The U.S. Fish and Wildlife Service announced an updated Native American policy on January 27, 2016, which provides a framework for government-to-government relationships to further the federal government’s trust responsibility to federally recognized tribes to protect, conserve and use tribal resources.  81 Fed. Reg. 4638 (Jan. 27, 2016).  This policy comes after two and a half years of collaboration and discussions between the Service and tribal representatives.

Policy Highlights

The policy recognizes the need for strong, healthy communication and relationships between the Service and tribal governments to improve conservation of fish and wildlife resources and enhance shared natural and cultural resource goals and objectives.  It replaces the 1994 policy included in the U.S. Fish and Wildlife Service Manual.  As a result, the policy reflects both a framework and aspirational guidance concerning recognition of tribal sovereign status, Service responsibilities, and opportunities for the Service and tribes to work together toward natural and cultural resource conservation and access.

The policy includes guidance on the following:

• The unique relationship between the Service and federally recognized tribes and Alaska Native Claims Settlement Act corporations, including Service employee responsibilities.
• Tribes’ sovereign authority over their members and territory and the right to self-govern.
• Government-to-government relations, communication, consultation and information sharing by working collaboratively and in accordance with existing initiatives, agreements and the Department of Interior’s November 2015 Policy on Consultation with Indian Tribes and Alaska Native Corporations.
• Co-management and collaborative management opportunities where the Service, tribes, Alaska Native Organizations and others have shared responsibility.  Examples include resource co-management of the salmon harvest in the Pacific Northwest, the Alaska Migratory Bird Co-Management Council cooperatively setting subsistence harvest regulations, lake trout fisheries in the Great Lakes and cooperative agreements in Alaska to conserve marine mammals and to provide co-management of subsistence use by Alaska Natives.
• Tribal access to Service lands and Service-managed resources for cultural and religious practices.  Under the policy, the Service should (1) avoid adversely affecting the physical integrity of sacred sites while managing its lands; (2) accommodate and, as needed, collaborate with tribal governments for access to and maintenance of appropriate settings for ceremonial use of Indian sacred sites; and (3) consider tribal government protocols and procedures to give their members access to and use of cultural resources.
• Tribal cultural use of plants and animals and collaboration on these issues in accordance with the 1997 Department of the Interior Order No. 3206 on tribal rights and federal trust responsibilities under the Endangered Species Act, as well as other under other laws.
• Tribal Law enforcement responsibilities and encouragement for cooperative law enforcement between the Service and tribes for managing Indian lands and tribal resources.
• Mandatory consideration of excluding tribal lands from areas designated as critical habitat under the Endangered Species Act.
• Cross training and education between tribal governments and the Service to train Service employees and make Service technical experts available to help tribes develop technical expertise, support tribal self-determination and support Native American professional development, including the Indian Self-Determination and Education Assistance Act.

Although the policy is effective, the Service maintains flexibility for Service Regions to work with tribes and Alaska Native Corporations to allow for local and regional differences.  Further, the Service emphasizes that “[t]his policy is not meant to stand on its own,” but to effectively implement it, the Service further intends on updating its U.S. Fish and Wildlife Service Tribal Consultation Handbook, establish an Alaska Regional Native American policy and develop training so that Service employees will be better able to perform duties related to this policy.

The updated Native American Policy, titled “Working with Native American Tribes” is available in the Service’s Manual.

Importance of the Policy

The extent and meaning of Native American rights and responsibilities over fish and wildlife resources has evolved in significant ways over the 22 years since the Service published its previous Native American policy.  Because of the breadth of this field, and the many changes in statutory, regulatory and case law during this period, the Service’s new policy clarifies the nature and extent of the procedures that will be used to carry out government-to-government relationships with tribes.  The new policy reaffirms the strong role that Native American entities will play on fish and wildlife decisions involving tribal lands and resources.  An important addition to the policy is the inclusion of Alaska Native Corporations.  The strong role for tribal and Alaska Native Corporations means that non-tribal entities with activities occurring on or impacting tribal lands need to be aware of the policy and procedures and to work directly with Native American entities to address their concerns.

© 2016 Perkins Coie LLP