Chapter Three: Institutional Barriers Eroding Knowledge Sovereignty

Native Americans have struggled for more than half a century to regain the political autonomy to apply their own methods of resource stewardship and to access subsistence resources on their historical lands. Unfortunately these efforts have been consistently met with significant structural resistance from government, academic and private interests, resistance that continues to this day.”

— Kathleen Pickering Sherman et al 2010, p. 508

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While many of the obstacles Tribes face in maintaining sovereignty over traditional knowledge are cultural, many more are explicitly built into institutional policies and practices. Chapter Three examines how institutionalized polices and practices concerning access to information, intergovernmental project collaboration, inadequate enforcement of existing regulations and the overall absence of applicable research work together to erode the sovereignty of Tribal traditional knowledge.

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White wolf used in ceremony finally repatriated from the Phoebe Hearst Museum at UC Berkley after many years of struggle. Photo: Karuk Tribe

While the practice of traditional Tribal management and thus the regeneration of traditional knowledge is essential, evidence from the Karuk experience and beyond indicate that institutionalized policies and practices at national, state and regional levels form structural barriers that thwart implementation of Tribal management on forest lands as well. The discussion of each barrier to Tribes’ ability to maintain control over Tribal knowledge and carry out management is followed by one or more policy recommendations. An Appendix compiles all policy recommendations pertaining to both cultural and institutionalized barriers for knowledge sovereignty into one summary section.

1) Inadequate Enforcement of Existing Policies

“Consultation is of course only moderately effective, it depends on who you are talking to, just because you have the FS and Tribe talking together does not mean that such “consultation” is going to be effective.”

–Bill Tripp, Karuk Department of Natural Resources

In many cases legal or policy mechanisms that are intended to protect Tribal rights or enable Tribal Management exist but are not enforced. Many rules, regulations and policies have been developed without “adequate” (if any) consultation with each distinct Tribal community or their governing body. In other cases the Forest Service may engage in Government to Government Consultation with Tribes, but then does something different once the “consultation” is finished. Relationships with Tribes must be based on the principals of self-governance and self-determination. Honest and open dialogue must intend to reach resolution instead of merely reaching the point to where passive consent could be implied. Thus, there is a need for the U S Forest Service to have repercussions when they break agreements with Tribes. Consultation needs to have teeth and consequences. There is a need for the national office of the Forest Service to create and enforce serious repercussions for Forest and District level violation of Tribal Consultation agreements that are monitored and administered by the National US Forest Service office in D.C.

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2) Inadequate Protection of Tribal Knowledge

Chapter Two opened with a description of differences between the epistemological orientations of Western Science and traditional Tribal knowledge, as well as differences in the appropriate uses of knowledge in Native and non-Native communities. These distinctions are cultural, and they are also about power. Whereas Western democracies are organized around the use of science for the public good and policies such as the Freedom of Information Act are set up to protect citizens from the potentially coercive actions of a powerful Federal government, these same assumptions about knowledge have worked to harm Native communities by serving as mechanisms for the extraction of knowledge by non-Native government agents and academics. Laws requiring disclosure of information shared by Tribal communities have thus been a significant mechanism of colonization.

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Baskets and cultural items for sale at the Brizard Store. Many items had been stolen from their original owners or in some cases sold for financial survival after the arrival of settlers.

For example, universities and museums have benefited enormously from the theft and display of indigenous cultural artifacts and human remains, as well as from these institutions purported control over knowledge about indigenous peoples while at the same time denying access and dignity to indigenous peoples themselves (Lonetree 2012, Bowrey and Anderson 2009).

Present day academic Institutional Review Boards, federal Freedom of Information policies, and the emerging regulations concerning Intellectual Property are all organized around Western values, epistemologies and understanding of potential harms. Tribes confront unique and serious ethical risks beyond those faced by their non-Native counterparts in agencies or academic institutions (see e.g. Williams and Hardison 2013). Studies of how Traditional Ecological Knowledges have been collected and utilized suggest that governmental and academic institutions repeat the mistakes of the past by forcing TEK into western frameworks incompatible with holistic worldview from which the knowledge emerges (Simpson 2004). This misuse of indigenous knowledge is a form of assimilation that is unacceptable. As Harding et al 2012 note, ‘Neither the standard human subjects requirements nor Intellectual Property Rights rules give adequate con­sideration to sovereignty or aboriginal rights, which is one of the reasons that inclusive dec­larations of indigenous rights have been pub­lished by the United Nations (2007) and are now recognized in principle by the world’s major powers, including the United States” (6).

