In mid-June, a new Bureau of Land Management rule went into effect, amplifying the Biden administration’s commitment to including tribal priorities and authority in public-lands management. The Public Lands Rule elevates conservation’s status as a valid land “use” alongside recreation, grazing and oil and gas development. It also directs BLM employees to explore co-stewardship opportunities with tribal nations and employ Indigenous knowledge in land management, and it standardizes the process of nominating of areas of critical environmental concern (ACECs), a flexible land designation that could help tribes protect cultural and subsistence sites on BLM lands. (Utah and Wyoming have filed lawsuits over the legality of the rule.) The BLM oversees around 245 million acres in the U.S., primarily in the West.
Source: Bureau of Land Management
The move was praised by tribal organizations including the National Congress of American Indians, Bering Sea-Interior Tribal Commission and the Affiliated Tribes of Northwest Indians (ATNI), all groups that had previously urged the agency to make the rule and consulted with BLM in the rule’s creation.
“If we’re focused, as the Public Lands Rule is, on ecosystem resilience and having healthy public lands that everybody can use for future generations, tribes have known how to do that since time immemorial,” said BLM Principal Deputy Director Nada Wolff Culver in an interview with High Country News. “If we are working with them and learning from them, then we’re going to do a better job.”
THE NEW RULE means that a tribe can now nominate an area on BLM land for special management to preserve its cultural sites, though the final decision will depend on the land’s existing use as well as the decisions of local BLM staffers. Tribes can also use their own traditional knowledge to show why and how the land should be protected, suggest a co-stewardship or co-management agreement, and play an active role in the management of the ACEC if one is designated. The tribe can do all or just some of that, Culver said.
ACECs are “just really one of the best tools in all of BLM law and regulation to protect tribal rights and interests on public lands,” said Martin Nie, professor of natural resource policy at University of Montana.
It’s a significant development, given how tribal nominations of ACECs have gone in the past: In the BLM planning process for 13.5 million acres in the Bering Sea-Western Interior region of Alaska, for example, tribes nominated a total of 14 ACECs to protect watersheds and subsistence hunting and fishing. But in 2021, under the Trump administration, the BLM rejected all the tribally nominated ACECs and did away with the existing ACEC protections, which had covered 1.8 million acres, opening up the area almost entirely to mining, oil and gas. “The BLM’s mandate is to balance uses of the public lands it manages, and it has a special trust responsibility to the tribes that call this region home,” leaders of the Bering Sea-Interior Tribal Commission said when the decision was announced. “Opening 99% of the land to exploitation not only fails to strike that balance — it openly mocks it.”
Had the new BLM rule been in place at the time, the outcome might have been very different, commission Chairman Eugene Paul said in a statement in April.
ACECs are “just really one of the best tools in all of BLM law and regulation to protect tribal rights and interests on public lands.”
IN 2021, BIDEN’S Interior Department initially issued a policy directing agencies to prioritize co-stewardship. But the new rule goes further, embedding co-stewardship objectives in the BLM and providing another layer of guidance — an important step to take, especially given the possibility of an administration change next year.
For the Cow Creek Band of Umpqua Tribe of Indians, co-stewardship agreements with federal agencies are crucial to the successful management of their ancestral lands and cultural sites. The tribe has a unique history of land dispossession: Its ancestral lands cover 6.2 million acres, but it wasn’t until 2018 that Congress granted it reservation lands. However, those 17,500 acres of BLM land are heavily checkerboarded, meaning that federally owned parcels are mixed in with tribal lands, making it impossible for the tribe to manage its land contiguously.
Co-stewarding those adjacent lands with federal agencies has allowed the tribe to “work with them on a whole other level,” said Jason Robison, the tribe’s land and resources officer. “We’re actually designing projects that have tribal knowledge incorporated into those projects, and that’s a huge benefit to the tribe, because as the tribe lost their land and resources, and the federal agencies are now managing those resources, tribes now have an ability to go back and partner with the agencies to manage those homelands that were so important to the tribe.”
Robison said that the fact co-stewardship is now firmly embedded in a federal rule, rather than merely considered department policy, is heartening, because agency policies can be, and often are, easily undone by an incoming administration. But there are still questions that remain, particularly when it comes to the rule’s implementation, Robison said. How will Indigenous knowledge be applied when it comes to activities like cultural burnings, for example? “What does that active management look like?” Robison asked. “And it’s not the agencies that define that; it’s the tribes that should define that.”
ALTOGETHER, THE NEW RULE indicates that the Bureau of Land Management is open to providing more pathways for tribes to proactively protect certain public lands. On a larger scale, the Bureau of Land Management is responsible for resource management plans around the nation, including the ongoing Bering Sea and Northwest California Integrated plans, and the rule could elevate tribal perspectives and priorities in those processes, said Monte Mills, professor and director of the Native American Law Center at the University of Washington School of Law. “The extent that the agency really takes that to heart and implements and effectuates actual co-stewardship according to the rule, I think that remains to be seen,” Mills said.
That’s because the rule’s effectiveness depends on the agency’s willingness to engage in “meaningfully consulting” with tribes. BLM staffers still have the latitude to reject tribal ACECs and co-stewardship proposals, and local offices and administrations can interpret policies differently, as the Bering-Sea example shows. It “doesn’t do anything for tribes if they won’t approve our recommendations or nominations,” said Tanya Pelach, a citizen of the Quinault Nation and natural resources program manager for ATNI, which supports the rule overall. “It’s an improvement, but there’s still room for improvement.”
“It’s an improvement, but there’s still room for improvement.”
This has less to do with policy and rulemaking than with the internal culture of the agency. Under the Biden administration, for example, BLM Tribal Liaison Officer Nicole Hanna said, the agency has been regularly training both senior leadership and employees in the field on co-stewardship, treaties, federal Indian law and Indigenous knowledge.
Those efforts, along with the Public Lands Rule, demonstrate the BLM’s goal to build trust with tribal nations, Culver said. “We know we need to earn it, but we hope, by providing so many opportunities and requirements that it will become more familiar, it will become something that generates trust and that we can show we’re taking it seriously.”
