[Federal Register Volume 81, Number 17 (Wednesday, January 27, 2016)]
[Notices]
[Pages 4638-4645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01615]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-HQ-NAL-2016-N002; FXGO1660091NALO156FF09D02000]
Native American Policy for the U.S. Fish and Wildlife Service
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability of final policy.
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SUMMARY: We, the Fish and Wildlife Service (Service or FWS), announce
that we have established a new Native American policy, which will
replace the 1994 policy at 510 FW 1 in the Fish and Wildlife Service
Manual. The purpose of the policy is to carry out the United States'
trust responsibility to Indian tribes by establishing a framework on
which to base our continued interactions with federally recognized
tribes and Alaska Native Corporations. 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.
DATES: The policy is effective as of January 20, 2016.
ADDRESSES: The Native American policy is available in the Fish and
Wildlife Service Manual at http://www.fws.gov/policy/510fw1.html.
FOR FURTHER INFORMATION CONTACT: Scott Aikin, Native American Programs
Coordinator, by mail at U.S. Fish and Wildlife Service, 911 NE 11th
Avenue, Portland, OR 97232; or via email at scott_aikin@fws.gov.
SUPPLEMENTARY INFORMATION: This Native American policy is available at
http://www.fws.gov/policy/510fw1.html, which is within part 510 of the
Fish and Wildlife Service Manual, the part titled ``Working with Native
American Tribes.'' The purpose of the policy is to articulate
principles and serve as a framework for government-to-government
relationships and interactions between the Service and federally
recognized tribes to conserve fish and wildlife and protect cultural
resources. The policy includes guidance on:
The relationship between the Service and federally
recognized tribes and Alaska Native Claims Settlement Act (ANC)
corporations,
Service employee responsibilities,
Government-to-government consultation and relations,
Communication,
Co-management and collaborative management,
Tribal access to Service lands and Service-managed
resources for cultural and religious practices,
Tribal cultural use of plants and animals,
Law enforcement,
Training and education,
Capacity building and funding, and
Guidance for implementing and monitoring the policy.
This policy is not meant to stand on its own. To effectively
implement this policy, the Service will update its U.S. Fish and
Wildlife Service Tribal Consultation Handbook, establish an Alaska
Regional Native American policy, and develop training so that Service
employees will be better able to perform duties related to this policy.
Overview of the Policy
We recognize that when the Service and tribes work together on
resource matters, our longstanding relationship is strengthened and
resources are better served. This policy provides guidance on
recognition of tribal sovereign status, Service responsibilities, and
opportunities for the Service and tribes to work together toward
natural and cultural resource conservation and access. The purpose of
this policy is to provide Service employees with guidance when working
with tribes and ANCs.
Section 1 of this policy recognizes the unique relationship that
Federal governmental agencies have with federally recognized tribes and
the U.S. Government's trust responsibility toward those tribes. It
explains that while this is a nationwide policy, the Service maintains
flexibility for Service Regions and programs to work more specifically
with the tribes and ANCs in their Regions.
Section 2 recognizes tribes' sovereign authority over their members
and territory, the tribes' rights to self-govern, and that government-
to-government communication may occur at various levels within the
Service and the tribes.
Section 3 describes communication, consultation, and information
sharing among the Service, tribes, and ANCs.
[[Page 4639]]
Section 4 sets out a range of collaborative management and co-
management opportunities where tribes, Alaska Native Organizations
(ANO), the Service, and others have shared responsibility.
Section 5 recognizes that, for meaningful cultural and religious
practices, tribal members may need to access Service lands and to use
plants and animals for which the Service has management responsibility.
Section 6 recognizes tribal law enforcement responsibilities for
managing Indian lands and tribal resources and encourages cooperative
law enforcement between the Service and tribes.
Section 7 invites tribal governments to work with the Service to
develop and present training for Service employees. It also makes
available Service technical experts to help tribes develop technical
expertise, supports tribal self-determination, encourages cross-
training of Service and tribal personnel, and supports Native American
professional development.
Section 8 establishes monitoring and implementation guidance for
the policy.
Section 9 describes the policy's scope and limitations.
Exhibit 1 includes the definitions of terms we use in the policy.
Exhibit 2 describes the responsibilities of employees at all levels
of the Service to carry out this policy.
Exhibit 3 lists the authorities under which the Service is able to
take the actions we describe in the policy.
Background and Development of This Policy
On June 28, 1994, the Service first enacted its Native American
Policy to guide our government-to-government relations with federally
recognized tribal governments in conserving fish and wildlife resources
and to ``help accomplish its mission and concurrently to participate in
fulfilling the Federal Government's and Department of the Interior's
trust responsibilities to assist Native Americans in protecting,
conserving, and utilizing their reserved, treaty guaranteed, or
statutorily identified trust assets.''
In July 2013, the Service convened a Native American Policy Team
(team) to review and update the policy. The team is comprised of
Service representatives from the Regions and programs. We also invited
all federally recognized tribal governments across the United States to
nominate representatives to serve on the team. A total of 16 self-
nominated tribal representatives from all of the major Regions across
the country joined the team to provide input and tribal perspective.