In 2014, an ad hoc group of Tribal leaders, Tribal scholars and others came together in response to a request from the Department of Interior Advisory Committee on Climate Change and Natural Resources Science to develop “Guidelines for Considering Traditional Knowledges in Climate Change Initiatives.” The Guidelines is an informational resource for tribes, agencies, and organizations across the United States with an interest in understanding traditional knowledges in the context of climate change. The purpose of the Guidelines is to provide foundational information on the role of traditional knowledges in federal climate change initiatives, to describe the principles of engaging with tribes on issues related to traditional knowledges, and actions for federal agencies and tribes to consider that will establish processes and protocols to govern the sharing and protection of TKs. The Guidelines are intended to foster opportunities for indigenous peoples and non-indigenous partners to braid traditional knowledges and western science in culturally-appropriate and Tribally-led initiatives. Other powerful documents include Article 31 section 1 of the UNDRIP which states:

“Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

This past year the National Congress of American Indians issued Resolution #13-035 Request for Federal Government to Develop Guidance on Recognizing Tribal Sovereign Jurisdiction over Traditional Knowledge. The resolution begins by noting the recent interest in Traditional Ecological Knowledge by non-Native agencies and proceeds to outline the sacred obligations, sovereign rights of Tribes to control knowledge that are centrally at stake before asking ‘that the Federal government work with tribes to develop appropriate guidance on how to approach tribes for access to traditional knowledge . . .and with its funding agencies to ensure respect for and protection of these rights in all federally-funded projects . . .” The document is important and worth quoting at length:

WHEREAS, there is increasing acknowledgement that Indian tribes possess traditional knowledge that is equivalent to the value of scientific knowledge in solving environmental problems caused by global environmental change and climate change; and WHEREAS, traditional Tribal knowledge is a core part of our identity and ways of life, is highly spiritual and carries obligations for its appropriate use; . . . WHEREAS, in this context, Federal agencies, scientists and others are approaching tribes for access to their traditional knowledge and funding traditional knowledge compilation projects without guidance; and WHEREAS, the Federal government, in accord with the federal trust responsibility, should recognize the sovereign rights of tribes to control access to and the use of their traditional knowledge and the right to free, prior and informed consent (FPIC) to give or deny access to it;. . . WHEREAS, the emphasis on the utilization of traditional knowledge should focus on support for its application by tribes to solve environmental and climate problems without the need for sharing it; and WHEREAS, in those cases where traditional knowledge may be shared by the tribes, measures need to be developed to ensure that it is used appropriately, that tribes are protected in policy and law against its misuse and that the tribes are able to determine and receive benefits from its use; . . .

Tribes have some protections against disclosure of knowledge under very specific conditions as per the Indian Self Determination Act,[1] but if Tribes desire to collaborate with other agencies, once data are recorded in print they are subject to mandatory disclosure under the Freedom of Information Act. This fact alone is obviously a huge barrier for intergovernmental collaboration (see also mention of this issue under that sub heading in this chapter). Federal Protection against the mandatory disclosure of Tribal knowledge is therefore urgently needed. Existing protective exceptions to FOIA such as those that guard against disclosure of the location of endangered species, could provide an example or parallel avenue for the expansion of policy to respect Tribal sovereignty.

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3) Failure to Enforce Federal Tribal and Public Trust Responsibilities

“The creation of public land has had devastating implications for tribes, their members, and Tribal sovereignty. Federal land management has often led to the loss or direct expropriation of Tribal land and resources, jurisdiction, and control. As a result, the physical boundary between Indian country and federal land is complex”

–King, 2007, 7

“The public trust doctrine makes clear that, as trustees, state and federal governments do not have unilateral power as a monarchy or dictator would. The original citizens and founders of this nation never gave our governments the power to destroy what is essential for our collective survival and prosperity. As beneficiaries of this trust, we share enduring public property rights in those resources, rights that hold constitutional force. . . .[Public trust] conceives of government officials as public trustees rather than as political actors. It imposes on them, as trustees, a strict fiduciary duty of loyalty to the beneficiaries — and only the beneficiaries.”

