its rationale:

Co-management narrowly refers to collaborative or cooperative stewardship arrangements that are undertaken pursuant to Federal authority that requires the delegation of some 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.

Though not defined in S.O. 3403, tribal “co-stewardship” is generally viewed as a more inclusive approach—an umbrella-like term that captures a wider scope of cooperative and collaborative relationships and models of shared decision-making. To that point, the Bureau of Land Management (BLM) and National Park Service (NPS) include co-management under their umbrella conception of co-stewardship (see Table 1).

It is easy to get lost in all this splicing and terminology and that is why it is important to focus on the Order’s “principles of implementation.” These can be viewed as essential building blocks of co-stewardship “to ensure that Tribal governments play an integral role in decision making related to the management of Federal lands and waters…”.

S.O. 3403 directs federal public land agencies to “[m]ake agreements with Indian Tribes to collaborate in the co-stewardship of Federal lands and waters under the Departments’ jurisdiction, including for wildlife and its habitat.” Directing agencies to identify opportunities for co-stewardship and to then enter into such agreements is a pro-active and affirmative command, and at least an improvement over other existing methods of tribal engagement and consultation that often place tribes in a reactive position by seeking their input when the management decision is all but officially inked.

This direction is also purposeful and tied to the fundamental objective articulated in the Order to recognize and better respect tribal sovereignty in federal public land management, by ensuring that federal agencies:

[A]re managing Federal lands and waters in a manner that seeks to protect the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes including the Native Hawaiian Community; that such management is consistent with the nation-to-nation relationship between the United States and federally recognized Indian Tribes; and, that such management fulfills the United States’ unique trust obligation to federally recognized Indian Tribes and their citizens.

According to S.O. 3403, tribal co-stewardship is one way to achieve the nation’s treaty and trust obligations to tribes and to harmonize these responsibilities with the laws governing federal public lands. The key connection here is to use co-stewardship to “[e]nsure that all decisions” made by agencies meaningfully consider “how to safeguard the interests of any Indian Tribes such decisions may affect.”

Table 1, found below, provides an overview of how the Office of Solicitor, the USDA’s Office of General Counsel (OGC), and four of the federal public land agencies interpret tribal co-stewardship. S.O. 3403 and the agency guidance issued pursuant to it make clear that co-stewardship is to apply across a broad spectrum of decisions and management actions taken by agencies, from higher-level land planning decisions to lower-level projects, activities, and implementation actions.

The term “stewardship” is also construed broadly, encompassing “activities relating to management, conservation, and preservation of Federal lands and waters, including wildlife and its habitat.” The types of activities that can be co-stewarded will depend on the context of a particular situation, the interests of the relevant tribal nation(s), and the statutory mandate provided to each federal land agency by Congress, such as the broad and discretionary multiple use mandates provided to the USFS and BLM. For the latter, these include renewable and nonrenewable resources, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” The range of actions to be co-stewarded are narrower for the dominant-use, preservation-oriented National Park System and the “tiered-use” conservation system established for the National Wildlife Refuges. But here too are multiple opportunities as, even within those narrower mandates, S.O. 3403 requires agencies to consider the principles of implementation in their own work and engage tribal partners in exploring ways to enable co-stewardship to fulfill those mandates.

Though it will be applied to, and inform discrete projects on the ground, S.O. 3403 presents co-stewardship as a bridge to something far bigger, more substantive, and longer-lasting—a tool to foster more meaningful relationships and shared decision-making between tribal nations and the federal government. As such, co-stewardship encourages broad and creative approaches to the management and governance of federal public lands and resources and the Order calls upon federal agencies to rethink nearly all aspects of their work, including how decisions get made, projects get started, knowledge is shared, conflicts get resolved, and so on. That work is beginning to take hold and federal land agencies have begun identifying several ways to formalize and implement these new arrangements now being called S2S agreements, from familiar cooperative or self-governance agreements and memoranda of understanding to new “mutually acceptable engagement protocols.”

Notes and Sources

This is an important question as federal agencies and tribes begin thinking about how best to execute and implement their agreements. S.O. 3403 is itself based on numerous legal authorities (see S.O. 3403, Section 2) and the federal government’s treaty and trust obligations. Indeed, S.O. 3403 serves to more effectively meet these obligations and to protect sovereign tribal rights and interests on federal public lands.