Although Service and tribal team members took part in writing the
draft, full agreement was not possible on every issue and some
differences remain. Understanding those issues, tribal representatives
continued to participate in an effort to improve the policy.
In November 2014, the Service invited federally recognized tribal
governments in each of its Regions and ANCs to consult on a government-
to-government basis. The Service provided an early working draft of the
updated policy for their review and input. A total of 23 of the tribal
representatives submitted written comments to further develop and
refine the draft updated policy.
From December 2014 to April 2015, the Service held 24 consultation
meetings and webinars within the Regions and nationally.
Representatives from approximately 100 tribes attended these meetings.
In March 2015, the Service revised the working draft of the updated
policy and distributed it for internal Service review throughout all
levels, Regions, and programs within the agency. We incorporated
feedback from the internal Service review and additional comments
received from tribal governments into a draft that we published in the
Federal Register.
Summary of Comments and Changes to the Final Policy
On August 3, 2015, we announced the availability of a draft of this
policy in a Federal Register notice (80 FR 46043) and requested public
comments by September 2, 2015. The Service reopened the comment period
for an additional 30 days in a Federal Register document published on
September 21, 2015 (80 FR 57014). The second comment period closed on
October 21, 2015.
We received approximately 34 comment letters on the draft policy.
The comments were from Federal and State government agencies, tribes,
ANCs, nongovernmental organizations, and individuals. Most of the
comments addressed specific elements, while some comments were more
general. We considered all of the information and recommendations for
improvement included in the comments and made appropriate changes to
the draft policy. We also made some additions and clarifications to the
policy that were not addressed in the public comments, but were
discovered through internal briefings and reviews during the policy
revision period. The following summarizes our responses to public
comments received.
Many of these topics are related to one another, and it is
sometimes difficult to categorize each into one discrete area of the
policy that it addresses. We have grouped similar comments together to
help readers understand our rationale.
Many commenters were pleased with many aspects of the new policy.
Several commenters noted that the policy was ``clearly the product of a
careful and deliberative effort to involve tribes' input and integrate
their concerns.'' Several commenters noted that the Native American
Policy Team that worked for 2\1/2\ years on this policy was formed at
the earliest stages of policy consideration and consisted of tribal
members and Service employees who worked very closely together on all
aspects of the policy. One specific commenter stated that tribes and
ANCs ``applaud[ed] FWS for its extensive efforts working with
representatives from tribes across the country to put together this new
policy.''
Tribes and ANCs commented that FWS's recognition of the importance
of sharing the traditional knowledge, experience, and perspectives of
Native Americans will ultimately lead to better management of shared
fish, wildlife, and cultural resources. Tribes and ANCs supported the
Service's recognition of the need for flexibility to allow for regional
diversity. Tribes stated that they appreciate that the Service did not
group them together with other stakeholders, but instead treats them as
sovereign governments. Tribes appreciate that the Service took tribal
comments from a pre-public comment period and incorporated them into
the published draft. Several commenters commended the Service for
incorporating the table of responsibilities, which describes specific
responsibilities for Service employees.
Commenters support the promotion of cultural competency awareness
within the Service. Likewise, they support that the draft policy makes
a clear and honest reference to Service limitations with respect to
protecting sensitive tribal information from public release (e.g., via
Freedom of Information Act (FOIA) requests).
ANCs stated that they support and appreciate the Service's
inclusion and acknowledgement of ANCs as significant stakeholders that
require policies guiding and encouraging the Service's interaction with
them.
The following categorizes comments by policy section, followed by
comments on the content of the three
[[Page 4640]]
exhibits, and finally those comments received specific to Alaska.
General Comments
1. As a ``consultation policy'' this has shortcomings. Response:
This is not a ``consultation policy.'' Consultation is a part of this
policy, which covers more than consultation.
2. The draft policy repeatedly uses multiple qualifiers in the text
such as, ``to the extent practicable,'' ``not inconsistent with
essential Service functions,'' ``as necessary or appropriate,'' and
``as resources and priorities allow.'' The repeated use of these
qualifiers appears to vest discretion in the individual Service
official or staffer as to whether or not, at any given point,
consultation will occur. Response: This is not meant to undermine the
Service's responsibility to consult with tribes and ANCs. The Service
understands the importance of and our responsibility for working with
tribes. However, we cannot promise more than we can deliver. The
Service must act within the authorities Congress has given us, and we
can only perform as much work as the resources supplied by Congress
will allow.
Section 1. Introduction
1. Some commenters objected to the qualifier that this policy
applies to those whose official duties may affect tribal interests, and
not to all employees. Response: While most employees have
responsibilities that may affect tribes, some employees may have
completely unrelated jobs, such as employee payroll or janitorial
services for Service properties. Even so, the Service will try to
deliver some degree of tribal training to all employees through regular
internal Service training. The Service will ensure that all employees
will be aware of their responsibilities under this policy.