–Mary Christina Wood, 2014, 11-14

Land that is now managed by the Federal Government has been Indian Country long before the arrival of Europeans or the creation of a United States. Tribal trust interests are “part of a foundational bargain with the United States” Tsosie (2003). Legal scholar Mary Wood (2003) describes the Tribal trust as “a principle that arises from the native relinquishment of land in reliance on federal assurances that retained lands and resources would be protected for future generations. It bears rough analogy to nuisance and trespass law. Ownership of land carries corollary rights of government protection-the right to seek judicial redress against harm to property. The Indian trust responsibility is protection for property guaranteed on the sovereign level, from the federal government to tribes.”

In her 2014 Keynote Address to the Tribal Environmental Leadership Summit Mary Wood describes how the trust framework characterizes the present ecological crisis “not as a political issue, but as a sovereign obligation that imposes an active, mutual duty of protection. A longstanding principle of trust law holds that trustees may not sit idle and let trust assets deteriorate on their watch.” Yet although the Government has this trust responsibility to protect Tribal off-reservation resources, that trust has been violated: “Traditional lifeways that reach back literally thousands of years are poised in jeopardy along with the natural resources upon which they depend. Across Indian country, many tribes are at the brink of losing their fish and wildlife resources, having their land and water supplies contaminated, or having their sacred sites destroyed forever” (Wood, 2003, p). Through their legal scholarship Wood and others stress the importance of reminding government decision makers of their legal obligations as fiduciaries (see also Tsosie, 2003, 2013).

The concept of Tribes as co-trustees or co-tenant of natural resources also exists within this public trust framework: “As the original sovereigns on this continent, tribes represent the original trustees. Their remarkable long-term stewardship of resources – sometimes sustained over the course of millennia – provides a supreme example of ecological fiduciary care” (ibid, 14). Wood goes on to note how the Ninth Circuit Court characterizes the tribes and the states as co-trustees. “In the Pacific Northwest treaty fishing cases, courts have described tribes and states as analogous to “co-tenants” of a common asset (their shared fishery).[2] Using the same logic, we could think of tribes as co-trustees with respect to all shared resources, including migratory fish and wildlife, atmosphere, and waters that flow off the reservation. . . .” (ibid, 15).

Just as they have with the case of the shared fishery of the Columbia River Basin, Tribes can assert their standing as co-tenants of water, forests and more. But because they are not currently recognized, these rights must be asserted through legal action. Parallel developments in the use of public trust doctrine in relation to climate change, and the responsibility of the government to protect the common atmosphere have relevance for the enforcement of Tribal trust. Wood calls for tribes “to exert leadership in the policy realm, and potentially assert claims under the law, as co-trustees of the atmospheric trust.” (ibid, 1-2). The NCAI submitted a brief in support of youth plaintiffs in the current federal Atmospheric Trust Litigation.

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Federal Trust duties to the Karuk and other Tribes also include those established in the American Indian Religious Freedom Act (AIRFA) of 1978 protection of Karuk sacred sites and religious rites. Religious freedom is intimately related to the preservation of self-determination and governance. In addition to AIRFA, the National Historic Preservation Act also calls for the protection and preservation of “living cultures”. This Act in current applicability, merely works to preserve information relevant to Tribal cultures as though they no longer exist; American Indian people are still here and this Act should afford us the right to be who we are intended to be in this place.