In addition to the broad authorities referenced in S.O. 3403, each federal public land agency has specific legal authorities that can be used to both sanction and execute co-stewardship agreements. These are best viewed as providing a menu of options that can be used—either a la carte or buffet-style—to formalize collaborative arrangements and/or get work going on the ground.

The appropriate legal mechanism depends on the type of work, the context of the relationship between the tribal nation and federal agency, and the decision-making protocol established in a particular co-stewardship relationship or agreement. For example, if a tribal nation is interested in taking on a co-stewardship role for a forestry project, both the Tribal Forest Protection Act (TFPA) and BLM’s stewardship contracting authority provide a legal basis for engaging that role. The nature of the work and the details of the project might dictate the particular legal avenue. Both statutes are limited to implementing discrete projects, but the TFPA applies only to projects located on federal lands that are bordering or adjacent to tribal lands, among other restrictions. On the other hand, Section 307(b) of FLPMA, which authorizes the BLM to “enter into contracts and cooperative agreements involving the management, protection, development, and sale of public lands,” provides much broader authority for a federal-tribal co-stewardship arrangement.

The answer is going to get a bit technical so we’d like to first start with a general observation and take-home point: notwithstanding the legal limitations of tribal co-stewardship, federal public land agencies “retain significant latitude to use agreements with outside partners to support their government operations without inappropriate transfers of agency authority.” This language—agencies having significant latitude to make co-stewardship agreements and other arrangements—is used by the Solicitor of the Department of the Interior and Department of Agriculture’s Office of General Counsel in their guidance in implementing S.O. 3403.

Along with that “significant latitude,” it is also important to make clear that tribal co-stewardship, like tribal co-management, is about the sharing of management and decision-making between two or more sovereign governments. A complete and unqualified delegation of authority to tribes, in terms of transferring ownership or decision-making authority, is best characterized as tribal management and not co-stewardship or co-management. Table 2 (below) summarizes some of the basic aspects of tribal co-management and co-stewardship.

That said, when it comes to the sharing of management and decision-making, federal agencies are indeed limited by constitutional and statutory requirements. The most fundamental of these requirements is the so-called “subdelegation doctrine,” which limits the ability of executive agencies to delegate to other actors the powers given to them by Congress. The subdelegation doctrine basically forbids federal agencies from delegating final decision-making authority to another party, meaning that federal delegations of authority may be permissible so long as the federal official retains the authority for final review and approval (or denial). Closely related to the subdelegation issue is the determination of what activities are “inherently governmental functions [or activities],” which, given their inherently federal nature, cannot be delegated to non-federal actors.

Historically, federal public land agencies have interpreted the subdelegation doctrine as a significant limitation on their ability to work with tribal nations and taken positions that have unnecessarily restricted the types of activities and management actions that could be co-managed with tribes. That problematic history of public land agencies reflexively invoking an oversimplified interpretation of the doctrine as a way to avoid tribal proposals and defend a dysfunctional status quo remains one of the primary obstacles to implementing and expanding tribal co-management.

Despite those challenges, the Department of Interior Solicitor’s report on tribal co-stewardship and S.O. 3403 brings much needed clarification to the practical implications of these constitutional and statutory restrictions. The report provides some basic ground rules and principles that will resonate with both federal public land managers and tribal officials. First, the Solicitor emphasizes that the fundamental purpose served by the subdelegation doctrine is to ensure the arrangement supports the national interest, comports with an agency’s statutory mandate, and avoids inappropriately subordinating the role of federal agencies to parochial interests. Second, the Report reiterates that tribal nations are different than private entities when it comes to subdelegations of authority, and, in light of their unique government-to-government relationship with tribal nations, federal agencies have additional flexibility with which to consider or jointly develop tribal proposals.

The Solicitor also provides two helpful examples of “inherently governmental functions”: determining the operating hours of a park or refuge and determining to whom a parcel of federal land might be sold; both of which cannot be delegated outside of the appropriate federal agency. There are others, of course, from managing agency budgets to making personnel decisions and other clearly core governmental functions that agencies cannot delegate to another entity. But, importantly, the Report clarifies the “significant latitude” outside of these narrow, governmental functions that agencies can rely on to engage in meaningful tribal co-stewardship.

