Co-Stewardship with Federally Recognized Indian and Alaska Native Tribes Pursuant to Secretary’s Order 3403

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
https://www.blm.gov

September 13, 2022

 

In Reply Refer To:
1118, 8160 (HQ-100) P

EMS TRANSMISSION 09/13/2022
Permanent Instruction Memorandum No. 2022-011

To:                  BLM State Directors
 

From:              Director, Bureau of Land Management
                        Principal Deputy Director, Bureau of Land Management
 

Subject:           Co-Stewardship with Federally Recognized Indian and Alaska                                   Native Tribes Pursuant to Secretary’s Order 3403

Program Area: Stewardship.

Purpose: To provide direction for implementing provisions of Joint Secretary’s Order 3403 (SO 3403), Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.

The Joint Order issued by the Secretary of Agriculture and the Secretary of the Interior (Secretaries) ensures that the Department of Agriculture and the Department of the Interior (Departments) and their component Bureaus and Offices are 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.

Policy/Action:

1. General: The BLM will adhere to the principles set forth in SO 3403 to engage Tribes in meaningful consultation at the earliest phases of planning and decision-making in order to provide an opportunity for Tribes to shape the direction of the BLM’s land management activities.  Upon request by a Tribe, the BLM will meet and consult regarding co-stewardship opportunities and evaluate proposals submitted by Tribes, including proposals to build both Tribal and Federal capacity to carry out the SO
2. Principles of co-stewardship: Although BLM has substantial leeway to design co-stewardship arrangements, such arrangements must comply with governing law.  The BLM should consult with the Office of the Solicitor on a case-by-case basis to ensure that any potential co-stewardship arrangement complies with all applicable laws.  In general, all such arrangements should comply with the following:   a.  First, BLM cannot cede to a Tribe any inherently Federal function or otherwise exceed BLM’s legal authority, which generally prohibits the BLM from ceding complete decision-making authority over Federal lands to a Tribe.  If a proposed co-stewardship arrangement involves decision-making authority over Federal property, enforcement, or the rights of third parties, please consult the Office of the Solicitor.

 

2. Second, the BLM must also follow any limitations or conditions set forth in the statute authorizing the particular agreement.  For example, both the Tribal Forest Protection Act (TFPA) and BLM’s Stewardship Contracting authority are limited to discrete “projects.”[1]  Both statutes also limit the types of projects that can be carried out under their authority: for example, the TFPA applies only to projects located on Federal lands “bordering or adjacent to” Tribal lands or communities and intended “to protect” the Tribal lands or “to restore” the Federal lands,[2] while BLM’s Stewardship Contracting authority similarly enumerates the land management goals that can be pursued under the statute.[3]

3. Co-stewardship at different levels of BLM decision-making: Generally speaking, and subject to the conditions in paragraph 2 above, the BLM has substantial leeway to involve Tribes in its decision-making processes.  The extent of the role that a Tribe can play in any given decision-making process depends on the breadth of the decision being made and on how closely the decision relates to the Tribe’s sovereign jurisdiction, interests, and citizens.  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’s decision.  The following discussion illustrates how these general principles apply to different levels of BLM decision-making.  The BLM has a broader set of options earlier in the process, starting with land use planning and continuing through implementation decisions, including execution of projects.

 

1. Land use planning: Section 202(c)(9) of FLPMA requires the BLM to “coordinate [its] land use . . . planning . . . activities . . . with the land use planning and management programs . . . of or for Indian tribes.”[4]  One way to ensure such coordination is to use BLM’s cooperative agreement authority under Section 307(b) of FLPMA to create structured opportunities for tribes to provide early and direct input into the BLM’s land use planning process.  Moreover, in addition to involving Tribes in the land use planning process itself, the BLM can also use land use plans to formalize its commitment to engage in co-stewardship arrangements for subsequent implementation decisions.  For example, the BLM can incorporate Tribal priorities into the designation and management of resource management areas.  The BLM can also commit in a land use plan to prioritize agency actions (such as habitat restoration projects) that are proposed by Tribes, and to make decisions related to such actions through co-stewardship arrangements.  In particular, the BLM can identify co-stewardship arrangements of this kind as interventions that are needed to respond to site-specific resource concerns identified in the land use plan.[5]

 

2. Implementation decisions:   Tribes can participate in activity-level implementation decisions, which provide guidance for subsequent decisions within a particular resource or geographic area, and in project-specific implementation decisions, such as whether or not to undertake discrete projects.  For example, a Tribe could formulate, propose, and execute habitat restoration projects in an area where the Tribe holds reserved treaty rights, with a limited role for BLM in developing the proposals, so long as the BLM retains the authority for approval over individual projects.  In addition, project approvals may be made contingent on Tribal consent as long as there is a reasonable connection between the Tribe’s jurisdiction and the BLM’s decision (such as a nexus between the proposed action and the Tribe’s off-reservation treaty rights).  Tribes can also participate broadly in execution of previously approved actions or projects carrying out activities such as habitat restoration projects or wild horse and burro gathers that have already been approved.

