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Implement Forest Service programs and activities honoring Indian

treaty rights and fulfill legally mandated trust responsibilities to the

extent that they are determined applicable to National Forest System

lands (American Indian/Alaska Native Policy (FSM 1563)).

• Visit our tribal neighbors. Learn about their treaties and rights.

• Talk with them about areas of mutual interest.

• [Endeavor to] reconcile Indian needs and claims with the

principles of good management, multiple use, and national forest

laws and policies.

• Attempt reasonable accommodation without compromising the

legal positions of either the Indians or the Federal Government.

• Work together to develop ways to accomplish the goals of this

policy.

Section 2: Treaty Rights and

Forest Service Responsibilities

This section includes information about—

• Treaties

• Treaty Rights on National Forest System Lands

• Characteristics of Treaty Rights

– Grazing Rights

– Hunting and Fishing Rights

– Gathering Rights and Interests

– Water Rights

– Alaska Native Subsistence Rights

• Trust Responsibilities

• National Environmental Policy Act (NEPA) Consultation

• Cooperation in Management

The United States obtained the vast majority of public domain land in the

lower 48 States by signing treaties with Indian tribes. Approximately 60 of

these tribes have treaties that contain some rights to off-reservation lands

and resources. Other laws define Alaska Natives’ rights to subsist from the

natural resources of the land (described in this section under Alaska

Native Subsistence Rights). Treaties are Federal law.

The Federal/Tribal relationship is one often described as a guardian/ward

relationship. Under differing laws, different departments, executive

branches of government, and agencies have different responsibilities. The

Secretary of the Interior, for example, has specific trust-holding responsibilities not delegated to any other department or agency. The Federal trust
42

responsibility is based upon a “corpus” or “holding” of assets such as land.

The Department of the Interior’s Office of American Indian Trust, has

defined the trust relationship to include the protection of treaty rights. This

will be discussed further in this section.

Alaska Native Rights In the lower 48 states, the United States used treaties to create public

on Federal Lands domain land and reserve certain use rights to tribes. There was no similar

process that applies to the lands Alaska Natives have inhabited for

thousands of years. Alaska political leaders succeeded in achieving

statehood, but aboriginal land claims were not resolved as Alaska became

the 49th state. Statehood brought momentum to the Native land claims

movement, which basically asserted that the United States had not justly

compensated Alaska Natives for the lands taken at the time of the Treaty

with Russia. “The use and occupancy title of the Tlingit and Haida Indians

was not extinguished by the Treaty of 1867 between the United States and

Russia, nor were any rights held by these Indians arising out of their

occupancy and use extinguished by the treaty. The negotiations leading up

to the treaty and the language of the treaty itself show that it was not

intended to have any effect on the rights of the Indians in Alaska, and it

was left to the United States to decide how it was going to deal with the

native Indian population of the newly acquired territory.”

In the early 1960’s, the State of Alaska began to select public domain land

that would be placed under State jurisdiction. This created a direct threat

to the Alaska Natives’ aboriginal land rights and Native leaders organized to

protest the selections the state was making and sought congressional

settlement.

Native representatives testified at numerous hearings and mounted a vast

lobbying and education effort until finally, in 1971, Congress passed the

Alaska Native Claims Settlement Act (ANCSA). This significant legislation was

unprecedented in terms of its magnitude and complexity.

Even though ANCSA articulated new public land law, it remained silent on

the nature, extent, or definition of Alaska Native tribal governments. Thus,

when the Forest Service considers the relationship between Alaska Natives

and the Federal Government in its proposed actions and planning, we must

be conscious not only of present legislation, but of past legislation, policies,

and legal principles which culminated in the present Federal policies. Such

policies continue to evolve, further defining and determining the nature of

this unique legal relationship between Alaska Natives and the Federal

Government.

ANCSA in some respects was a treaty—a law—with the U.S. Government. In

return for a grant of title to about 44 million acres and other benefits for

Alaska Natives, the act extinguished aboriginal title to the remaining lands

Alaska Natives traditionally used and occupied. However, Congress wrote

the act to deliberately exclude traditional features of treaties.

• It excluded reserves of land for exclusive use and occupancy, termed

“reservations,” in the lower 48.
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• It made provisions for addressing the Bureau of Indian Affairs (BIA) or

their delegated trust responsibilities for Indian-owned land and

resources.

• Alaska Natives were not signatories to the act; American Indians were

signatories to treaty documents negotiated by the U.S. before 1871.

The resolution of ANCSA provided a battleground for two dissimilar value

systems—that of the Alaska Natives, whose tribal perspective viewed land

and its resources as something of value to be passed on to future generations of tribal members, and that of Congress, which viewed Native corporation land as an asset that could be sold or even lost in risky commercial

ventures.