There are some positive developments in this regard. S.O. 3403 states that “[w]here co-stewardship is not permitted by law, the Departments will give consideration and deference to Tribal proposals, recommendations, and knowledge that affect management decisions on such lands wherever possible.” Neither the Order nor agency guidance resulting from it explain where co-stewardship may not apply, but both the Office of the Solicitor and Office of General Council (OGC) call for agency deference to tribal proposals and recommendations in such situations. The Solicitor’s Report further explains that the requirement for agencies to retain final decision making authority does not prevent tribes from being involved in an agency’s decision making process. In fact, the Report even suggests that, in some instances, federal approvals may be conditioned upon consent from other governmental partners, including tribal nations.

BLM guidance on S.O. 3403 further elaborates on the agency’s “substantial leeway to involve tribes in its decision-making process,” and that in some circumstances, “it is also acceptable to make a decision to approve an action contingent on the concurrence of a Tribe as long as there is a reasonable connection between the Tribe’s jurisdiction, interests, and citizens and the BLM decision.” This guidance opens multiple options for meaningful co-stewardship work by tribes and the “contingent on tribal concurrence” provision could, in some instances, provide important assurances to tribes that allow for meaningful changes in the traditional consultation-based paradigm of BLM engagement with tribes. Where the “reasonable connection” contemplated by the agency’s guidance exists, the BLM could condition a particular decision on reaching satisfactory agreement with a tribal nation. Critically, as noted above, even where a BLM decision is determined to be contingent on tribal concurrence, the decision itself would still remain a BLM decision, as the agency would retain final approval authority consistent with the principles of the subdelegation doctrine and guidance from the Solicitor.

The good news is that S.O. 3403 rather quickly spurred much needed clarification on the extent to which federal agencies can cooperate, collaborate and co-steward with tribes. It might sound rather trivial, or simply more bureaucracy and paperwork, but the guidance provides an important educational function and can be used and leveraged by tribal nations and public land managers in the future.

The agencies and bureaus within the Department of Interior have developed additional, agency-specific guidance pursuant to S.O. 3403. As discussed above, the Department’s Office of the Solicitor provided a much needed and insightful overview of the Order and how it can be implemented within Interior. The DOI also chartered two new departmental bodies to focus on issues related to implementation of the Order. In addition, pursuant to the reporting requirements set forth in S.O. 3403, Interior highlighted several collaborative agreements with tribes. All of the reported agreements were established and underway before promulgation of the Order and the report included the Alaska Migratory Bird Co-Management Council, management of Grand Portage National Monument and Isle Royale National Park, and management of Bears Ears National Monument. In addition to these and other cases, the Department reported thirteen other co-stewardship agreements with eighteen different tribes as of November 2022.

The USFS also reported its progress in 2022, stating that it had finalized eleven agreements with thirteen tribes and has more than 60 other agreements at different stages of review. Like Interior’s reporting, several cases highlighted by USFS were established or underway prior to S.O. 3403, and others are being done pursuant to pre-existing statutory authorities, such as the Tribal Forest Protection Act (TFPA).

There is reason to be cautiously optimistic about implementation of the Order thus far. The Government Accountability Office (GAO), for example, is studying progress in federal agency implementation of the Orde that will be detailed in a forthcoming report. The Congressional Research Service (CRS) has also recently issued a report focused on tribal co-management.

One concern is that federal agencies will use a rather limited set of pre-existing authorities, such as the TFPA or a narrow 638 contract, and view those limited steps as meeting the purposes and objectives of S.O. 3403. Such agreements are important and need to be used more broadly, but it’s also important to use the Order to co-create new decision-making and management models—to provide something more substantive and longer-lasting that just one discrete project or contract.

As detailed above, Secretarial Order 3403 does not create any new legal authority that tribal nations might call upon for co-management activities. Consistent with the structural checks and balances between Congress and the Executive Branch, the Secretaries who issued the Order did not set out to make new law. Instead, S.O. 3403 directs and guides officials and staff within the Departments of the Interior and Agriculture on how they are to carry out their duties within the bounds of already applicable laws. That’s why, for example, the legal authorities that can support tribal co-management or, as the Order refers to it, co-stewardship, are found in a range of other laws, from treaties and laws rooted in the trust responsibility, to the agencies’ various organic acts, to well-utilized federal compacting and contracting standards like Pub. L. 93-638. Both the Interior Solicitor’s Report (pages 11-53) and the Agriculture General Counsel’s Report (pages 7-23) include helpful summaries of these applicable standards.

