The Use of Co-Management and Protected Land-Use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands

48 Nat Resources J. 3 (Summer) Summer 2008 The Use of Co-Management and Protected LandUse Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands Martin Nie Recommended Citation Martin Nie, The Use of Co-Management and Protected Land-Use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands, 48 Nat. Resources J. 585 (2008). Available at: https://digitalrepository.unm.edu/nrj/vol48/iss3/4 This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact . MARTIN NIE* The Use of Co-Management and Protected Land-Use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands ABSTRACT Several Native Nations in the United States have culturalresources and reserved treaty rights on federal lands. This article examines two approaches that can be used to protect such values and rights: the use of cooperativemanagement models and protected land-use designations made by Congress or federal land agencies. Background on both subjects is provided, and the caseof the Badger-Two Medicine area in Montana is used for illustration. Though most pronounced in the context offish and wildlife management, tribes are playing several roles in cooperatively managingfederal lands and resources. Some of the most substantive cooperative arrangements on federal land are the result of laws and policies mandating their use. Protected land-use designations,including place-based legislation,have also been used to protectsacred lands and reserved treaty rights. This article describes several cases where such strategieshave been used in the past and analyzes what they might offer in contrast to more reactive and procedural-basedprotections. INTRODUCTION Several Native Nations in the United States have cultural resources and reserved treaty rights on federal lands. In many cases, these values and rights are threatened by resource development and recreational activities permitted by a federal land agency. A typical approach to such conflicts is for a tribe to legally challenge an agency's decision or to seek some type of accommodation by the agency through planning and other decision making processes. This article explores two additional, often interrelated, strategies that can be used by tribes to protect cultural resources and reserved rights: * Associate Professor of Natural Resource Policy, College of Forestry and Conservation, University of Montana. Missoula, MT, 59812. . I wish to thank Alan McQuillan, Chris Barns, Dale Kanen, Cynthia Hamlett Manning, Gloria Flora, Pat Smith, and Jennifer Ferenstein for helpful comments, contacts, information, and suggestions. In no way are these individuals responsible for this article's content and analysis. NATURAL RESOURCES JOURNAL [Vol. 48 (1) cooperative management arrangements, and (2) protected land-use designations. These two strategies, especially the use of protected land-use designations made by Congress, have not received as much study and analysis as have other approaches that are more reactive and proceduralbased. The central findings and focus of the article are as follows. First, tribes are playing several roles in cooperatively managing selected federal lands and resources, from helping set standards and desired conditions, to implementing laws. Co-management models are most advanced in the context of fish and wildlife management, largely because of judicially enforced off-reservation treaty rights, and the unique situation in Alaska. If applied, a cooperative or co-management model on federal land should be built upon basic principles of American Indian law. This is why tribal comanagement should not be confused with other types of stakeholder cooperation or other public-private partnerships. Though its application on federal land is not without challenge, there is ample legal authority and internal agency direction encouraging more collaborative relationships with tribal governments. One important finding is that some of the most substantive co-management arrangements on federal land are the result of laws and policies mandating their use. The Kasha-Katuwe Tent Rocks National Monument and the Santa Rosa and San Jacinto Mountains National Monument provide examples. Cultural resources and reserved treaty rights on federal land can also be protected by land-use designations made by agencies or Congress. Traditional Cultural Property (TCP) designation, made by agencies pursuant to the National Historic Preservation Act (NHPA), is an oftenused example. The success of this designation in protecting tribal cultural values ultimately depends upon the manner of its implementation. More substantive protection can be provided through place-specific land use legislation. Protected land-use designations made by Congress have been used as a way to protect tribal cultural values and off-reservation treaty rights. A glance at the history explains why Indian tribes have good reason to be suspicious of protected land law and policy. Nevertheless, some tribes have sought legislative solutions that might protect cultural values more permanently, including federal wilderness designation. Some examples of these attempts are the El Malpais Act, the T'uf Shur Bien Preservation Trust Area Act, the Ojito Wilderness Act, omnibus wilderness laws, and proposed wilderness bills. Tribes seeking to use protected land designations, especially access management, to protect tribal values, may encounter special problems and challenges. Protected land designations made through federal land reclassifications and by tribal governments may also be used to preserve tribal resources and rights. Some examples of protected land designations are the Summer 2008] TRIBAL RIGHTS & RESOURCES ON FEDERAL LANDS 587 return of Blue Lake to Taos Pueblo, the Grand Canyon National Park Enlargement Act, and the Ojito Wilderness Act; the Wind River Reserve and the Mission Mountains Tribal Wilderness are examples of tribally-managed protected areas. Congress could make other land designations that permanently protect cultural resources and reserved treaty rights on federal land. This article proceeds in the following fashion. First, I provide an example of a prominent conflict regarding management of cultural resources and reserved treaty rights on a national forest. Montana's BadgerTwo Medicine area, managed by the Lewis and Clark National Forest, is used for illustration. Three interrelated factors make this place particularly significant: (1) off-reservation treaty rights, (2) religious and cultural significance, and (3) ceded lands contiguous to reservation boundaries (and bordered by U.S. Forest Service [USFS], National Park Service [NPS], and federal wilderness lands on other boundaries) (...truncated)