Nonetheless, ANCSA provided for the grant of title to about 44 million acres

to the Alaska Natives and provided for continued efforts to protect Native

subsistence rights (Conference Committee Report).

ANCSA is the product of two Federal Indian policies:

• The Termination Policy of the 1950’s

• The Self-Determination Policy of today

While the language speaks of self-determination, the overall goal of ANCSA

was termination and assimilation. Alaska Natives were given full control

over their land and money; however, Congress assigned control not to

tribal governments, but to State-chartered Native corporations.

Federal courts generally support the special political status of Alaska

Natives. However, complexity, ambiguity, and contradiction have not been

eliminated from Indian law and policy. Even where policy seems consistent,

there is still room for dispute.

Given the ambiguity of the record and political resistance to claims of

“sovereignty” in Alaska, Alaska Natives have turned to practical political

and social actions to strengthen their special status and cultural identities. Alaska Natives’ special status is ultimately a political question, not a

legal one, in which status depends less on what Federal policymakers say,

than on what Alaska Natives choose to do.

The Secretary of the Interior has defined which Alaska Tribes and groups

are Federally Recognized. A full listing of Federally Recognized Indian Tribes

is found in the Federal Register/Vol 51, No. 226/Wednesday, November 13,

1996/Notices (pp 58211–58216). A copy may also be found in Appendix C.

Treaties Indian land title was recognized in varying ways when European countries

arrived in the Western Hemisphere. The U.S. Government negotiated

Treaty Language treaties with Indian tribal governments for western expansion, to keep the

peace, and to add new states to the Union. American Indian treaties were not

a grant of rights to tribes, but rather a grant of rights from tribes, with the

Indian tribes retaining all of the powers and rights of sovereign nations

granted by the tribe pursuant to the treaty or taken from the tribe by Federal

statute. Extinguishing Indian title made it possible for the U.S. Government

to govern former Indian lands.
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Treaties between the United States and Indian tribes involving grants or

cessions of land were not ordinary land transactions where the seller

conveys all rights to the property sold to the buyer. In many treaties, however, Indians ceded (relinquished) title and interests to the United States

Government, while reserving certain use rights to themselves.

The term “ceded lands” has at least two definitions. This term was first used

in the Treaty of the Wyandots, 1789. Since that time, many treaties have

referred to land cessions made by tribes to the United States. Most Federal

agencies and Indian tribes prefer to use “ceded lands” to describe areas

that a tribe did “cede, relinquish, and convey to the U.S. all their right, title,

and interest in the lands and country occupied by them” ... at treaty signing or when reservations were established. This does not mean that tribes

ceded all their rights. Many tribes reserved rights on ceded lands—there

are places where rights remain intact and protected. The U.S Court of

Claims qualified the legal definition of ceded lands in 1978 when it said

that, in effect, “only lands actually owned by a tribe could be ceded to the

U.S.”

Sixty tribes negotiated and reserved their treaty rights on the public domain. After tribal representatives and U.S. officials signed treaties, they

were then ratified by the U.S. Senate. Although some treaties were signed

by unauthorized people, the treaty rights and provisions within them

remained a matter of law.

Treaty provisions in the lower 48 States varied depending on the lands and

the tribal groups involved in the negotiations.

The Supreme Court has found that treaties are superior to State laws, including

State constitutions, and are accorded equal status with Federal statutes.

Treaty Rights on The U.S. Constitution (Article II, Section 2, Clause 2) provides that treaties

National Forest are equal to Federal laws and are binding on states as the supreme law of

System Lands the land.

From 1777 to 1871, United States relations with individual Indian Nations

were conducted through treaty negotiations. These “contracts among

nations” created unique sets of rights for the benefit of each of the treatymaking tribes. Those rights, like any other treaty obligations of the United

States, represent “the supreme law of the land.” As such the protection of

treaty rights is a critical part of the Federal Indian trust relationship.

Off-Reservation (Property) Rights. Off-reservation (property) rights reserved by treaties on National Forest System lands are very important to

Indian tribes. The United States has a duty to protect these treaty rights, as

these rights are agreed upon by government-to-government agreement, or as

defined by statute or court decision.

Generally—

• The scope and allocation of treaty rights depends upon the language

in each treaty.
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• Some treaty rights occur on open and unclaimed or unoccupied lands

(this refers to lands not in private ownership at the time the treaty was

signed).

• Some treaty rights extend beyond present-day boundaries of reservations or Indian trust lands.

