Federal Trust Resposibilty and Indian Forest Mangement Editor’s note: George Smith is President, Pacific Management Associates, a natural resources consulting business in North Bend, Oregon. He is a Society of American Foresters Certified Forester with more
its trust obligations and carrying out forest management activities in the best interest of the Tribes (beneficiaries of the trust). Key issues were the lack of funding to fully implement forest practices and achieve management goals agreed to by the Secretary and Tribes in approved FMPs and a misalignment concerning the BIA’s strong focus on timber production rather than a broader forest stewardship approach in managing Indian forests. 2 While expressing increasing interest and concerns relating to management of their forests, Tribes were also building internal capacity to manage their forest lands under Tribal control and adminis- tration. This was in response to growing desire of Tribal leadership to end federal domination and paternalism in carrying out federal programs for delivery of ser- vices and allow the Tribes themselves to design and directly administer programs in manner which best serve the needs of their Tribal members. The authority for Tribes to transition from BIA control and administration to di- rect Tribal operations in management of trust forest lands is provided in the 1975 Indian Self-Determination and Education Assistance Act and its amendments, 3 and more recently in the 2016 Indian Trust Asset Reform Act. 4 In the 2023 IFMAT IV review, forestry program in- formation was collected from 41 Tribes nationwide including Alaska. In exam- ining Tribal governance structure, it was found that 77% of the forestry programs were being performed directly by Tribes under P.L. 93-638 program contracts or compacts. In addition, two Tribes carry out forest management activities under Tribal law and regulations as provided for in Indian Trust Asset Management Plans (ITAMPs) authorized by ITARA. 5 This increasing trend of a reduc- tion in BIA control and administration of reservation forestry programs to direct management by Tribes under the Indian Self-determination Act and ITARA authorities changes the long-standing, conventional process of carrying out the federal trust responsibility. Numerous functions performed in the management of Indian forest lands have historically been identified as residual, non-contrac- table activities to be performed by a BIA designated official. Commonly referred to as the inherent federal function. The BIA uses compliance with federal forestry regulations interpreted and im- plemented through manuals and hand-
than 55 years of Native American forestry experience. He held several high-ranking positions in the Bureau of Indian Affairs before retiring. After retiring, he served 10 years as Executive Director of the Coquille Indian Tribe. Smith worked with IFMAT IV co-chair, John Sessions, on a cross-refer- enced summary of findings from all four IFMAT reports. By George Smith
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wo important concepts guided the Nation’s early Indian policy. The first
was the use of the treaty, which demon- strated that Western nations viewed Tribes as distinct, separate, but not always equal, entities. When an Indian Tribe entered into a treaty with the United States, a trust rela- tion was created. The Tribe ceded land to the Federal Government and, in return, the United States made promises to protect Tribal lands from non-Indian encroach- ment and to provide services to Tribes. Supreme Court Chief Justice John Marshall confirmed the legal rights of In- dians to their land in his ruling in the case of Cherokee Nation v. Georgia in 1831, when he described the status of Indian Tribes as “domestic dependent nations.” This separate nation status provided Tribes with their own right of ownership of natural resources. This case also an- nounced and confirmed the United States’ trust relationship to Tribes, that was based on the concept of guardian to ward. The second important concept was the development of the Federal trust responsibility to provide support to emerging Indian communities. Obviously, there is no one definition of trust respon- sibility that can be applied to all Indian Tribes unilaterally. The Government’s obligations to federally recognized Indian Tribes depends upon treaties, statutes, court decisions, and executive orders affecting those Tribes. A part of this trust responsibility involves the protection and management of Tribal forests. 1 The context of the federal trust responsibility and the trust obligations of the United States relating to Indian forest management are set forth in the National Indian Forest Resources Management Act (NIFRMA P.L. 101-630) and its implement- ing regulations (25 CFR § 163). While the
Part of this trust responsi- bility involves protection and management of tribal forests. George Smith
trust responsibility is a government-wide mandate applicable to all federal agencies, the Secretary of the Interior is designated in NIFRMA as the principal trustee for fulfilling trust obligations in the management of Indian forests. In 1910, a forestry division was creat- ed within the Department of the Interior (DOI) Office of Indian Affairs. From that time until the mid-1970’s, Indian forest management activities were carried out as direct operations of the Bureau of Indian Affairs (BIA). Standards and guidance for performance of the trust responsibility were largely described in BIA manuals and handbooks developed as the agency’s interpretation of compliance with require- ments of the federal forestry regulations. Although not specifically identi- fied as such, trust standards were also contained in Forest Management Plans developed and approved by Tribes and the BIA. As Indian forest management advanced, Tribal leadership expressed an increasing interest in how their forests were being managed. In some instances, there was concern as to whether the federal government was fully meeting
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