The recent MOU between the Advisory Council on Historic Preservation and the Departments of Agriculture, Defense, Energy and Interior described in Chapter One is designed to strengthen the protection of Indian sacred sites. The MOU commits the participating agencies to “work together on developing guidance on the management and treatment of sacred sites, on identifying and recommending ways to overcome impediments to the protection of such sites while preserving the sites’ confidentiality, on creating a training program for federal staff and on developing outreach plans to both the public and to non-Federal partners.” Note however that this language assumes that Tribes are static entities of the past rather than active joint tenants or “co-sovereigns” in the management of these lands in the present. Thus more meaningful implementation of this new Sacred Sites policy could take place through expanding the application of joint-tenancy and co-sovereignty discussed in previous section. Karuk Eco-Cultural Restoration Specialist Bill Tripp notes that “sacred sites principles in the MOU updates should be used to build a bridge from agreement in principle to true self governance and self determination. This rebuilds Tribal purpose for being upon sacred lands and practices, and extending these throughout the territorial landscape.” Tripp sees a key approach to moving forward in the language regarding taking sacred sites (i.e. cultural management areas) and funding section 110 activities at Tribal THPO departments to the assess the sacred sites as what are known as Traditional Cultural Properties’. From there Tribes could identify the family groupings associated with these sacred sites and ceremonies to tie the management of the land to principles maintained in ceremonial processes.

In all this Tribes must be the ones to determine their own sacred areas. Leaf Hillman notes: “Among the primary goals of the US Forest Service Sacred Sites Policy and the recently adopted Interdepartmental MOU is the development of effective plans and strategies for the long-term protection and management of sacred sites located on Federal lands, thereby reducing conflicts with Tribes and Native American religious practitioners. Therefore, critical to achieving this goal is an implicit understanding and acknowledgement that sacred sites, wherever located, are sacred sites. The Native American religious practitioners who access and utilize these sacred sites know what is important in terms of protecting that on-going use. Tribes and the individual practitioners are the experts, and are the only ones who can determine what constitutes effective protection measures and strategies.”

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4) Changing Political Terrain and Laws of other Sovereigns Can Diminish Tribal Sovereignty

As the quote that opens this chapter describes, Native struggles to retain and reclaim access to subsistence resources, cultural use species and spiritual practices more often than not have put them in conflict with Federal and State agencies whose policies and legal practices form barriers to Native revitalization (Wilkinson 2005). Now in the face of climate change, new institutional barriers to Tribes have emerged (see Whyte 2013).

The notion that environmental degradation may have implications for Tribal sovereignty has become an especially important theme within emerging scholarship on climate change (Abate and Kronk 2013, Tsosie 2013, Whyte 2013). As culturally important species move or disappear with landscape change, Tribal claims and jurisdictions over access to those species may be affected. Furthermore, climate change is rapidly reshaping the legal landscape: new problems require new judicial rulings. And because there are still very few comprehensive Federal laws applying to either the adaptation or mitigation of climate change, emerging regional, state, and local efforts have emerged ad hoc. In the absence of an overarching legal framework Tribes face potential loss of acknowledgement of their jurisdiction if they are excluded from or cannot keep up with the multiple and rapidly changing dynamics between federal and local actors (Cordalis and Suagee 2008).

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5) Organizational Barriers to Conducing Traditional Management on Off-Reservation Lands

Next we describe a series of what can be called “organizational” barriers to Tribal abilities to enact management in the landscape. These include the coupling of the US Forest Service funding structure to commodity production, the move towards conceptions of sovereignty based on reservations rather than Tribal territories and limits in the structure of Tribal compacting authority.

Coupling of Forest Service Funding Structure to Commodity Production

Forest Service management is set up around the assumption of commodity production (see also discussion in Chapter Two). As a result the vast majority of Tribal uses including as a source of water and food, and the location of spiritual practices are unsupported and unseen, if not overtly prevented in the course of Forest Service planning and land use practices. Tribal subsistence economic activities are also invisible. The commodity driven organizational structure of the Forest Service is linked specifically to the under-realized potential of the Tribal Forests Protection Act. Funding for projects such as those under TFPA which ostensibly reflect different values, and which would save money in long run are dependent upon Congressional appropriations. For example, multiple reports indicate that the cost savings of Tribal management activities such as traditional burns remain under-funded. Citing from the 2013 report: “The ability to fund TFPA projects has largely been dependent on Congressional appropriations because opportunities to defray treatment costs (e.g., goods for services) are becoming increasingly scarce due to the decline of viable markets for forest products” (2013,1).