• Some treaties express a priority right for a resource; others a proportional, or in common, right; and others indicate a share to complement

subsistence provided by other sources.

• Treaty rights have been upheld in courts and exercised in various

ways.

• The Forest Service has no trust responsibility in treaty rights on reservation lands.

Off-reservation treaty rights that may be reserved on present-day national

forests include: grazing rights, hunting and fishing rights, gathering rights

and interests, water rights, and subsistence rights.

Grazing Rights The current Forest Service Manual 2235.1 gives direction to—

Give Indian Tribes fair and reasonable opportunity to enjoy

any treaty grazing rights reserved to them by treaty on

ceded lands. Grazing rights reserved by treaty are a continuing privilege beyond that enjoyed by other citizens. The

Forest Service shall not deprive Indians of treaty rights; but

the Regional Forester, acting on behalf of the Secretary of

Agriculture, may regulate enjoyment of the treaty grazing

right for the purpose of protecting and conserving Forest

Service administered resources.

Many western tribes have treaties that provide for pasturing animals on offreservation land. These rights, which have been upheld by the courts, have

been exercised in varying ways. The allocation of grazing rights on National

Forest System lands depends on the treaty language.

Based on consultation with tribes, the Regional Forester may authorize

treaty-based grazing under a Memorandum of Understanding. Tribal governments are exempt from the Forest Service policy against issuing term

grazing permits to governments. Therefore, Regional Foresters may issue

treaty-based term permits to them (FSM 2204.2(13). Before issuing such a

permit, the Regional Forester should consult the Office of General Counsel

(OGC). Treaty grazing permits are free of charge.

Hunting and On-Reservation Rights. Tribal governments have exclusive jurisdiction

Fishing Rights over the right of tribal members and non-tribal people to hunt and fish

within reservation boundaries. In a 1983 Federal Court decision, New

Mexico v. Mescalero Apache Tribe, the U.S. Supreme Court upheld the

tribe’s exclusive right to regulate non-Indian hunting and fishing on a

reservation. Federal courts have affirmed that treaty rights are tribal rights—

not individual rights. Generally, the Forest Service has no role in treaty

rights on reservation lands.

Characteristics of

Treaty Rights
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Off-Reservation Rights. Off-reservation hunting and fishing rights vary

depending on treaty language, subsequent legislation, and court decisions.

Treaty rights may extend to fish and wildlife habitats, including how the

Forest Service manages those habitats and how those habitats relate to

national forest timber harvest, recreation, water, grazing, and minerals

exploration. Some tribes believe that the U.S. Government is obligated to

manage wildlife and fish habitats to protect the tribes’ treaty rights.

Court decisions have confirmed that tribes are entitled to 50 percent of

harvestable salmon and steelhead in certain waterways covered by treaties

as long as escapement goals are met (U.S. v. WA, 1974, Dist Ct WA; U.S.

Supreme Court, 1979; also Lac Courte Oreilles v. Wisconsin).

In some treaties in the Pacific Northwest, the U.S. Government is obligated

to protect the tribes’ right to access “usual and accustomed grounds and

stations” and must assure that Forest Service actions do not prevent tribes

or their members from accessing such locations, exercising tribal rights,

and protecting treaty resources. Courts have held that if either hunting or

fishing rights are mentioned by treaty, both apply.

Gathering Rights The traditional way of life for many American Indian and Alaska Native

and Interests Tribes involves gathering and using products from their natural

surroundings. In some treaties, these rights were included under the term

“gathering rights.”

In negotiating treaty terms, many tribal governments reserved offreservation rights to gather miscellaneous forest products such as berries,

roots, bark from trees, mushrooms, basketmaking materials, tepee poles,

cedar for totem poles, and medicinal plants.

These products were often bartered, traded, or sold between tribes for fuel,

transportation, food, shelter, clothing, and cultural utilitarian items. In

some western treaties, tribes reserved the right to cut fuelwood and firewood for domestic purposes on off-reservation land.

An example of the treaty language that refers to gathering rights and

interests is “the right of taking fish at usual and accustomed grounds and

stations is further secured to said Indians in common with all citizens of

the territory, and of erecting temporary houses for the purpose of curing,

together with the privilege of hunting and gathering roots and berries on open

and unclaimed lands” (Article V, Treaty with Dwamish Suquamish, 1854).

Water Rights Indian Reserved Water Rights. Most western and midwestern states have

used the prior appropriations doctrine to allocate water. It is based on the

notion of “first in time, first in right.” Basically, under State law, a water

user obtains a right senior and superior to all later users if he or she

appropriates the water by (1) diverting water out of a watercourse, and

(2) putting it to a beneficial use for such purposes as irrigation (a major

water use in the West), mining, industrial, municipal, or domestic use.