2. The Service should show how tribal input was considered and
incorporated into final decisions. Response: Implementation will
include Regional teams that are better able to communicate with the
tribes in their area. There is no one-size-fits-all for all Service
programs. Many times, tribes are present throughout the process and
will have ongoing dialogue concerning how their comments have been
included in decisionmaking.
Section 2. Sovereignty and Government-to-Government Relations
1. This section of the policy should be first. In the existing 1994
policy, sovereignty is the very first principle. In this revised draft,
it is relegated to subheading 5. The placement of this guiding
principle diminishes what was once highlighted. Response: We have moved
this section up from section 5 to section 2 and have moved what were
preceding sections into exhibits.
2. The policy needs to make clear that the Service cannot make
decisions or take actions that impact or diminish treaty-reserved
rights of tribes and incorporate the principles that serve as the
foundation for Secretary's Order 3206. Response: In section 3, the
policy states that communication with tribes will begin early in the
planning process. We will continue to develop relationships and
communicate with tribes at the appropriate levels.
3. The Service should implement a consensus-based process with the
tribes to identify treaty and trust obligations and to develop programs
and actions to meet those obligations. Response: The Service looks for
opportunities to consult and collaborate with tribes as is stated
throughout the policy. We understand that the tribal consultation
process goes beyond the requirements of public involvement. We discuss
this in section 4.
4. The policy should support development and implementation of
agreements with tribes or regional tribal groups to reflect needs
tailored to capabilities. Response: The Service will form Regional
tribal-Service implementation teams to collaboratively address issues
that arise on a more local level.
5. We received several comments relating to the fact that some
Indian tribes have delegated a portion of their authority to inter-
tribal agencies. Commenters stated that the Service should acknowledge
that delegation and, if allowed by that delegation, provide those
agencies with relevant technical and policy-related information. They
also stated that the Service should develop cooperative relationships
with those agencies to carry out the programmatic goals of the Service
and to better serve Indian tribes. Other commenters raised concerns
that the Service should be aware that each tribe in an inter-tribal
agency may not have delegated full authority on an issue. Another
commenter explained that tribal consortia provide a powerful
opportunity for the Service to ``get the word out'' to affected tribes.
Response: Tribes have delegated varying ranges of authority to inter-
tribal organizations acting for them. The policy cannot address each
specific delegation, and so we address this issue in section 2 as
follows: ``We will consult with inter-tribal organizations to the
degree that tribes have authorized such an organization to consult on
the tribe's behalf.'' During implementation, we plan to reach out to
these groups and the tribes whom they represent when forming regional
implementation teams. The Service will continue to engage consortia to
contact tribes, get the word out, and become involved in other
programs.
6. Several commenters asked that we revise language to limit this
section to where there are ``federally recognized tribal rights.''
Response: We have not adopted this comment. The Service exercises due
care where our actions affect the exercise of tribal rights.
Section 3. Communications and Relationships
1. Substitute ``strive to the greatest extent possible to
incorporate'' instead of ``consider'' traditional knowledge. Response:
The language in the policy clearly states that the Service will
``consider'' traditional knowledge, which means that we will take it
seriously and truly consider the traditional knowledge shared.
2. Several commenters raised concern that tribal members may not be
free to share information on specific cultural locations, practices, or
actions that could be useful to the Service, and asked the Service to
accommodate that privacy. Response: We understand there may be
limitations on tribal members' abilities to share information with us.
They may not be able to share any information, or they may be able to
share information only if we keep that information confidential. The
Service respects that tribes, ANCs, or tribal members may not be able
to share information that could be disclosed to the public if required
by FOIA. As the policy states, we will work collaboratively to protect
confidential information and protect disclosure when possible. If the
Service relies on any such information as a basis for agency action to
protect resources, however, that information will become an agency
record subject to FOIA and must be released unless it falls under an
exemption. This potential disclosure must be balanced with the fact
that if we are unaware of this information, we cannot use it as a basis
to protect those cultural resources or practices.
3. One commenter shared that certain tribes require consultation to
occur on those tribes' reservations, and that the Service should state
that they will consult with each tribe according to those requirements.
In addition, many tribes require a two-tiered process where technical
staff discuss management issues and elevate policy discussions to
formal government-to-government consultation when
[[Page 4641]]
necessary. Response: The Service understands that each tribe may have
its own requirements and standards for interacting with Federal
agencies at both the government-to-government level and on technical
issues. In developing relationships with tribes in their areas, Service
employees will better understand and appropriately meet with tribal
governments. The table of responsibilities in Exhibit 2 anticipates
coordination at all levels.
4. One commenter stated that to ensure that the Service is engaging
with ANCs and tribes in a meaningful way that fulfills its consultation
obligations, we should establish firm guidelines for what actions the
agency will take when preparing for a consultation, including
information on how much notice we must give tribes and ANCs before a
consultation occurs, what information is provided to these groups in
advance of consultation, and how the Service will incorporate comments
gathered at consultations into the official record and decisionmaking
process. Response: While this policy discusses a wide range of
consultation and engagement possibilities, how to carry out proper
consultation is beyond its scope. The ``how to'' is covered in the U.S.
