Year of Award

2011

Document Type

Professional Paper - Campus Access Only

Degree Type

Master of Science (MS)

Degree Name

Resource Conservation

Department or School/College

College of Forestry and Conservation

Committee Chair

Martin Nie

Commitee Members

David Beck, Mike Patterson

Keywords

agreements, cooperation, Native American, partnerships, property rights, reserved rights, treaties, treaty rights, tribal rights

Abstract

Many tribes with reserved treaty rights were forced to seek court enforcement to exercise rights to hunt, fish and gather forest products from national forests and grasslands. As a result, divergent judicial opinions between the federal Ninth and Tenth Circuit Courts ensued, but tribes have been successful in settling three areas of law, which are: 1) tribal members can exercise rights free from state regulation; 2) tribal governments have inherent sovereignty that allows them to regulate their members off-reservation; and 3) tribes have been awarded substantial portions of the salmon runs. Nonetheless, many questions remain unsettled by the judiciary, which has triggered some federal and tribal governments to seek negotiated agreements to ease the treaty implementation process including cooperative arrangements that provide among other things habitat restoration projects. These agreements do not take place over night; they often require years of building relationships before enough trust is built-up before parties can sit down with one another. In some instances, it actually took litigation or the fear of litigation for parties to structure a relationship that worked towards meeting mutual benefits. The risks of pursuing judicial remedies cannot be overstated when sovereignty hangs in the balance. As a result, negotiated agreements would likely continue into the future to better foster communication, cooperation, and coordination to everyone’s benefit. The purpose of this paper is threefold: 1) to identify and document reserved resource rights held by Native American tribes within Region 1 of the National Forest System; 2) to identify and analyze how those reserved resource rights held by tribes within treaties have been interpreted by the federal courts; and 3) to inventory and evaluate the use of USFS/tribal cooperative agreements and contracts as a way to manage reserved treaty rights on national forests and grasslands. In addition, it is the conclusion of this paper that judicial risks will more likely lead to working out negotiated agreements as an alternative in the near future.

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© Copyright 2011 Robin Mark Stewart