Once these conditions are met, the water user has established an

appropriation date.
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Although Indian reserved water rights are not expressed in treaties, they

are inherent or implied rights. Ordinarily, State law applies to water rights

on Federal lands; however, Federal law applies to American Indian water

rights on reservation lands; their extent depends on the purposes for which

the reservation was established.

The reserved water right as applied to Indians is derived from Winters v. U.S.,

1908. This landmark Supreme Court case held that “sufficient water was

implicitly reserved to fulfill the purposes for which the reservation was established.” This Doctrine of Federal Reserved Rights established a vested right

(a right so completely settled that it is not subject to be defeated or cancelled) whether or not the resource was actually put to use, and enabled

the tribe to expand its water use over time in response to changing reservation needs. The quantity of water was determined by evaluating the purposes for which the Indian reservation was established and applied to all

uses—including irrigation of lands that were not currently serviced with a

water supply. This analysis includes information about current and

planned (future) reservation uses such as municipal, industrial, and

natural resources. The Winters Doctrine provides that tribes have senior

water rights and the national forests have junior rights. Some recent court

decisions have given Indian reservations priority water rights on Federal

lands, including national forests.

Both the Forest Service and Indian tribes have mutual interest in water

rights and claims since these rights and claims often occur in the same

geographic area and involve flows from the same stream for fish populations and their habitats, as well as maintenance of stream channels,

maintenance of wildlife populations, and maintenance and protection of

riparian areas.

Alaska Native Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in

Subsistence Rights 1971. To this day, some acclaim it as an outstanding settlement, while

others view it as the beginning of the end for Alaska Native people. While

earlier versions of ANCSA, at the insistence of Native spokespeople,

contained subsistence provisions, the law that was ultimately passed,

which granted Alaska Native people title to 44 million acres, remained

silent on the matter of subsistence. The accompanying Conference

Committee Report stated that the Interior Secretary possessed sufficient

authority to protect Native subsistence rights and that Congress wanted

the Secretary and the State of Alaska to do just that.

Because ANSCA failed to address subsistence, Congress included it under

the Alaska National Interest Lands Conservation Act (ANILCA) Title VIII,

which was signed into law in 1980.

Subsistence has many definitions depending on whom you speak to and in

what context. To the Western/European culture, subsistence means the

gathering and preparation of resources for nutritional purposes. To others,

it represents a lifeway. To Alaska Natives, subsistence represents the very

core of their existence as a people. It is a spiritual, cultural, physical, and

economic means of continuing their heritage. It is the essence of their

being.
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People living in remote rural villages are totally dependent on subsistence

activities to feed their families and to barter or perhaps to make some cash

through the sale of handicraft articles. In rural Alaska, a cash economy is

seasonal. Most money made by rural residents is spent on heating fuels,

snow machines, skiffs and outboard motors, ammunition, and clothing. A

majority of the food rural Alaska Natives consume is gathered through

subsistence activities. These activities include, but are not limited to

hunting; fishing; berry picking; canning, drying, and smoking fish; collecting and processing plants; and manufacturing arts and handicrafts.

Culturally and socially, subsistence activities are intertwined in the very

existence of village life. Celebrations, stories, songs, dance, and spirituality

are derived from subsistence activities. These activities teach skills that

determine the future success of younger tribal members as providers and

productive members of the village to ensure the perpetuation of the culture

for generations to come. Through subsistence activities, children learn

respect for the wildlife and fish that present themselves for use. They also

learn to share, respect, and provide for their elders, care for the land, and

coexist with other human beings and cultures.

Protection of subsistence activities is of vital importance to the Alaska

Native. Elimination of subsistence is viewed as the termination of the

Alaska Native culture.

Historically, as long as the waters and lands used for subsistence purposes

were not used by others for other purposes, there was no conflict with

subsistence. During the 16th, 17th, and 18th centuries, there was intense

international competition for the wealth of the New World. Alaska was

claimed under the “Rule of Discovery” by Russia. Alaska Natives lived

harmoniously within their ecosystems and did not experience a threat to

their way of life until Russia began commercial exploitation of Alaska’s

natural resources.

The “Rule of Discovery” held that the nation first arriving on the land in the

New World acquired complete title and domination over the land and its

inhabitants exclusive of other nations. The rule also included the taking

and exploitation of natural resources. Russian commercial activity had a

limited effect on Alaska Native subsistence. Russia’s activities were focused

on sea otters and Russian settlements were few and widely dispersed.

Russian activities ended with the Treaty of 1867, in which Russia sold all

its interest in Alaska to the United States for the sum of $7.2 million.