Fish and Wildlife Service Tribal Consultation Handbook and will be a
topic of ongoing training.
5. If the Service is to request full cooperation and assistance
regarding shared information, the final draft must include strong
language to protect tribal information, Traditional Ecological
Knowledge (TEK), site-specific information, and any information deemed
sensitive by the tribes, as being totally protected and not subject to
FOIA requests. Response: The Service will coordinate with tribes
individually on this issue. We strive to balance our responsibility to
the American public to release all information on which we base our
decisions with respect for tribal concerns about keeping information
confidential. While we will work with tribes to help protect sensitive
cultural information, as a Federal agency, the Service is subject to
the FOIA and has no discretion to protect from disclosure tribal
information that does not qualify under any of FOIA's statutory
exemptions.
6. We received many comments voicing concerns about treaty rights.
One commenter believed that the language in the policy gives excessive
discretion to Service staff to limit the exercise of treaty rights.
Response: Throughout the policy, we recognize tribal treaty rights.
Where treaty rights exist, employees do not have the discretion to
allow or disallow their exercise. Where there are disagreements as to
interpretation of how far those treaty rights reach, the Service will
communicate with the affected tribe or tribes, but we must continue to
carry out our activities as required by law.
7. Other commenters, while recognizing that not all tribes have
treaty rights, were concerned that the policy does not specifically
support the rights of tribal members to use fish and wildlife resources
on Service lands. Response: There are numerous statements about
recognition of tribal treaty rights in the policy. Where treaty rights
exist that extend to Service lands, such as fishing rights, those are
recognized in the policy.
Section 4. Resource Management
1. The Service should assist and facilitate tribal participation in
co-management venues where there are areas of jurisdictional overlap
amongst multiple government interests. Response: Where the Service is
involved in resource management, we will engage all of the governmental
parties involved. There are areas where the Service might not have such
authority, particularly where States manage wildlife, so we may not
have resources involved in such a jurisdiction.
2. Several commenters asked us to add language stating that tribes
are the primary natural resource managers on Indian lands, and that
tribes are co-managers for shared resources off-reservation for treaty-
reserved resources. Response: The first part of this statement goes
beyond the scope of this policy. The second part of this statement is
too broad a concept and does not apply in all situations, so we did not
include it as part of the policy.
3. Several commenters stated that the 1994 policy had stronger
language in certain areas, in particular about our participation in
fulfilling the Federal Government's and the Department of the
Interior's trust responsibilities to assist Native Americans in
protecting, conserving, and using tribal reserved, treaty-guaranteed,
or statutorily identified trust assets. Response: We revised the
language of the first and fifth paragraphs in section 1 to address
these concerns.
4. Several commenters discussed reserved rights on non-reservation
lands. Some stated that the policy should reflect that various Indian
tribes enjoy reserved rights on non-reservation lands, which allows
those tribes to harvest natural resources pursuant to tribal law. One
stated that the draft policy should reflect the obligation that the
Service has, when considering actions affecting those lands and their
natural resources, to meaningfully involve affected Indian tribes and
their delegated inter-tribal agencies, where applicable. Other
commenters asked for language clarifying that tribal members who are
exercising tribal reserved rights have access to Service-managed or
controlled lands for fishing and harvesting resources pursuant to
tribal law or a memorandum of agreement between the tribe and Service.
Response: Section 2 states that we will exercise due care where our
actions affect the exercise of tribal rights. We work on a government-
to-government basis to address issues concerning management of tribal
trust resources and Indian tribal treaty and other rights. In addition,
where a tribe has developed an agreement with the Service, the tribe
can carry out these activities in accordance with the agreement. Not
all Service lands are open to all such uses.
5. One commenter stated that the policy needs to include stronger
language regarding the use of tribal partners in assuming direct
management over Service lands near reservations or where they have a
significant interest on the landscape. Response: Congress has not given
us the authority to give tribes management authority over Service
lands. Management of Service lands is an inherently Federal function.
6. Several commenters voiced concern that tribes should not bear a
disproportionate burden for the conservation of species, and to
consider whether conservation measures on non-tribal lands and
regulating non-Indian activities can achieve those goals. In addition,
they stated that the policy needs to reinforce the principle message of
Secretary's Order 3206 and clearly place the burden of proof on the
Service to demonstrate a designation of critical habitat is required
within a reservation. Response: The Service acts as required by the
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et
seq.), and Secretary's Order 3206. We added language from our ESA
section 4(b)(2) policy to this policy as follows: ``We will always
consider exclusions of tribal lands under section 4(b)(2) of the ESA
before finalizing a designation of critical habitat. We will also give
great weight to tribal concerns in analyzing the benefits of
exclusion.''
7. One commenter requested a stronger statement in the policy
requiring that system directors, managers, and staff accommodate
requests by tribes to access system lands in a manner consistent with
other members of the public or State governments. For example, if a
particular refuge permits State big game hunts, then tribes should be
able to
[[Page 4642]]
access those same lands for hunting purposes. Response: This is too
broad of a request to address in the policy. In short, not all tribes
have treaty-reserved hunting and gathering rights. In certain
geographic areas, tribes retain those treaty rights, but the rights
might not extend to carrying out those activities on a refuge. We will
work with tribes in the geographic area where hunting is authorized on
a refuge.