 

4. Identifying opportunities for co-stewardship: BLM Offices will identify opportunities for co-stewardship as follows.

 

        A. The BLM will identify opportunities for co-stewardship as part of Tribal consultation and engagement during land use planning and implementation decisions, including for activity-level plans and projects.

 

2. The BLM will cooperate and coordinate in co-stewardship efforts and initiatives with other agencies and Departments.

 

3. Within 6 months of this IM, State Directors will create state-specific plans for outreach to identify co-stewardship opportunities, including identifying potential Tribal partners and sources of Indigenous Knowledge.

 

4. Within 6 months of this IM and periodically thereafter, the BLM, through the Assistant Directors for National Conservation Lands and Community Partnerships and Resources and Planning, along with the National Tribal Liaison Officer, will review and update existing policies and procedures, including consultation policies, to ensure compliance with SO 3403 and the provisions of this IM.

 

5. Indigenous Knowledge: The BLM will evaluate and incorporate Indigenous Knowledge in its analysis and decision-making, and will protect sensitive information provided by Tribes to the extent possible under Federal law, including by invoking relevant provisions of the National Historic Preservation Act, Archaeological Resources Protection Act, and other laws.

 

6. Documentation of co-stewardship agreements: All co-stewardship arrangements will be documented in writing, through documents prepared with assistance from the Office of the Solicitor to set out the parameters of the co-stewardship efforts and cooperation, and shall include appropriate dispute resolution procedures (as directed by SO 3403).

 

7. Training: The Assistant Director for National Conservation Lands and Community Partnerships, along with the National Tribal Liaison Officer, will develop training regarding co-stewardship, working with the Office of the Director and the National Training Center.

 

8. Performance plans: Consistent with the requirements of SO 3403, applicable Senior Executive Service performance plans, under Critical Element 4 Coalition Building, goals will include specific actions related to co-stewardship, including collaboration through agreements, training, and reporting requirements.

 

9. Reporting: To facilitate BLM’s reporting under Section 1(e) of SO 3403, each State Office shall keep track of their actions under this IM and report its activities pursuant to this IM on a yearly basis, to be submitted to the Director at the end of each fiscal year. BLM Headquarters will use this information to prepare a combined report.

 

Timeframe: This IM is effective immediately.

Budget Impact: None.

Background: BLM administers more surface land (245 million acres or one-tenth of America’s land base) and more subsurface mineral estate (700 million acres) than any other government agency in the United States.  These lands are the ancestral homelands of Indian and Alaska Native Tribes, and BLM respects the nation-to-nation relationship that exists with Indian and Alaska Native Tribes that is based on the U.S Constitution, treaties, statutes, and common law.

This Instruction Memorandum sets forth how the BLM will implement Secretary’s Order 3403 that directs the Department and its bureaus to manage Federal lands and waters “in a manner that seeks to protect the treaty, religious, subsistence, and cultural interests of federally recognized Tribes.”  SO 3403 broadly requires that consultation and collaboration be included in “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.”  SO 3403 directs the BLM and other bureaus to undertake five specific actions, summarized as: (1) ensure that all decisions include consideration of how to safeguard the interests of Indian Tribes; (2) enter into co-stewardship agreements; (3) identify and support opportunities to consolidate Tribal homelands and empower Tribal stewardship; (4) perform a legal review of treaty responsibilities and authorities; and (5) issue a report on compliance with SO 3403. Section 3 sets forth eight principles of implementation that are incorporated by reference.

This Instruction Memorandum sets out specific policies and guidelines consistent with the BLM’s mission and applicable law.  The BLM considers co-stewardship to refer to a broad range of working relationships with Indian and Alaska Native Tribes (as defined in 25 U.S.C. 5130(2)[6] to include all Tribes in Alaska), as well as Tribal consortia and Tribally-led entities exercising the delegated authority of federally recognized Tribes.  The BLM does not currently manage any land in Hawai’i but should it do so in the future, this IM shall apply to the Native Hawaiian community with equal force, to the extent permitted by law.

Co-stewardship can include co-management, collaborative and cooperative management, and Tribally-led stewardship, and can be implemented through cooperative agreements, memoranda of understanding, self-governance agreements (including annual funding agreements), and other mechanisms, as discussed below.  In accordance with Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), the BLM maintains a government-to-government relationship with Indian and Alaska Native Tribes.  Co-stewardship may arise out of and complement Tribal consultation, but consultation does not by itself constitute co-stewardship, and this IM does not alter or reduce the BLM’s obligations to engage in consultation under the National Historic Preservation Act or any other laws.