Each of the governmental entities covered by S.O. 3403 exercises considerable discretion to carry out its work within the scope of these applicable standards. S.O. 3403 aims to channel that discretion into decisions and approaches that align with the Order’s principles of implementation and invigorate a new era of federal, tribal, and co-stewardship of the nation’s lands and resources. Building on that charge, federal agencies have developed their own, agency-specific policies to further implement and support the Order’s mandate. But, all of these agencies still retain discretion to determine how best to carry out their congressionally mandated missions. Thus, even though agency- and Department-level guidance might support tribal priorities, those priorities may still be frustrated by federal decision-makers interpreting applicable laws or regulations to limit their ability to engage in co-stewardship.

The nature of S.O. 3403 as a statement of Departmental priorities, objectives, expectations, and tasks and the importance of agency discretion both inform how tribal nations could strategically employ the Order in service of their goals. For example, it is unlikely that S.O. 3403 could be relied upon as a legally enforceable and binding commitment on the part of both Departments to approve every request from a tribal nation to engage in co-stewardship. In addition, the Order does not—and, given the number of different agencies and bureaus it covers, could not—provide precise guidance for every federal decision-maker to answer each inquiry or proposal that may arise. Instead, the Order aims to cultivate a new paradigm for making those decisions by meaningfully incorporating and empowering tribal input, partners, and knowledge.

With that basic framework as a starting point, tribal nations and their allies are likely to be in a better position to leverage S.O. 3403 in service of their priorities. But, given the diversity of tribal nations and their priorities, the myriad contexts in which each priority or proposal arises, and the relationships that each nation may already enjoy with their federal partners, there can be no single or “right” strategy for using S.O. 3403. As a tribal nation weighs the benefits of co-management or co-stewardship, however, the following considerations may be helpful:

 

1. What is the ask? The use and impact of S.O. 3403 may depend on what a tribal nation ultimately seeks to achieve. If the goal is the return of federal lands to tribal control, then the federal or co-stewardship provisions of the Order are likely irrelevant, and focus should turn to the Order’s final section regarding tribal stewardship. If, on the other hand, a tribal nation is interested in having a greater say in federal management of a particular area of public land or taking on some discrete projects, then other parts of the Order may be useful. Finally, if the goal is more general, like improving relations with a local federal land management agency, the Order may be useful for its principles of implementation or purposes as well. The nature of relations with federal land management agencies may preclude a tribal nation from making a specific request or proposal, but using the provisions of the Order to communicate about a preferred outcome, or series of results, may improve relations, help define strategies for achieving related goals, and at a minimum allow federal agencies to better understand what is important to the tribe.
2. Who is the agency? As noted above, each federal land management agency is subject to its own organic act, legal standards, regulatory regime, and policy guidance. Identifying and defining which agency or agencies might be involved can improve not only communication, but also strategic decision-making. For example, the narrower purposes for which the National Park Service or U.S. Fish and Wildlife Service must manage their lands are fundamentally different from the broader multiple-use, sustained yield mandates of the BLM and USFS. Even between the BLM and USFS, their organic legislation, subsequent congressional mandates, and regulatory criteria make each unique in its approach to carrying out those broad mandates. Thus, identifying the agency or agencies with the proper authority to consider and authorize a tribal proposal is likely a critical first step. Some tribal proposals may be better made above an agency, such as directly to Departmental officials (like the Secretary of the Interior), or routed through sister agencies, such as the Bureau of Indian Affairs.
3. What are the agency’s relevant legal authorities? As a result of S.O. 3403, tribal nations now have some additional resources to call upon to support their work with federal land management agencies. For example, the Interior Solicitor’s report generated pursuant to the Order identifies relevant authorities for each agency within the Department of the Interior that can be relied upon to support tribal co-stewardship efforts. That report begins with how more general federal authorities, such as treaty-reserved rights or the National Environmental Policy Act of 1969 (NEPA), might be relevant. The Report then proceeds to top-down guidance applicable Department-wide, such as Secretarial Orders or Departmental Manuals, and then details the authorities for each Interior agency and bureau. The Department of Agriculture’s General Counsel issued a similar report with complementary authorities for agencies in that Department. Those reports can be useful starting points for identifying the legal authorities relevant to either a shared priority in general, or the federal land management agency in particular, with which a tribal nation is working. Stepping down from those statutory authorities, it may be useful to review the agency’s implementing regulations and, also because of S.O. 3403, many agencies have developed additional policies and guidance for implementing the Order.
4. What standards (if any) are applicable to the proposed activity or location? In addition to the applicable legal standards, a proposal from a tribal nation may implicate existing land management standards that could influence an agency’s consideration of the proposal. For example, if a tribal nation is interested in conducting certain activities within a national forest, that area is likely to be covered by an existing forest plan governing how the USFS will manage the area. The plan’s components may set forth overarching standards or desired conditions relevant to the tribal nation’s proposal and may also anticipate types of uses or activities in particular areas that could also influence how the USFS views the request. Below that most general level of forest plan, there may also be more specific plan documents addressing transportation, road maintenance, or special use areas that might also be relevant. Finally, there may be site-specific conditions or commitments, such as timber contracts, which could also affect how the agency reviews and works with a tribal proposal. Like the relevant legal authorities described in the previous paragraph, therefore, this planning framework may also be useful to consider and anticipate as a consideration by a federal land management agency in the context of a tribal co-stewardship proposal.