Karuk Eco-Cultural Restoration Specialist Bill Tripp notes “It is not only the funding constraints of the commodity focus that limits the TFPA from potential success, but also the fact that the US Forest Service uses commodity driven management concepts in formulating government to government relationships. As a result, engagement mechanisms are not conducive of a true and equal decision making process under law. The federal agency may be delegated the “decision authority” due to the “Trustee” factor, but as a “sovereign beneficiary” self-determination should determine the who how what where when and why of the situation. Without taking this approach, Tribes will be perpetually assimilated trough factors of neo-colonialism, intimidation, and coercion, rather than achieving consensus, or informed consent.”

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Use of “Reservation Sovereignty” rather than “Territorial Sovereignty”

Definitions of sovereignty change over time and in accordance with the actions of policymakers and judicial rulings. One such distinction is the notion of sovereignty as linked to reservations, versus sovereignty that is territorial. According to the Indian Self Determination Act, the formula used for funds allocation is based on a Tribe’s reservation land base, e.g. the notion of reservation sovereignty. This conception means that for the Karuk and many other Tribes who desire to expand knowledge sovereignty by managing off -reservation potential funding is so minute that it is of no benefit. If however, the formula were calculated for a Tribe’s territory rather than a reservation it would enable the management of a much larger area.

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In another example, the National Cohesive Strategy for Wildland Fire Management is broken down to the county level to establish a process for determining priority socio-political delineations to address fire. However, fire as a process responds to geography and climate, not socio-political boundaries. During the drafting of this plan it was recommended that Tribal territories be used since they more accurately encompass changes in eco-region, or eco-type, yet can be narrowed down to a socio- political scale small enough to weigh factors against each other in the interest of aligning national priorities to a standardized set of sub geographical delineations. Although there was some level of agreement that Tribal territory delineations would make more sense, the fact that Tribal territories had not been defined became an irresolvable factor given the timeframe for completion of the strategy.

BIA trust land formulas dictate Tribal fire budgets. Although Federal and State jurisdictional delineations have been well funded and have gained recognition of autonomy, Tribal jurisdictions as defined under the principles of self- determination do not receive such privileges. If Tribes use the compacting authority, they will be greatly underfunded and will not be able to meet the need due to the fragmentation of landscape jurisdictions and associated responsibility delineations. These would need to become intergovernmental formulas as to how much it would cost have established intergovernmental program efficiencies.

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Limits and Structure of Tribal Compacting Authority

“We still do not yet have a Federalist structure, that all three of those sovereigns fits into, a structure that truly recognizes sovereignty. Such a Federalist system wouldn’t be compartmentalized. It would apply to all federal agencies and would break down the institutional barriers that are built up.”

— Leaf Hillman, Director Karuk Tribe Department of Natural Resources

Passage of the 1975 Indian Self Determination and Assistance Act and expanded actions in the 1994 Tribal Self-Governance Act provided a powerful mechanism for transferring authority over the management of federal land to Indian tribes. The 1994 Act acknowledges in particular the effect that land management by federal agencies has had on Tribal sovereignty (see e.g. King 2007). Both Acts are designed to provide means for enhanced Tribal participation in federal land management. One such mechanism is Tribal compacting authority. This powerful tool is presently limited in a number of ways that are especially relevant for the ability of Tribes to manage off reservation lands. For example, the Indian Self Determination and Education Assistance Act only provides the authority for Tribes to compact with the BIA and Indian Health Service programs. It would be beneficial to expand the ability of Tribes to compact with all entities under the DOI, EPA and USDA. This situation would enable Tribes to acquire an intergovernmental compact and reinvest portions of these programs to apply funding sources with a similar or parallel mission focus upon a common landscape to achieve multiple objectives. As Bill Tripp of the Karuk Department of Natural Resources notes “We could be funding programmatic activities, and supporting our local partnerships and move forward over time with activities on a non-competitive basis that if compacted would enable us to permanently assume those responsibilities on the territorial land base.”