BLM recognizes the unique Federal relationship to Alaska Native Corporations, which are for-profit corporations established under the Alaska Native Claims Settlement Act of 1971 (ANCSA).  BLM will continue to consult with ANCSA Corporations when taking action that might have a substantial and direct effect on an ANCSA Corporation’s interests.   The requirement to consult with ANCSA Corporations is distinct from, and does not diminish, the nation-to-nation relationship and consultation obligations between BLM and Alaska Native Tribes.  To the extent that concerns expressed by Alaska Native Tribes and ANCSA Corporations substantively differ, the BLM will give due consideration to the rights, sovereignty, and self-governance of Alaska Native Tribes. 

For purposes of this guidance, the following definitions are applicable:

 

• “Co-Stewardship” broadly refers to cooperative and collaborative engagements of Bureau land managers and Tribes related to shared interests in managing, conserving, and preserving natural and cultural resources under the primary responsibility of Federal land managers.  Such cooperative and collaborative engagements can take a wide variety of forms based on the circumstances and applicable authorities in each case.  Forms of co-stewardship may include, among other forms, sharing of technical expertise; combining Tribal and Bureau capabilities to improve resource management and advance the responsibilities and interests of each; and making Tribal knowledge, experience, and perspectives integral to the public’s experience of Federal lands.

 

• Indigenous Knowledge is a body of observations, oral and written knowledge, innovations, skills, practices, and beliefs developed by Tribes and Indigenous Peoples over millennia through direct contact and experience with the environment. Indigenous Knowledge is based in moral and ethical foundations often grounded in the understanding that social, spiritual, cultural, and natural systems are intertwined and inseparable.  Indigenous Knowledge is inherently heterogenous due to the cultural, geographic, and socioeconomic differences from which it is derived.  Indigenous Knowledge can apply to phenomena across biological, physical, social, cultural, and spiritual systems, and definitions and terminology may vary. 

 

• “Co-Management” refers to co-stewardship activities undertaken pursuant to Federal authority allowing for the delegation of some aspect of Federal decision-making or that makes co-management otherwise legally necessary.

 

Authorities: In addition to the broad Authorities cited in Section 2 of SO 3403, the BLM has available to it a number of specific authorities and tools to support co-stewardship activities and provide funds to tribal partners where appropriate, which may be exercised through entering into agreements with Tribes.  These tools are summarized below and discussed in further detail in Appendix 1 to this IM:

           

1. Section 307(b) of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1737(b), provides authority to enter into contracts and cooperative agreements, which the BLM has relied upon to enter into co-stewardship agreements.  The BLM can also use its authority under other provisions of FLPMA to issue easements, permits, leases, or rights-of-way in appropriate circumstances to facilitate Tribal activities on public lands.

 

2. The BLM’s Good Neighbor authority, 16 U.S.C. 2113a, allows the BLM to enter into sole-source cooperative agreements and contracts with entities, including Tribes, to carry out forest, rangeland and watershed restoration services, generally excluding construction and repair work.

 

3. The BLM’s Stewardship Contracting authority, 16 U.S.C. 6591c, allows the BLM to enter into provides for contracts and agreements with entities, including Tribes, to complete projects related to a wide set of land management goals, including restoring and improving habitat and watersheds.

 

4. Section 809 of the Alaska National Interest Lands Conservation Act, 16 US.C. 3119, authorizes the Secretary to enter into cooperative agreements or otherwise cooperate with other Federal agencies, the State of Alaska, Alaska Native Corporations, and other appropriate persons and organizations, to address management of subsistence uses.

 

5. The Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5301, et seq., as amended, requires the Department to enter into self-determination contracts and self-governance compacts and funding agreements with Tribes and eligible Tribal Organizations to plan, conduct, and administer certain Federal programs, functions, services, or activities (PFSAs), or portions thereof, including construction programs, and PFSAs administered by the Department other than the Bureau of Indian Affairs. Such agreements may also include PFSAs that are of special geographic, historical, or cultural significance to the requesting Tribe.  

 

6. The Tribal Forest Protection Act, 25 U.S.C. 3115a, authorizes the BLM to enter into agreements with Tribes to carry out projects to protect Indian forests and rangelands, including on adjacent public lands.

 

7. The Native American Tourism and Improving Visitor Experience Act, 25 US.C. 4351-4355, requires the BLM to support Native American tourism and enhance self-determination and self-governance capabilities.

 

Manual/ Handbook Sections Affected: None.

Instruction Memorandums Affected: None.

Coordination: HQ200 Resources and Planning Directorate, HQ400 National Conservation Lands and Community Partnerships Directorate, HQ600 Communications Directorate, and HQ700 Business Management and Administration Directorate.

Contact: Nada Wolff Culver, Principal Deputy Director at (202) 255-6979.

 

Signed by:

Tracy Stone-Manning

Director

 

Signed by:                                           Authenticated by:

Nada Wolff Culver                             Robert M. Williams

Principal Deputy Director                  Division of Regulatory Affairs and Directives,(HQ-630)

 

1 Attachment

     1 - Detailed Discussion of Authorities (4 pp)