The U.S. Government’s concern for Alaska Native subsistence is not a

recent issue. Congress has dealt with subsistence as a distinct part of

Alaska Native policy for at least the last 45 years. When the Indian Reorganization Act of 1934 (IRA) was originally passed, it did not fully take into

account the unique needs of Alaska Natives. In 1936, the Indian Reorganization Act was amended to do so. With the signing of the Migratory Bird

Treaty, and since 1936, Congress has provided for Alaska Native subsistence by way of exception to wildlife conservation treaties and statutes.

There have been problems with this process, however. Exceptions have

many times been ineffective and rendered useless by the restrictive provisions of other treaties. Exceptions themselves can also be a problem. An
49

example is the 1966 Fur Seal Convention whereby the “method” exception for

harvesting of animals was rendered useless because the treaty makers

failed to recognize that Native subsistence culture depended on the “use”

made of wildlife and not on how the wildlife was harvested. However, this

does not mean that Congress’s early attempts to protect Alaska Native

subsistence were all failures.

The Walrus Protection Act, the Endangered Species Act, and the Marine

Mammal Protection Act all recognize the importance of Alaska Native subsistence use. These acts allow Alaska Native subsistence activities for the

specific purposes of food, clothing, and handicrafts. To ensure this protection, Congress has restricted the Secretary of the Interior’s authority to

regulate subsistence under the Marine Mammal Protection Act, and the

Endangered Species Act only if the taking “materially and negatively” affects

the “endangered or threatened” species.

When Congress passed ANILCA, Title VIII, it sought to “preserve for the

benefit, use, education, and inspiration of present and future generations

certain lands and waters in the State of Alaska that contain nationally

significant natural, scenic, historic, archeological, geological, scientific,

wilderness, cultural, recreational, and wildlife values” (P.L. 96–487

Sec.101(a)).

ANILCA also provided an opportunity for rural Alaskans engaged in a

subsistence way of life to continue to do so. Fish and wildlife subsistence

activities were to be managed in accordance with recognized scientific

principles. In Title VIII, Congress found that:

The continuation of the opportunity for subsistence uses by

both Native and non-Native rural residents of Alaska, on the

public lands and by Alaska Natives on Native lands is

essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic, traditional, and social existence;

The situation in Alaska is unique in that, in most cases,

there are no practical alternative means to replace the food

supplies and other items gathered from fish and wildlife

which supply rural residents dependent on subsistence

uses;

Continuation of subsistence opportunities on public lands

and other lands in Alaska is threatened by Alaska’s increasing human populations—with resultant pressure on

subsistence resources, by sudden declines in populations

of some wildlife species which are crucial subsistence resources, by increased accessibility to remote areas containing subsistence resources, and by fish and wildlife being

taken in a manner inconsistent with recognized principles

of fish and wildlife management;

In order to fulfill the policies and the purposes of the Alaska

Native Claims Settlement Act (ANCSA), and as a matter of
50

equity, it is necessary for the Property and Commerce

Clause of the Constitution to protect and provide the opportunity for continued subsistence uses on public lands by

Native and non-Native rural residents; and

The national interest in the proper regulation, protection,

and conservation of fish and wildlife by residents of rural

Alaska requires that an administrative structure be established to enable rural residents who have personal knowledge of local conditions and requirements to have a

meaningful role in the management of fish and wildlife and

of subsistence uses on public lands in Alaska. This is a

statutory right which can be regulated and Congress chose

to regulate it to the benefit of the rural user.

Section 804 of ANILCA declares:

Except as otherwise provided in this Act and other Federal

laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over

the taking on such lands of fish and wildlife for other

purposes.

Relative to how subsistence rights affect land use decisions, ANILCA,

Section 810, states:

In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public

lands under any provision of law authorizing such actions,

the head of the Federal agency having primary jurisdiction

over such lands or his/her designee shall evaluate the

effect of such use, occupancy, or disposition on subsistence

uses and needs, the availability of other lands for the

purposes sought to be achieved, and other alternatives

which would produce or eliminate the use, occupancy, or

disposition of public lands needed for subsistence purposes.

Section 810 requires the head of such a Federal agency to:

Give notice to the appropriate State agency and the appropriate local committees and regional councils established

pursuant to Section 805; (See P.L. 96–487, Section

805,(a),(b)&(c)).

Give notice of and hold a hearing in the vicinity of the area

involved; and

Determine that:

(a) Such significant restrictions of subsistence are necessary, and consistent with sound management principles for the utilization of the public lands;
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(b) The proposed activity will involve the minimal amount

of public lands necessary to accomplish the purposes

of such use, occupancy, or other disposition; and

(c) Reasonable steps will be taken to minimize adverse

impacts upon subsistence uses and resources resulting from such actions.