As noted in the opening quote, the lack of a more comprehensive compacting authority is a function of limits within the Federal structure. Karuk DNR director Leaf Hillman articulates how “We need to have not only existing authorities, but there needs to be an emphasis on this within the Federal structure, not just within the Forest Service or a within any particular agency. “ The ability to enact expanded contracting options is built into the NCWFMS: “Federal stewardship end-result contracts, compacts and/or agreements can be entered into by Tribes, communities, states, and for-profit or non-profit organizations to conduct fuels and restoration activities on nearby BLM or Forest Service lands” (2012 p. 33). While the creation of new Compacting Authority requires an act of Congress, intermediate steps could include the authorization of transfer of funds from appropriations budget from the USFS to the DOI and directly to a specific Tribe for the purpose of gaining efficiencies in the wildland fire management program as outlined in the 2009 Omnibus Appropriations Act (see Chapter One). Though this would not enable permanent compacting as recurring funds, and would require indirect costs to follow the transfer, it could serve a “pilot” purpose until such time funds could be reinvested in DOI through appropriations language for integration with the beneficial Tribal compact. Note this is congruent with recommendation #4 of joint Intertribal Timber Council and USFS review of the Tribal Forest Protection Act to “Explore options and opportunities to advance use of Tribal contractors who can promote economic development, use of goods and services and increase Tribal employment.”

In addition to the limited ability to form compacts with Federal agencies, Tribes have little or no compacting authority with States. While SEC. 512e of the Indian Self Determination Act on State Facilitation specifically notes that “States are hereby authorized and encouraged to enact legislation, and to enter into agreements with Indian tribes to facilitate and supplement the initiatives, programs, and policies authorized by this title and other Federal laws benefitting Indians and Indian tribes” . . .within California the only compacting authority between States and Indian Tribes has been to enable the creation of casinos. Wider compacting authority with states has yet to be implemented. In California, Executive Order B-10-11 recognizes Tribes’
sovereign authority over their members and territory, creates a Tribal advisor who meets with the Tribes to discuss state policies that affect Tribal communities and reviews state legislation and regulations affecting Tribes. This represents a promising development for the preservation of Tribal knowledge sovereignty.

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Limited Application of Forest Service Contracting Options

One mechanism for Tribes to receive necessary funds to conduction traditional management is through contracts from agencies. Existing contracting authority lumps Tribes into the category with private companies or state and local governments. Participating in such arrangements can weaken Tribal sovereignty. The ability to enact expanded contracting options is built into the NCWFS: “Federal stewardship end-result contracts, compacts and/or agreements can be entered into by Tribes, communities, states, and for-profit or non-profit organizations to conduct fuels and restoration activities on nearby BLM or Forest Service lands” 2012, p. 33. This recommendation is directly in line with one of the two objectives of Phase II of the Cohesive Strategy for Wildland Fire Management that requires use of the most effective combination of grants, agreements, contracts and compacts to conduct a wide range of activities from management to planning, to re-assessment.

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6) Barriers to Intergovernmental and Interagency Project Collaboration

One key recommendation of the 2013 Phase III National Cohesive Wildland Fire Management Strategy is to “Expand collaborative land management, community and fire response opportunities across all jurisdictions, and invest in programmatic actions and activities that can be facilitated by Tribes and partners under the Indian Self-Determination and Education Act (as amended), the Tribal Forest Protection Act, and other existing authorities in coordination with the UN Declaration on the Rights of Indigenous Peoples” (p. 5).

Lack of Agency Knowledge Concerning Federal Tribal Trust Responsibilities

Another factor that creates structural limitation to the ability of Tribes to maintain sovereignty over their traditional knowledge and to carry out traditional practices includes limited Forest Service understanding of government-to-government relationships and agency trust responsibilities to Tribes and limited accountability for violations of these responsibilities. This barrier was highlighted in the recent Fulfilling the Promise report reviewing limitations to the implementation of the Tribal Forest Protection Act. The document notes that Forest Service personnel themselves raise this issue: “Understanding of government-to-government relationships and agency trust responsibilities to Tribes is variable. FS staffs are generally aware of Tribal-federal policies, such as government-to-government relationships, self-determination, and consultation requirements and of concepts such as trust responsibilities. However, understanding of how those policies and concepts differ from general agency responsibilities for interacting with the general public or stakeholder groups is often lacking. At the local level, FS staff may not be familiar with the cultural, spiritual, and economic relationships Tribes have with the land. Uncertainty regarding protocols and processes to implement those policies within the context of unique Tribal relationships and rights (e.g., language, appropriate interactions within Tribal organizational structure, sacred sites, customs, ceremonies and practices, traditional foods and medicines, reserved, retained, and treaty rights, court decrees, agreements, etc.) may also be obstacles.”

