Cooperative agreements can establish collaborative intergovernmental relationships for the purpose of managing public lands. This section outlines key mechanisms available to tribal nations and federal agencies to create or maintain such relationships. These tools differ in terms of purpose and scope, including the distinction between co-management and co-stewardship, which is not always clear. DOI and USDA’s reaffirmed commitment to co-stewardship presents opportunities for the meaningful integration of tribal and federal interests in public lands management. Accordingly, this section adopts a distinction between two categories of agreements: 1) those that establish decision making and management protocols and governing arrangements and 2) those that focus more on funding and project-level activities.
The agreements provided here are simply examples. They are not intended to serve as a recommendation for what is best or how others should pursue these agreements. They offer context for what other parties have sought to achieve through a cooperative agreement.
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The following cooperative agreements were identified in accordance with principles of Indigenous data sovereignty and the policy recommendations of the University of Arizona's Native Nations Institute. In providing the agreements collected here, the following protocols were used to ensure any tribes mentioned by name provided their free, prior, and informed consent for the public use of these documents. The goal of the Indigenous Data Sovereignty Protocol is to ensure this database does no harm and in no way impedes the rights of any tribes to access, remove, or correct information herein. The following steps were taken to meet this goal:
Step 1 – Seek agreements already publicly available.
Step 2 – Request permission from any tribes mentioned in already publicly available documents. In seeking permission, provide to the Tribe: 1) the purpose of the request, 2) how the information linked through this repository may be used, 3) how to provide permission, and 4) how to exercise their right to rescind permission at any time.
Step 3 – Seek the free, prior, and informed consent from any tribe mentioned by name if the agreement is not publicly available. Establish a publication agreement to obtain consent in writing from the governing body (e.g., tribal council) or authorized signatory.
If there are ways we can improve our protocol, please let us know at uwnalc@uw.edu.
By giving permission to share the below agreements, the tribes in question retain all rights to that information. Tribal permission to include information within this repository does not serve as implicit consent for its use in any way.Users of this database are strongly encouraged to seek free, prior, and informed consent of Tribes in question for any further use of the agreements shared here. |
Memorandums of understanding and agreement allow federal and tribal governments to establish frameworks for collaborative management and/or stewardship of public lands. Each federal land management agency is authorized by various legal authorities to engage in cooperative agreements with tribal nations, offering diverse mechanisms for co-management. Developing an MOU/MOA can foster the deliberate negotiation and mutual agreement needed for a beneficial cooperative relationship, as well as set the foundational framework for subsequent agreements.
MOUs/MOAs designed to establish a framework for a productive and respectful cooperative relationship typically embody key principles, including:
Monte Mills & Martin Nie, Bridges to a New Era, 44 Pub. Land & Res. L. Rev. 49, 54 (2021).
Sample Agreements
Both the executive and the judicial branches have authority to sanction and compel collaborative frameworks of governance over public lands. An illustration of the executive’s power lies in the President’s ability to designate national monuments through proclamations, thereby reserving specific federally controlled or owned land. 54 U.S.C. § 320301. This authority includes enabling the President to direct agency heads to manage these lands collaboratively with tribal nations, to the extent permitted by applicable legal authorities. See, e.g., Proclamation No. 9558, 82 Fed. Reg. 1139 (Dec. 28, 2016).
The judiciary plays a critical role in demanding that states, tribes, and federal agencies develop ways to collaboratively address land management issues. Judge Belloni's decision in United States v. Oregon, as discussed by Michael C. Blumm and Cari Baermann, is one example of a judicial decision that played a key role in subsequent major co-management cases. Furthermore, the courts can enter decrees that approve parties' carefully negotiated settlements that include cooperative processes. See U.S. v. Armour, 402 U.S. 673, 681 (1971).
Whether established through presidential proclamation or judicial decree, a collaborative framework for land management provides federal agencies and tribal governments—and at times, state agencies—a legally-sanctioned commitment to principles of collaboration and consultation when managing public lands.
Sample Agreements
See also:
Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Sault Ste. Marie Tribe of Chippewa Indians, 2023 Inland Consent Decree
Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Sault Ste. Marie Tribe of Chippewa Indians, 2023 Great Lakes Fishing Decree
The Indian Self-Determination and Education Assistance Act (ISDEAA) authorizes agencies with the Department of the Interior and the Department of Health and Human Services to transfer responsibility for planning and administering programs, services, functions, and activities (PSFAs) with federal funding to tribal governments upon the tribe’s request. 25 USC §§ 5321(a), 5363(a). Title I of ISDEAA enables the Bureau of Indian Affairs (BIA) and Indian Health Services (IHS) to enter contracts with tribes—commonly called "638 Contracts" or “self-determination contracts”—granting tribes control over federal services and programs traditionally administered by BIA and IHS. 25 U.S.C. §§ 5321-5332. Under Title IV of ISDEAA, non-BIA bureaus of the Department of the Interior, including the Bureau of Land Management, Bureau of Reclamation, National Park Service, and Fish and Wildlife Service, among others, are authorized to enter compacts and funding agreements with tribal nations. These agreements allow tribes to assume control over certain federal PSFAs.