8. One commenter was concerned that the administration of various
wildlife laws cuts against the tribes, like the administration of
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES) for furbearing mammals, where the Service requires a
tribe to meet an unrealistic standard before it can continue its
traditional practices of making cultural use of harvested animals. The
resource management section needs to make it clear to Service employees
that it expects its employees to treat tribes with respect and equity
when they are making decisions about gathering of subsistence foods and
natural resources. Response: The policy stresses respect and
coordination with tribes. Issues surrounding native rights to hunt and
gather on non-Indian lands vary. These issues will be addressed in
training. In addition, we will have an Alaska policy to address
subsistence issues in Alaska.
9. We received comments stating that while the policy talks about
management and conservation of resources, it does not clearly reflect
tribal ``use'' of resources. Response: We had addressed this in many
places in the draft policy, including in the opening paragraph, in
statements about Alaska subsistence uses, in the section on using
cultural resources, and in the definition of ``Fish and wildlife and
cultural resource management.'' To address this comment, we have added
``use'' of resources in two additional places--in the definitions of
co-management and collaborative management.
10. Several commenters stated that the policy must consider other
governmental jurisdiction and interests, especially where litigation or
laws recognize States as the primary managers of the resources,
especially on ceded territories. Response: With respect to developing
agreements to manage and conserve resources, we added a reference to
``States and other co-managers.'' The policy also recognizes State
jurisdiction under both the Indian lands and non-Indian lands
subsections of section 4.
11. Some commenters believed that the Service's role in managing
non-Indian lands is limited to federally owned lands, and then only
where such uses have been established by Federal law or adjudication.
Response: The Service's jurisdiction goes beyond federally owned non-
Indian lands, particularly when the Service manages ESA-listed species,
eagles, and other migratory birds. Further, tribal rights need not have
been formally adjudicated to be valid; therefore, we have not altered
this language in the policy.
12. Several commenters asked that we clarify ``where there is a
legal basis for such use'' when talking about tribal members using fish
and wildlife resources on non-Indian lands. Response: Clarifying this
term would require a very lengthy section that would, at a minimum,
include reviewing treaties, statutes, and case law from around the
country, which goes beyond the scope of this policy.
13. Commenters noted that the language in the Non-Indian Lands
section might allow Service employees to participate in matters that
are strictly between States and tribes. Response: We have added the
phrase, ``and where Service jurisdiction is involved'' to this
paragraph. In addition, the definition of fish and wildlife resources
encompasses only those that the Service is responsible for managing and
conserving.
14. Commenters asked that we clarify the role the Service would
play if there are disagreements between tribal governments and State or
local resource management agencies. Response: Section 4 states,
``certain tribal governments and State governments may have shared
responsibilities to co-manage fish and wildlife resources. In such
cases, we will consult and collaborate with tribal governments and
affected State or local resource management agencies to help meet the
objectives of all parties while honoring the Federal trust
responsibility.''
Section 5. Culture/Religion
1. Some commenters found it offensive that the Service would
prioritize scientific investigation over a tribe's religious,
ceremonial, or cultural needs. Response: In 1975, Interior Secretary
Morton recognized Indians' ``legitimate interest in expressing their
cultural and religious way of life, and at the same time, share the
responsibility to conserve wildlife resources including federally
protected birds.'' The Attorney General's 2012 policy tiers from the
Morton policy and recognizes that the tribes and the United States
share an interest in and responsibility for protecting wildlife
resources: ``It is a federal priority to prosecute those who violate
federal laws by engaging in commercial activities involving federally
protected birds, bird feathers, and remains. . . . The Department of
Justice is committed to robust enforcement of federal laws protecting
birds while respecting tribal interests in the use of eagle feathers
and other federally protected birds, bird feathers, and other bird
parts for cultural and religious purposes'' (Attorney General Holder
policy, October 12, 2012).
2. Several commenters asked that the policy include use of natural
resources within the section on cultural resources. Response: While
tribal members may not distinguish between natural and cultural
resources, the Service follows a separate set of laws in each area. We
address use of natural resources in section 4.
3. One commenter stated that tribes need to be provided timely
notification when any actions are proposed on their ancestral
homelands, so that they can make early, informed decisions on when and
how to become involved. Response: The policy states, ``The Service will
meaningfully involve tribal governments in our actions when we or the
tribal government determine the actions may affect their cultural or
religious interest . . .''
4. Several commenters pointed out that while many instances of the
words ``may'' and ``should'' were strengthened from an earlier draft of
the policy, a few remaining ``shoulds'' could still be strengthened to
make them absolute requirements. Response: Where the Service is able to
state that it will act, it so stated. We do not, however, want to make
representations that we are unable to perform.
5. One commenter asked that we delete ``expression'' and replace it
with ``practices'' when talking about religion. Response: Based on
respectful discussion within the tribal-Service policy team, we have
kept the term ``expression.''