As per the recommendations of joint Intertribal Timber Council and US Forest Service review of the Tribal Forest Protection Act: Expand Forest Service understanding of the Tribal Forest Protection Act authority, as well as the process of proposal development, review, and implementation. TFPA may be an effective authority if the Agency concerned truly honors self-governance and self-determination.   Agency interpretation in the interest of complete and perpetual control goes against these principles and will ultimately erode government to government relationships. Create a joint Tribal ITC-USFS working group to assist the agency in developing educational materials to enhance the understanding of the TFPA, and to help guide both the USFS and their Tribal partners through the process of proposal development, project review, and implementation. The USFS should solicit participation in the joint working group from interested Tribes within each region. The US Forest Service should foster and encourage greater collaboration with Tribes in the development and implementation of TFPA projects to ensure outcomes that fulfill the greatest mutual benefits to both parties. Note that there are many other barriers to collaboration that could be mentioned. More accountability for violations is fundamentally necessary. The absence of personal relationships across agencies is frequently raised as a barrier, but this is discussed in Chapter Two as an example of a cultural rather than institutional barrier, although they are of course related.

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7) Limits in Tribal Capacity

The above structural barriers to implementing Tribal traditional management work to create a compounding problem: limits on Tribal capacity in the form of staff, and legal and economic resources. This becomes a circular problem whereby if Tribes cannot access funding to manage off-reservation lands, the lack of funds limits overall Tribal capacity which in turn further constrains the ability of Tribes to exercise sovereignty. On the other hand, if Tribes could receive more funding for the management of off-reservation lands they would have greater capacity for participation in lager policy conversations, including those within the shifting terrain of climate change policy. Yet problems such as current funding formulas reflecting reservation rather than territorial sovereignty as mentioned above, in turn further constrain efforts to maintain knowledge sovereignty.

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8) Absence of Applicable Data and Dominance of Non-Tribal Research Agenda

To date the research questions and priorities of Universities and Federal and state agencies related to land management have reflected the knowledge and interests of non-Native agencies and scientists. This dominance of research agendas, research questions and research practices by non-Tribal people has led to what is at best incomplete understanding of forest and human-ecological systems, and at worst a gross mischaracterization regarding the nature of human-ecological systems. The dominance of non-Tribal research agendas is also mentioned also in Chapter Two as many of the problems emerge from cultural assumptions that humans and nature are separate. The lack of applicable data that results from the overall Western or non-Native research agenda is both a cultural and an institutional barrier because existing understandings of the world drive both policy and best practices. Priorities for additional research mentioned throughout this document include: The non-Native cultural assumptions about the world described in Chapter Two including conceptions of the nature and use of knowledge and the relationship between people and the natural world translate into research priorities, questions, data and peer-reviewed articles that re-shape knowledge around non-Native worldviews. The near total absence of data or peer reviewed papers from the perspective of Native peoples such as subsistence uses of the forest, social and cultural benefits of traditional activities, social impacts of federal policies such as fire exclusion and more works to further justify and legitimize non-Native perspectives. Without data or knowledge of numerous social and economic aspects of forest use the social impacts sections drawn up in NEPA documents are grossly inadequate. Equally problematic, the human and ecological benefits of Tribal management remain invisible and unused.

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[1] Whereas title I of the Indian Self-Determination and Education Assistance Act, Public Law 93- 638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9 indicates “in the case of projects related to self determination, the Freedom of Information Act does not apply to records maintained solely by Indian tribes and Tribal organizations,” the sharing of knowledge by tribes with other entities is in written form it is subject to FOIA.

[2] Puget Sound Gillnetters Ass’n v. U.S Dist. Court for W. Dist., 573 F.2d 1123, 1126 (9th Cir. 1978) (explaining that the treaty established “something analogous to a co-tenancy, with the tribes as one cotenant and all citizens of the Territory (and later of the state) as the other.”).

 

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