On October 21, 2016, Department of the Interior Secretary Jewell issued Secretarial Order No. 3342: Identifying Opportunities for Cooperative and Collaborative Partnerships with Federally Recognized Indian Tribes in the Management of Federal Lands and Resources. The Order is effective immediately and applies to the: Bureau of Land Management (BLM); National Park Service (NPS); U.S. Fish and Wildlife Service (USFWS); Bureau of Ocean Energy Management (BOEM); the Bureau of Reclamation (BOR); and “potentially other bureaus and offices.” The press release is attached. The Order itself is available here: https://www.doi.gov/sites/doi.gov/files/uploads/so3342_partnerships.pdf
Purpose. The Order has two purposes. One is to: “encourage cooperative management agreements and other collaborative partnerships between [DOI] resource managers and tribes that will further shared interests in the management of Federal lands and resources.” The other is to “establish a process and provide institutional support to ensure that land and resource managers evaluate and develop opportunities to further establish partnerships that benefit tribes and Federal agencies.” The Department “recognizes that tribes have special geographical, historical and cultural connections to Federal lands and waters, and that tribes have traditional ecological knowledge and practices regarding resources management that have been handed down through generations.” The Department acknowledges that a range of federal-tribal partnerships already exist and believes that they are a benefit to tribes, the federal government, and the general public at large.
Process. The named bureaus are directed to immediately begin identifying opportunities for federal-tribal partnerships. Bureau efforts shall include, but are not limited to:
• Identification of key personnel to explore such opportunities;
• Development of bureau-specific guidance for such partnerships; and
• Consultation at both the regional and unit-specific levels (at the request of tribes).
The Office of the Solicitor is directed to develop a working group to advise the bureaus on legal issues associated with exploring opportunities and entering into partnerships with tribes.
Scope. The scope of activities subject to this Order include, but are not limited to:
• Delivery of specific programs and services;
• Management of fish and wildlife resources;
• Identification, protection, preservation, and management of culturally significant sites, landscapes, and resources;
• Management of plant resources, including collection of plant material;
• Management and implementation of maintenance activities; and
• Management of information related to tribal, cultural, and/or educational materials.
Reporting Requirements. Within 75 days of the effective date of the Order, each bureau is required to provide the Deputy Secretary with a report summarizing their strategy for complying with the Order and their efforts to identify new opportunities for federal-tribal partnerships. Annually thereafter, each bureau is required to report to the Deputy Secretary on: completed arrangements between that bureau and tribes; arrangements still under consideration; arrangements which were declined (and the reason for the declination); and a summary of benefits that the public receives from the completed arrangements, including use of traditional ecological knowledge and tribal resources.
Legal Authority. The Order cites statutory authority specific to each of the named bureaus as support for agreements and partnerships. More generally, the Order is grounded on the government-to-government relationship with, and the federal trust responsibility to, the tribes.
Limitations and Effect of the Order. The Order makes clear that these federal-tribal partnerships must take place “within the framework of the Department’s legal responsibilities and authorities” and that “bureaus should consult with the Office of the Solicitor for further guidance on the question of whether a particular program, service, function or activity [PSFA] is inherently Federal” and thus not eligible for inclusion in a partnership agreement. Implementation must occur “within the financial resources available to bureaus” and that “bureaus should have candid discussions with tribes regarding the need and availability of financial resources associated with any proposal.” The Order “is intended to improve the internal management of the Department.” In the event of “any inconsistency between the provisions of this Order and any Federal laws and regulations, the law and regulations will control.” Finally, the Order does not address co-management, which the Department defines as “a situation where there is a specific legal basis that requires the delegation of some aspect of Federal decisionmaking or that makes co-management otherwise legally necessary.”
Impact on and Interaction with Self-Governance. As described in the Order, different types of federal-tribal resource management partnerships already exist. Some of these are self-governance agreements pursuant to Title IV of the Indian Self-Determination and Education Assistance Act (ISDEAA). Under Title IV’s self-governance program, tribes can propose to enter into agreements with any non-BIA agency within DOI to carry out PSFAs or portions thereof, provided that the tribe can identify a special geographic, historical or cultural significance to the PSFA. Each year, the Department publishes a notice in the FEDERAL REGISTER describing the opportunities for tribes to enter into compacts with these bureaus and providing a list of the current agreements. Title IV makes entering into these agreements discretionary by the Secretary and very few agreements covering these programs exist. For example, this year’s notice reports 10 Title IV agreements between tribes and non-BIA bureaus. (See our General Memorandum 16-031 of May 2, 2016).
Please let us know if we may provide additional information or assistance regarding Secretarial Order 3342.