Section 6. Law Enforcement
1. Several commenters wrote asking for support for formal
agreements, such as cross-deputation. Response: We have explained that
the Service will work with tribes to the limits of the law. At this
time, however, Federal law does not allow the Service to cross-deputize
tribal officers.
2. Some commenters stated that they were concerned that Service
officers should not assume that State or Federal law applies to Indian
tribal members without first consulting the Indian tribes that may have
jurisdiction in a particular area. In cases where Service
[[Page 4643]]
officers determine that there have been possible violations committed
by Indian tribal members, those officers should immediately contact
tribal law enforcement to determine whether the members' tribe has
jurisdiction. Response: In cases where Service officers determine that
there have been possible violations of Federal law committed by tribal
members, officers have a responsibility to investigate such violations.
Service law enforcement officers are trained on the topics of Federal,
State, and tribal jurisdictions. In situations where a question of
tribal rights arises in the course of an investigation, the Service has
a review process in place to determine whether or not to pursue a case.
Service law enforcement officers are committed to working cooperatively
with tribal game-enforcement authorities whenever they can in pursuing
specific investigations. We also have added language in section 6 that
the Service will provide its law enforcement staff additional cross-
cultural training.
Section 7. Tribal Capacity Building, Assistance, and Funding
1. Several commenters asked that the Service commit to helping
tribes receive a consistent level of funding to sustain ongoing tribal
wildlife management projects. Several also asked that we make educating
tribal staff an affirmative priority. Response: The Service funds
tribal wildlife projects through several funding mechanisms. We do not,
however, have the resources to commit to set levels of funding. The
Service is able to act only within the constraints of its available
resources.
2. Several commenters focused on training for tribal members by
asking the Service to facilitate training opportunities, promote its
training facilities (e.g., at the National Conservation Training Center
(NCTC)), and provide scholarships and funding to assist in the
development of staff in areas of need. In addition, several commenters
were concerned with language that stated that the Service would carry
out certain functions, such as providing technical assistance, ``as
resources and priorities allow.'' These commenters believe that these
activities are a priority and were concerned that they not be left to
the discretion of individual offices. Response: The Service offers many
kinds of training in many locations. We include tribal members in many
of our training courses, including those at NCTC. We cannot make
representations that we can fund all desired activities that we may not
have the resources to support.
3. Commenters encouraged the Service to provide joint training to
increase awareness and understanding for implementation of the policy
for tribal and Service staff to ensure they both receive consistent
information and to foster collaborative learning and strong working
relationships. Response: We agree. We have added language to section 8
that we will form both national and Regional tribal-Service teams to
assess the priorities for training and other priorities in each area.
Also, we have added language to section 8 as follows: ``The Service
will encourage and support joint training with tribes to promote common
understanding about implementing the policy within the context of
Region-specific circumstances.'' Section 7 states: ``The Service will
provide tribal governments and their staff access to our fish and
wildlife resource training programs in the same manner that we provide
access to other government agencies. In addition, we plan to work with
tribes to develop, conduct, and attend joint training programs to
increase awareness and sensitivity and to cross-train our employees and
tribal staff on each other's responsibilities for resource
stewardship.''
4. One commenter asked that the Service re-evaluate the Tribal
Wildlife Grant (TWG) funding program and explore other options for
providing stable, long-term funding to tribes like the Service
currently provides to States. Response: Re-evaluating such programs
goes beyond the scope of this policy.
5. Several commenters asked for stronger language regarding
recruitment of Native Americans. Response: Both sections 6 and 7
address this issue. The policy encourages qualified Native Americans to
apply for Service jobs. It additionally states that, ``[w]e will
collaborate with tribal governments to recruit Native Americans for
Service law enforcement positions . . .''
6. We received many comments about the Indian Self-Determination
and Education Assistance Act (ISDEAA; 25 U.S.C. 450 et seq.) and how it
applies to the Service.
One commenter stated that the Service should first come out with a
national policy regarding annual funding agreements (AFA) at national
wildlife refuges before entering into any ISDEAA contracts at refuges.
Response: That is beyond the scope of this policy.
Other commenters stated that multi-year funding agreements for
refuge management are not statutorily authorized, and that 15 U.S.C.
458cc does not authorize multi-year funding agreements. Response: The
Service will consider the full range of contracts and grants that are
available to tribes within applicable law. Multi-year agreements do not
authorize multi-year funding. Funding is allocated through AFAs. Title
25 of the Code of Federal Regulations (CFR) at Sec. 100.146 allows an
agency to negotiate a self-governance funding agreement with a
performance period that exceeds 1 year.
Another commenter stated that they believed that all information
about AFAs should be made available under FOIA requests. Should there
be an AFA, the Service must maintain records that it will be able to
produce upon public request. Response: All documents in the Service's
custody and control are subject to FOIA. Tribes are not subject to
FOIA.
One commenter stated that refuge management should not be available
to tribes under an AFA where the Service has not finalized a
Comprehensive Conservation Plan (CCP), and that the Service cannot
contract inherently Federal functions. Response: Refuge management has
been identified as an inherently Federal function and is not available
to tribes under an AFA.