Even before S.O. 3403, federal land agencies had the authority and tools necessary to enable different forms of tribal co-management on public lands. Importantly, however, S.O. 3403 makes such bridge-building a priority and provides important leadership on the topic for agencies. As discussed above, the legal guidance prepared by the Solicitor and Office of General Counsel, along with agency-specific guidance on implementation of S.O. 3403, brings much needed clarification on the extent to which tribes can co-steward public lands and resources. The “significant latitude” recognized by the DOI Solicitor that is afforded to agencies in this space can serve to reassure and encourage managers in any bolder and more creative steps in the future, working with tribal nations every step of the way.

This website and repository may also help spread the word and provide a sense of what is possible in the co-stewardship arena, both for tribes and public land managers. Regardless, it offers certainty by describing the types of agreements being developed by the federal government in general. Building learning networks, such as that being developed in this online repository, is an important step in sharing knowledge, and cementing co-stewardship as a regular practice and viable mechanism across the different public land systems.

Likely the biggest obstacle to implementing co-stewardship is not based in law, such as restrictions on subdelegating authority. Rather, federal agency inertia and institutional cultures and norms that tend to perpetuate, as a matter of habit, reactionary, limited, and often dysfunctional methods of engagement with tribes continue to frustrate broad and meaningful tribal co-stewardship activities. These institutional and bureaucratic barriers can even impede federal employees seeking to carry-out co-stewardship proposals. S.O. 3403 provides strong, affirmative direction that those efforts, not the way things have been done in the past, are the appropriate approach for shared decision-making going forward.

Administrative discretion must be considered in this context. It is a root issue in the governance of federal public lands and resources. It varies, of course, but federal public land agencies often have considerable discretion in how they implement their legal mandates and responsibilities. This is especially so for the multiple-use missions of the USFS and BLM. For example, these agencies could use their planning platforms to meaningfully engage tribes and to provide substantive protections to tribal rights and interests on public lands that in turn help better achieve the policy and planning goals of the agency and general public. There remains much possibility in this regard, such as the BLM using its authority to designate areas of critical environmental concern to protect areas nominated by tribes, and to then provide substantive protections to these places. Alas, such flexibility and discretion has not yet been generally used in this fashion.

Another meaningful way to implement S.O. 3403 would be to ensure a timely review and revision of performance standards for agency personnel to institutionalize and incentivize co-stewardship and keep track of progress. S.O. 3403 states that Departments will “develop and implement, whenever possible, employee performance review standards that evaluate progress toward meeting the objectives and goals” of the Order. The BLM, NPS and FWS have committed to addressing implementation of the Order in their employee performance reviews. Each agency is doing this differently, and we have yet to learn the details, but it may signal an important shift in how agencies approach their obligations and measure progress.