Section 811(a) of ANILCA directs the Secretary of the Interior to ensure

that:

Rural residents engaged in subsistence uses will have

reasonable access to subsistence resources on the public

lands.

Federal and State agencies will undertake research on fish,

wildlife, and subsistence use on public lands.

Data will be sought and local residents consulted to gain

special knowledge from those engaged in subsistence uses.

Findings and results will be made available to the State,

local, and regional councils and other appropriate persons

and organizations.

ANILCA Section 805(3)(D)(d) empowers the State of Alaska to implement

laws of general applicability which are consistent with, and provide for the

definition, preference, and participation in subsistence specified in ANILCA,

Sections 803, 804 and 805.

In 1989, the Alaska Supreme Court ruled that the subsistence priority for

rural Alaskans violated the State constitution. This holding prompted the

State of Alaska to discontinue its subsistence program on Federal lands. In

response, the Secretary of the Interior promulgated regulations for subsistence hunting and fishing on Federal lands in Alaska. In effect, the Federal

Government took over the management of subsistence on Federal lands in

Alaska. Both the State of Alaska and Alaska Natives filed suit, challenging

the legality of these regulations. The Ninth Circuit Court of Appeals upheld

the Federal Government’s exercise of regulatory authority over “subsistence

uses on Federal lands, waters, and interests therein in Alaska, including

waters subject to Federal reserved water rights.”

Trust The trust responsibility is the U.S. Government’s permanent legal

Responsibilities obligation to exercise statutory and other legal authorities to protect tribal

lands, assets, resources, and treaty rights, as well as a duty to carry out

the mandates of Federal law with respect to American Indian and Alaska

Native Tribes.

Federal Indian Policy and “trust responsibilities” have developed from court

decisions, congressional laws, and policies articulated by the President.

The trust responsibility is a legally enforceable obligation, a duty, on the part

of the U.S. Government to protect the rights of Federally Recognized Indian
52

Tribes. In several legal cases discussing the trust responsibility, the Supreme Court has used language suggesting that it entails legal duties,

moral obligations, and the fulfillment of understandings and expectations

that have arisen over the entire course of dealings between the U.S. Government and Indian tribes.

For the Forest Service, trust responsibilities are essentially those duties that

relate to the reserved rights and privileges of Federally Recognized Indian

Tribes as found in treaties, executive orders, laws, and court decisions that

apply to the national forests and grasslands. For Forest Service activities, the

trust responsibilities are defined primarily by the authorities listed FSM

1563.01 (a copy of which is in Appendix A), and by treaties which may apply

to specific areas of the National Forest System. Treaty rights on National

Forest System lands are interpreted and applied by the Court.

One of the Forest Service duties is to consult and coordinate land and

resource projects and activities on National Forest System lands

adjacent to or adjoining Indian tribal lands to—

• Consult with Federally Recognized Tribes with whom the United

States has a government-to-government relationship. (See Appendix C for a list of Federally Recognized Tribes.)

• Gain knowledge of adjoining Indian tribes’ interests and rights.

Seek this knowledge from within the Forest Service and from

Indian tribes.

• Determine if a tribe(s) has reserved rights by treaty or other

interests upon National Forest System lands. Work with your

Lands staff to determine if treaty rights apply.

• Honor rights that apply to National Forest System lands, consistent with other Federal laws.

• Seek the advice of other Forest Service staff or of OGC in applying

treaty rights.

• Consult with Indian tribes on plans, projects, programs, or activities that may affect the tribe’s reserved rights on the National

Forest System lands.

• Incorporate the information from such consultations into planning

documents and the decisionmaking process.

• Show tribes how their information was used.

• Facilitate access, consistent with Federal law, so that tribal

members may exercise rights reserved by treaty.

• Recognize that some, but not all, occupancy and use regulations

related to National Forest System lands may apply to tribes and

their members in the exercise of treaty rights.

• Consult between tribes, the Forest Service, and other parties as

necessary to resolve conflicts that may arise.
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Fulfilling the trust duty is accomplished through actions, not by writing books

or environmental documents, not through process or procedure. The duty is

redeemed by protecting a stream or animal habitat; by facilitating the

exercise of treaty rights or the traditional cultural practices of Indian tribes

and their members; and by continuing to work on a government-togovernment basis.

Mutual cooperation and the development of government-to-government relationships between the Forest Service and Federally Recognized American Indian

Tribes and Alaska Native Tribes should lead to the effective performance of

trust duties and responsibilities. Developing and sustaining these relationships is a fundamental action which fulfills these mutual responsibilities.

