On January 27, 2016, the U.S. Fish and Wildlife Service (FWS) announced the adoption of an updated Native American Policy (Policy). 81 Fed. Reg. 4638. The Policy provides a framework for government-to-government relationships which furthers the trust responsibility of the United States and the Department of the Interior to Indian tribes, with particular reference to the protection, conservation, and use of tribal reserved, treaty guaranteed, and statutorily identified resources. As stated in the FEDERAL REGISTER notice (Notice), the Policy “recognizes the sovereignty of federally recognized tribes; states that the Service will work on a government-to-government basis with tribal governments; and includes guidance on co-management, access to and use of cultural resources, capacity development, law enforcement, and education.”
The Policy was released as Chapter 1 of Part 510 of the Fish and Wildlife Service Manual. The Notice does not include the text of the Policy, but, rather, says that it can be downloaded from www.fws.gov/policy/510fw1.html. The Notice provides background on the development of the Policy and discusses changes that were made in response to comments from tribes and others after a draft was made available on August 3, 2015. In addition, the Policy includes three exhibits: (1) definitions; (2) responsibilities of FWS employees; and (3) authorities. They can be downloaded from http://www.fws.gov/policy/ (click on “Service Manual” and scroll to part 510). The Notice, Policy, and exhibits are all attached.
Implementation and Training. The Policy does not stand on its own. Rather, the Notice says that, in order to effectively implement the Policy, FWS will develop training for its employees and will update its Tribal Consultation Handbook (www.fws.gov/mountain-prairie/tribal/documents/Tribal_Consultation_Guide_Apr_2013.pdf).
Development of an Alaska-Specific Chapter. While the Policy applies to all federally recognized tribes, including those in Alaska, FWS will also develop an Alaska Regional Native American Policy as a separate chapter for the Fish and Wildlife Service Manual to address issues unique to Alaska.
Highlights by Section. The Policy addresses a number of important issues, only a few of which are noted in this memorandum. In section 2, Sovereignty and Government-to-Government Relations, in response to comments from some tribes that have delegated some authority to inter-tribal agencies, FWS added a sentence stating that FWS “will consult with inter-tribal organizations to the degree that tribes have authorized such an organization to consult on the tribe’s behalf.” In section 3, Communications and Relationships, in addition to using the “best available scientific and commercial data,” FWS will “solicit and consider information, traditional knowledge, and expertise of affected tribal governments.” In response to comments raising concerns about the sensitivity of information relating to cultural practices and locations, the Policy acknowledges the constraints of the Freedom of Information Act (FOIA) and says that FWS “will work collaboratively with tribal governments to protect and prevent disclosure of confidential or sensitive information to the extent allowable by law.” Section 5 of the Policy, Culture and Religion, which contains similar language regarding cultural resources and sacred sites, incorporates text from the exemption from disclosure authorized by the National Historic Preservation Act if disclosure may cause a significant invasion of privacy, risk harm to an historic property, or impede the use of a traditional religious site by practitioners. For this exemption from disclosure to apply, the place at issue must be an historic property, i.e., listed on or eligible for the National Register of Historic Places. Places that have ongoing cultural importance for a tribe may be eligible for the National Register as traditional cultural properties.
Section 4, Resource Management, includes a reference to Secretarial Order 3206 regarding the Endangered Species Act and says that, when designating critical habitat, FWS will always consider exclusion of tribal lands. This section also expresses support for co-management of fish and wildlife resources “where there is a legal basis” for it. The Notice, however, says, “Congress has not given us authority to give tribes management authority over Service lands. Management of Service lands is an inherently federal function.” Section 5, Culture and Religion, says FWS “will work in collaboration with tribal governments to protect traditional, customary, ceremonial, medicinal, spiritual, and religious uses of plants and animals for tribal members where it is not contrary to our legal mandates and conservation goals.” The Notice adds that, with respect to federal laws protecting birds, the federal priority is to prosecute violators engaged in commercial activities.
Section 6, Law Enforcement, expresses support for cooperative law enforcement, saying that FWS law enforcement officers “should cooperate with tribal governments, including tribal law enforcement, to enforce Federal or tribal laws and regulations pertaining to fish, wildlife, or cultural resources.” In section 7, Tribal Capacity Building, Assistance, and Funding, FWS offers to provide technical assistance to tribes “as resources and priorities allow,” including working with tribes to develop and conduct joint training programs. Section 8, Implementation and Monitoring, states the intent to develop national and regional implementation plans, and to form national and regional teams with FWS and tribal representatives to carry out such plans.
Please let us know if we may provide additional information or assistance regarding the U.S. Fish and Wildlife Service’s Native American Policy, including the development of the Alaska Regional Native American Policy.