Section 8703 of the Agriculture Improvement Act of 2018 broadened ISDEAA funding eligibility to include demonstration projects of approved Tribal Forest Protect Act (TFPA) proposals. Therefore, non-BIA Bureaus of the Department of the Interior and the Department of Agriculture’s Forest Service possess discretionary authority to fund PSFAs and TFPA demonstration projects through self-governance compacts and funding agreements. By leveraging ISDEAA’s statutory mechanisms, participating tribal nations may negotiate and enter into agreements to foster co-management of public lands.
Sample Agreements
Tulalip Tribes’ TFPA 638 Agreement and Project Documents
Federal agencies have a duty to engage in tribal consultation, a duty firmly rooted in the federal trust responsibility. While this obligation has long been present in applicable laws and regulations, recent executive actions have prompted departmental directives that reinforce the obligation of federal agencies to consult with tribal nations, particularly on matters with a “substantial direct effect” on tribal nations. Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000).
The fundamental role of consultation in the sovereign-to-sovereign relationship between tribal nations and the federal government aligns with various authorities mandating consultation. Consequently, a range of mechanisms exist to ascertain whether the duty to consult has been fulfilled. Despite the potential for inconsistencies, tribal consultation serves as both an obligation and means to facilitate meaningful engagement with tribal nations on matters that implicate their inherent right to self-govern. Many directives encourage federal agencies to work with tribal nations to establish written consultation procedures.
Sample Agreements
COMING SOON
Section 106 Programmatic Agreements
The National Historic Preservation Act provides a statutory obligation to consult, which is particularly pertinent in the context of public lands management. Section 106 of the Act requires federal agencies to “take into account” the effect of an undertaking on any property included in, or eligible for inclusion on, the National Register of Historic Places. 54 USC §§ 306108, 300308. Properties of “traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization” are among those that may qualify for inclusion on the National Register of Historic Places. When considering an undertaking on a property holding religious and cultural significance to tribe, the requirements of Section 106 become applicable. Regulations guiding the implementation of Section 106 outline mechanisms to ensure an agency fulfills its statutory obligations, potentially involving the establishment of a programmatic agreement. 36 C.F.R. §§ 800.6, 800.14(b).
TFPA Project Agreements
The Tribal Forest Protection Act (TFPA) is designed to protect tribal forest assets by authorizing tribes to propose work and enter into agreements and contracts with the Forest Service (FS) and Bureau of Land Management (BLM) to mitigate fire threats on federal land. Upon the submission of a TFPA proposal by a tribe, the USFS and BLM may authorize tribal nations to carry out projects aimed at protecting “Indian forest land or rangeland” and restoring federal land bordering or adjacent to Indian forest land or rangeland. 25 U.S.C. § 3115a(b)(1). As explained by the Intertribal Timer Council, the statute establishes a framework in which tribes can “propose projects that would protect their rights, lands, and resources by reducing threats from wildlife, insects, and disease.”
Among other stipulations, the TFPA requires that tribal proposals focus on USFS land that: 1) adjoins federal land, 2) poses a fire, disease, or other threat to Indian trust land or community or is in need of restoration, and 3) involves a “feature or circumstance unique to that Indian tribe (including treaty rights or biological, archeological, historical, or cultural circumstances).” 25 U.S.C. § 3115a(c). When evaluating tribal proposals, TFPA permits the USFS to use a “best value basis” and give specific consideration to tribally-related factors, such as the cultural, traditional, and historical affiliation of the tribe with the land, reserved treaty rights, and the indigenous knowledge of tribal members, among other factors. Once a TFPA project proposal is approved, the project may be executed under various stewardship authorities, including ISDEAA self-governance compacts. 25 U.S.C. § 3115b. As articulated by the FS, self-governance compacts are a “tool to fund work identified as a priority under an approved TFPA proposal by a Tribe for work on [National Forest System] land.”
Good Neighbor Agreements
Since 2018, BLM and FS have been authorized to partner with tribes—via cooperative agreements—to perform a wide range of forest, rangeland, and watershed restoration services, including activities to treat insect- and disease-infected trees, reduce hazardous fuels, and “any other activities to restore or improve forest, rangeland, and watershed health, including fish and wildlife habitat.” 16 U.S.C. §§ 2113a(4), 2113a(b)(1)(a).
Stewardship Agreements
BLM and FS may enter stewardship contracts with public or private entities, including tribes, to “perform services to achieve land management goals for the national forests and the public lands that meet local and rural community needs.” 16 U.S.C. § 6591c(b). Additionally, the Wyden Amendment authorizes FS to enter into cooperative agreements with tribes for the “protection, restoration, and enhancement of fish and wildlife habitat and other resources on public or private land….”16 U.S.C. § 1011(a).