NEPA Consultation In 1994, President Bill Clinton held a Tribal Summit, hosting elected

representatives from all Federally Recognized Tribal governments within the

United States, where he articulated the government-to-government policy of

his administration. The following sections of his memorandum to heads of

executive departments and agencies refer to the role of government-togovernment consultation in planning. (A copy of the complete memorandum

is on page 7 in the introductory part of this document.)

a) Each executive department and agency shall consult, to the greatest

extent practicable and to the extent permitted by law, with Tribal

governments prior to taking actions that affect Federally Recognized

Tribal governments. All such consultations are to be open and candid

so that all interested parties may evaluate for themselves the potential

impact of relevant proposals.

b) Each executive department and agency shall assess the impact of

Federal Government plans, projects, programs, and activities on Tribal

trust resources and assure that Tribal government rights and

concerns are considered during the development of such plans,

projects, programs and activities.

Treaties, acts of Congress (which may apply in Alaska), and executive

orders after 1871, also obligate the United States and its agencies to fulfill

certain trust responsibilities. Planning documents should discuss this

complex and legal relationship. Certain reserved rights may need to be

protected by special land and resource management actions.

The Forest Service has an obligation to consult with Federally Recognized

Indian Tribes on a government-to-government basis throughout the Forest

Service planning process.

The National Environmental Policy Act (NEPA) of 1969 (P.L. 91–190) implementing regulations require Federal agencies to invite Indian tribes to

participate in the scoping process on projects or activities that affect them.

Tribes with treaty rights on National Forest System lands may also meet

with line officers in advance of the formal planning processes about their

reserved rights.
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Tribes may have reserved rights on present-day National Forest System

lands. They may also have resource or confidential information on a proposed project area.

• This does not mean that a forest or district must wait for tribal

concurrence.

• This does not mean that the time schedule needs to be arranged to

accommodate tribal response.

• It does mean the Forest Service should be consulting, communicating,

and coordinating regularly with the affected tribes.

Early consultation may simplify the planning process for proposed project

areas that contain sacred sites or artifacts by providing them with the

protection that they deserve.

Reserved treaty and subsistence rights outside reservation boundaries are

essentially exercised in common with non-Indian citizens. These rights may

even take place on former Indian lands which are now managed by the

National Forest System. Neither NEPA nor the Council on Environmental

Quality (CEQ) regulations mention these preexisting rights. A November

1993 directive signed by the Secretary of the Interior requires that environmental documents prepared by Interior agencies include a discussion of

American Indian reserved treaty rights and the effects a pending Federal

decision may have on these rights. As of yet, USDA does not have a similar

policy.

The following outline may apply to either a Forest Plan or a proposed land

management project. Environmental assessments do not require indepth

discussions—neither do small projects or undertakings that do not affect

reserved rights or tribal interests.

As technical advice to address the various aspects of American Indian

rights and interests, we recommend including document sections and

categories, titled and developed as follows:

• Initiate consultation prior to the public scoping announcement. Particularly

if a tribe has reserved rights upon National Forest System lands or

cultural/spiritual or other interests upon the area.

• Contact any tribal government that may be affected by the proposed action

or decision.
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NEPA Consultation

Chapter I—Purpose and Need for Action.

A. If restoration, rehabilitation, or enhancement of resources

constituting a treaty right or other reserved right are part of the

underlying need for a proposal, state this in the Purpose and Need

section of Chapter I. For example, a proposed action intended to

rehabilitate anadromous fish habitat or wildlife habitat in an area

where a tribe has a treaty right to fish or hunt wildlife should

include a discussion of the treaty right as a part of the underlying

need for the proposal.

B. If consultation with a tribe shows there is an issue related to

treaty rights or other rights or interests, discuss alternatives to

the proposal as early as possible. If necessary, develop mitigation

measures. Incorporate this analysis into Chapters II through IV.

C. Whenever A or B is applicable, include the following in the

document:

1. An excerpt from the treaty(s) applying to the area.

a. List the resources, related to the proposed action,

mentioned in the treaty, executive order, or statute.

b. Discuss any regulation that may also apply to these rights.

c. Illustrate and discuss the land area affected by the treaty

or executive order.

2. List the names of tribe(s) and their respective governing

bodies that may have an interest in participating in

government-to-government consultation.

D. If there is no significant issue related to treaty or other tribal

rights, place this “finding” and supporting documentation (such

as letters from the tribe or meeting notes) in the project record

and reference it in the NEPA document (in Chapter I; Chapter II,

where we discuss scoping and sorting of issues into

nonsignificant/significant (1501.7); Chapter IV; or in an

appendix. For some project proposals there will be no effect on, or

conflict with, American Indian rights. Once this finding has been

made and documented, no additional discussion/analysis is

required in the NEPA document.