Planning is a core feature of federal public lands law and management. All four federal public land agencies have planning mandates. These generally require the development of plans for each unit of public lands administered by an agency, such as Land and Resource Management Plans (forest plans) by the USFS, Resource Management Plans (RMPs) by the BLM, General Management Plans (GMPs) for the NPS, and Comprehensive Conservation Plans (CCPs) by the USFWS.

There are potential benefits and risks associated with public lands planning from a tribal perspective. On the benefit side, planning processes provide an essential way for tribal nations to affirmatively and pro-actively shape the vision and desired conditions of public lands. This is a key principle of tribal co-stewardship and can help ensure that project level work on public lands comports with an overarching vision that is collaboratively shaped and influenced by tribes.

Consider two scenarios in this regard:

(1) In the first, a tribe enters into a relatively narrow contract or agreement to perform a function—something like the replacement of a culvert for fish passage—but the federal agency retains authority to manage the rest of the landscape and resources and does so with little regard for tribal values and vision. Though the work of the tribal nation on that project is co-stewardship and could be an important way to build further capacity and relationship with the federal agency, the broader federal management values retain the status quo.

 

(2) A second scenario might begin with meaningful tribal participation and integration of tribal nations at the earliest phases of planning for the management of the region, which would help ensure that tribal views can shape the overall direction of management rather than contribute to a limited contract with the agency on a project that they had no role in developing. In this scenario, implementation—via compact, contract, agreements, or other implementation mechanisms—would be driven by the larger purposes, objectives, goals and desired conditions set forth in a plan that are developed with meaningful tribal participation. Tribal nations could also take on those specific projects but would have the benefit of knowing how and when they would roll out in accordance with the overall management plan document.

Federal agency planning processes and documents are also important because they can shape, to varying degrees, all subsequent decisions, projects and activities that are undertaken by a federal agency, indeed they often set the tone or create the culture of operating for that agency. The details differ per agency, but decisions often “tier” back to a plan, so the management plan ends up serving as the touchstone for the types of decisions made and management actions taken by an agency. For example, planning regulations for the USFS state that “every project and activity must be consistent with the applicable plan components” provided in a forest plan, and the BLM considers its land use plans to serve as “the basis for every on-the-ground action the BLM undertakes.”

Plans and even planning processes can and often do matter from a tribal perspective. There is some risk associated with not engaging in planning processes, as so many current threats to tribal rights and interests on public lands can in fact be traced back to land management plans that did nothing or little to protect them. In addition, so many poorly executed plans and management techniques can trace their origins back to a lack of tribal input, such as the fire suppression policy of the USFS. The catch, however, is that planning processes are notoriously technical, tedious and time-consuming endeavors that can appropriate a significant amount of resources and, by their very definition, do not result in specific actions taking place on the ground. This tendency to spend a copious amount of time on the development of plans, only to then make the plan as vague and non-committal as possible, is one way in which agencies seek to maintain their discretion and flexibility in subsequent decisions. Still, many constituent interests, including environmental and industry groups, consider these trade-offs and nonetheless commit to engaging in planning processes because the risks associated with not doing so outweigh the costs of participation.

So, what does all of this have to do with tribal co-stewardship? S.O. 3403 calls for federal land agencies to “[p]romote the use of collaborative agreements and/or provisions in land management plans” in order to enhance tribal co-stewardship of federal lands and waters, including wildlife and its habitat. The Order also requires agencies to engage tribes “in meaningful consultation at the earliest phases of planning and decision-making relating to the management of Federal lands to ensure that Tribes can shape the direction of management.”

Table 3 (below) summarizes how federal public land agencies will use their planning processes to meet the purposes of S.O. 3403. The USFS and BLM have yet to provide much guidance on how plans can be used more strategically in this process, while the NPS and FWS provide more direction in how plans will be used to advance the purposes of S.O. 3403. This includes the incorporation of tribal expertise and Indigenous knowledge in planning processes and tribal representation on agency planning teams. The NPS also requires, “to the maximum extent practicable,” specific issues to be addressed in planning efforts, such as traditional food gathering and propagation. The USFWS takes similar steps and casts various measures to incorporate tribal input as mandatory for agency leadership, supervisors and employees in order to meet the objectives of S.O. 3403. These measures include ensuring tribal participation on planning teams and identifying opportunities for tribal participation in the implementation of USFWS plans.