7. Under the subsection on Professional Development, include a
commitment to implement and expand tribal internship opportunities and
programs for Native American students at colleges, universities, tribal
colleges, and other institutions to provide expanded opportunities for
Native American students to gain experience in wildlife resource
management. Response: At this time, making this additional commitment
in response to this request goes beyond the scope of the Service's
resources.
8. Add language committing the Service to strategize with tribes
about possible funding opportunities that would be available through
statutory amendments to existing programs. Response: The Service in not
authorized to pursue statutory amendments on behalf of tribes.
9. Several commenters asked that the policy clarify that when
offering assistance to tribes, the Service should limit its offer of
expertise to the fish and wildlife resources defined by the policy.
These commenters stated that the Service may not be qualified to review
and assess tribal conservation measures for species under State
jurisdiction without State involvement. Also, where there are instances
of court-established processes for developing species management plans,
Service involvement might be inappropriate. Response: We added the
following language: ``Service involvement may be limited where
litigation or other court actions have established a specific process
for the
[[Page 4644]]
development of species management plans and tribal codes.''
Section 8. Implementation and Monitoring
1. Several commenters hoped to see operational plans within the
policy. They stated that the policy should contain more detail and
directly address how it will be implemented. They stated that the
policy seems to be a framework that needs to be transformed into
operational plans for local level implementation. Response: The policy
becomes operational through the table of employee responsibilities. In
addition, the Service has a tribal consultation handbook that we will
be updating. We added additional language to section 8 calling for
national and Regional teams comprised of both Service and tribal
representatives to implement the policy in a way that is meaningful at
a more localized level. The policy also calls for training at all
levels of the Service.
2. Commenters recommended that the Service establish a tribal
committee that would monitor and evaluate the effectiveness of the
policy and make recommendations to improve its implementation.
Commenters asked that we require Regional and field offices to carry
out training for staff and leadership on the culture and legal rights
of Indian tribes in their areas, with invitations extended to those
Indian tribes and tribal agencies to assist in the planning and
execution of those trainings. Response: We have added language to
section 8 that describes how we will form both national and Regional
tribal-Service teams to assess the priorities for training and other
priorities in each area. We have also added the following language to
section 8: ``The Service will encourage and support joint training with
tribes to promote common understanding about implementing the policy
within the context of Region-specific circumstances.'' Implementation
will continue through tribal-Service teams that will address training
and other needs in each area. These teams will nurture strong
collaborative working relationships that will address communication,
training, implementation, and monitoring.
3. One commenter stated that there should be a clear process for
recourse if tribal consultation is denied or mishandled by Service
officials and staff. Response: Section 8 addresses the manner by which
the Service will address disagreements regarding the implementation of
this policy.
Section 9. Scope and Limitations
Several commenters were concerned that some of the language from
the 1994 policy that clarified State wildlife agencies' roles and
authorities was missing from the draft. Response: We have recognized
State authority throughout the policy and have added the following,
``Nothing in this policy may be construed as affecting the authority,
jurisdiction, or responsibility of States to manage, control, or
regulate fish and resident wildlife under State law or regulations.''
Exhibit 1. Definitions
1. Several commenters stated that the definition for ``Indian
lands'' should include land held in fee by an Indian or a tribe, or
land owned by an ANC. Response: The tribal-U.S. relationship is a
political one. We cannot extend the legal protections of trust land to
non-trust land through this policy. For ANCs, we plan to develop an
Alaska regional policy that addresses the issue further.
2. Several commenters asked that we include a definition of ``trust
responsibility.'' Response: We have taken language describing the
contours of the trust responsibility from Secretary's Order 3335 and
inserted it into the first section of the policy.
3. Several commenters pointed out that in Alaska, co-management can
take place between the Service and non-governmental entities, and that
our proposed co-management definition did not include these situations.
Other commenters asked that we make the definition more restrictive by
including entities that have authority ``legally established by federal
law or adjudication.'' Response: We have changed the definition of
``co-management'' as follows: ``two or more entities, each having
legally established management responsibilities, working
collaboratively to achieve mutually agreed upon, compatible objectives
to protect, conserve, use, enhance, or restore natural and cultural
resources.'' We have also added a definition for ``collaborative
management'' as follows: ``two or more entities working together to
actively protect, conserve, use, enhance, or restore natural and
cultural resources.'' We believe these clarifications will cover
management scenarios both in Alaska and throughout the country.
4. Several commenters asked for clarity in the definition of fish
and wildlife resources, stating that many fish and wildlife species
found on refuges are managed under State rather than Federal authority.
These commenters recommended that we state that the Service's
responsibility is limited to the purpose for which the refuge was
designated and to federally managed species. Response: The Service has
responsibility for all resources within refuge boundaries. We enter
into agreements with States and other entities for co-management and
cooperative management, where appropriate.