E. In the case of broad, programmatic NEPA documents (such as the

EIS for a forest plan revision), Chapter I should discuss all treaty

and other rights and their relationship to the proposed action if

they are related to the purpose and need.
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Chapter II—Alternatives Including the Proposed Action

A. Whenever a proposed action may potentially affect lands that

support treaty resources—more than environmental

considerations are at issue. Treaty or other tribal rights may be a

part of the underlying need for the proposal, or there may be a

significant issue related to the treaty or other tribal rights;

Chapter II of the NEPA document should clearly indicate that the

proposed action and all alternatives meet Forest Service

requirements and comply with American Indian treaties,

executive orders, or statutory rights and address individual

Indian interests.

B. Where the alternatives use different means to assure that treaty

or other tribal rights are protected, Chapter II of the NEPA

document should include a comparison of these differences.

Chapter III—Affected Environment

A. Introduction: The first few paragraphs should include a short

reference to the treaty resources potentially affected by the

proposed action.

B. Trust, treaty, or subsistence resources and their location:

Discuss in general terms, what, if any, areas, sites, or streams

have or support treaty resources. This section can be brief yet

illustrate that more than environmental considerations are at

issue. In the case of programmatic documents such as EIS’s for

forest plan revisions, it should also include a map of any land

ceded to the United States via treaty or other document.

There should be a discussion of overall Forest Service land

management goals, including duties to honor treaties or acts of

Congress for subsistence use of resources.

Where possible, include the extent of the rights identified and

where these rights occur on the forest. The existence of a treaty

reserved right may hold a priority for a specific site or location

over a proposed action.

This discussion may also include certain cultural resources that

would have a direct effect on the proposed alternative and,

consequently, the Forest Service’s ability to maintain

confidentiality of the information gathered about cultural sites or

resources.

C. Environmental Components within the Project or Planning Area—

Each of these resources, if they are related to the proposed action,

needs to have associated with it, a discussion of a trust duty that

may impose upon the Forest Service a need for special
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consideration or protection. For a “project,” discussion can be

limited to those aspects related to the project. For a broader,

programmatic NEPA document, such as the EIS for a forest plan

revision, a more detailed discussion is needed for—

1. Topography (include a map of ceded lands or a reference to

them)

2. Climate

3. Water—an implied right that needs protection

4. Fish—a treaty or subsistence resource

5. Wildlife—a treaty or subsistence resource

6. Grasses—a treaty resource for gathering rights

7. Plants, Roots, and Bulbs—medicinal/spiritual or a reserved

right

8. Riparian Areas—how they affect fish and their habitats

9. Cultural Resources—while these are not reserved rights,

they may be tribal or individual Indian interests. Discussions

should remain consistent with existing cultural resource

laws and executive orders.

D. Decision Notice or Record of Decision—In decisions where the

treaty or other tribal rights were identified as a significant issue

within the proposed action, the decision document should explain

how this issue was considered in the decisionmaking process.

For some Forests and Regions this may be a first look at the unique

relationship that Federal agencies have with Indian Country.

(Please also refer to Forest Service Policy stated in FSM 1563—

Appendix A.)

CEQ References: The CEQ regulations (40 CFR 1500–1508) for

implementing NEPA refer to American Indian tribes and their role in

NEPA analysis in several places:

• 1502.16 (c)—Discussing effects of the proposed action on Indian

plans

• 1503.1 (a)(2)—Requesting comments from American Indian and

Alaska Native Tribes

• 1506.6 (3)—Providing notice to tribes when effects may occur on

reservations

• 1508.5—American Indian tribe as a “cooperating agency” in

NEPA analysis
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Cooperation in The Organic Act, the National Forest Management Act, and other similar

Management statutes require the Forest Service to manage National Forest System

resources in a manner that serves the needs of the general public.

National forest management must consider a myriad of rights, other than

treaty rights, to Federal land. While use conflicts may occur between these

various rights, they can generally be resolved by mutual effort.

Joint and comanagement continues to be an issue between the tribes and

the Forest Service. The tribes have interpreted joint or comanagement to

mean codecisionmaking. Others interpret it to mean shared management in

the sense of sharing information and ideas on management actions. The

Forest Service has not accepted these interpretations.

The Forest Service can usually provide for Indian gathering, hunting, and

similar reserved rights while meeting its land and resource mission. The

key to this success is mutual cooperation through consultation and agreement with affected Indian tribes and individuals.