5. Many commenters objected to the definition of ``sacred site''
and offered alternative definitions. One commenter asked that we use
the term ``sacred place'' and offered a definition. Another commenter
stated that it would be more appropriate to use a definition they
offered for ``cultural landscapes,'' which the National Park Service
had used. Response: We understand that this definition may not fit
tribal concepts of sacred sites. We will address these concerns during
training. We continue to use this definition, which we took directly
from Executive Order 13007 and the Departmental Manual at 512 DM 3.
Concern about accessing cultural sites is further discussed in section
8 under the Access for Cultural, Archeological, and Historic Resources,
and Indian Sacred Sites subsection.
6. One commenter stated that it was unclear whether the ``sacred
site'' definition would require a prior identification of sacred sites.
Response: We have clarified the language, changing the tense to clarify
that that a tribe does not need to identify a sacred site prior to the
inception of the project under discussion. The tribe does need to
identify the site to us in order for us to consider its sensitivity in
our planning or review of the project. While a sacred site may exist to
a tribe, we cannot consider a sacred site that we do not know about. In
addition to the definition, the subsection on access addresses the need
to avoid adversely affecting the physical integrity of sacred sites and
to accommodate Indians' access to and use of sacred sites.
Exhibit 2. Responsibilities
1. Some commenters recommended moving this section farther back in
the document, perhaps including it as an appendix to highlight the
importance of the policy rather than the roles of various Federal
positions. Response: We agree and have moved the table into an exhibit.
The use of exhibits is consistent with other Service Manual policies.
2. Several commenters asked that the policy identify the Service
officials who have responsibility to liaison with non-tribal
governments, agencies, or other entities. Response: This policy is
focused on working with Native
[[Page 4645]]
Americans, so this request is beyond its scope.
Exhibit 3. Authorities
1. Many commenters asked that we list each treaty in which the
United States and tribes have recognized reserved rights to natural
resources. Some commenters noted that we mention treaties quite a bit,
without recognizing that many tribes do not have treaties. Some
commenters asked that we include particular statutes through which
Congress has stated the United States' legal relationship with tribes.
Response: We are unable to add references to all the treaties and
statutes that refer to individual tribes. They are too numerous to list
in this document. Many tribes have several treaties or statutes, or
both, with some overturning or modifying earlier citations. Individual
treaties and statutes are more appropriately addressed through training
at the local level.
2. Several commenters recommended we include the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.) to the authorities section.
Response: We have added the Fish and Wildlife Coordination Act.
3. The authorities section should include the Memorandum of
Understanding (MOU) among the U.S. Department of Defense, U.S.
Department of the Interior, U.S. Department of Agriculture, U.S.
Department of Energy, and the Advisory Council on Historic Preservation
Regarding Interagency Coordination and Collaboration for the Protection
of Indian Sacred Sites, December 6, 2012. Response: We have added this
MOU to the exhibit.
Alaska-Specific Concerns
1. We received several comments that focused on concerns specific
to Alaska. Many commenters stated that while ANCs are not tribal
governments and are not treated as sovereigns, the United States has a
responsibility to consult with ANCs on the same basis as Indian tribes
under Executive Order 13175. They recommended that we include the
Consolidated Appropriations Act of 2004 (Pub. L. 108-199) in the
authorities section. In addition, several commenters noted that, while
the Service has stated that it will adopt an Alaska regional policy,
the national policy must also address the Service's relationship with
ANCs. Commenters pointed out that many national level proposals and
plans have a substantial and direct impact on ANCs and other Alaska
Native entities, so ANCs should be considered on the national level.
Response: We have adopted these comments. We have added authorities
about consultation with ANCs to the authorities exhibit. We have
included the requirement to consult with ANCs in sections 1 and 3 of
the policy. In addition, the Alaska Region (Region 7) is in the process
of drafting an Alaska-specific policy. Also in response to these
comments, we have added a definition of Alaska Native Corporation to
the definitions exhibit.
2. Commenters from Alaska voiced concern that because the term
``inter-tribal organization'' is undefined, this provision might be
interpreted as a limit on the agency's ability to consult with any
group that is not a tribe or authorized by a tribe to consult on its
behalf. Response: We have broadened the scope of ``Alaska Native
Organization (ANO)'' to include a broad array of organizations that
represent Alaska Natives, including, but not limited to, ANOs under the
Marine Mammal Protection Act.
3. Commenters asked that the training and professional development
opportunities anticipated by the Service for tribal governments should
be extended to ANCs. Some stated that ANCs are valuable sources of
traditional knowledge, have significant interests in receiving
technical information, and asked that these policy provisions be
expanded to include them. Response: We will consult with ANCs on the
same basis as we consult with tribes, and we will also work with ANCs
in all areas permissible by law.
4. Some commenters believe that under ISDEAA, ANCs have the same
status as tribes for the provision of many contract services. Response:
ANCs are entitled to contract under title I of the ISDEAA. With respect
to title IV self-governance funding agreements, 25 U.S.C. 458bb
establishes that tribes are eligible to participate in the Department's
Tribal Self-Governance Program. The regulations for the Program also
allow consortia, defined as ``an organization of Indian tribes that is
authorized by those tribes to participate in self-governance.''
Dated: January 20, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-01615 Filed 1-26-16; 8:45 am]
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