By Dean B. Suagee
January 25, 2017 at 5:00 am ET
Rep. Ryan Zinke of Montana is the nominee for secretary of the Interior. The Trump transition team’s press release announcing this nomination quotes the Congressman as saying “our sovereign Indian nations and territories must have the respect and freedom they deserve.” The Rocky Mountain Tribal Leaders Council, which represents tribes from Montana, Wyoming and Idaho, quickly issued a letter endorsing the nomination, commending Zinke’s record on Native American issues.
In addition to that part of his record, Zinke also has a record of opposition to the transfer of our national public lands to the states. Press releases on his congressional website recount votes he has cast bucking party leadership on this issue. He even resigned from being a delegate to the Republican National Convention last summer because the party’s platform includes language calling for the conveyance of public lands to the states.
But on Jan. 3, Zinke voted with the Republican majority in the House to adopt a package of rules that would facilitate transferring public lands to the states. The rules package, House Resolution 5, includes a provision captioned “Treatment of Conveyances of Federal Land,” which would make it budget neutral for Congress to convey federal land to a state, local government, or tribal entity. This provision would change the current rules, which require Congress to consider the revenue that is generated from the federal lands that would be transferred and make up for the lost revenue. In effect, the change in the rules would allow Congress to give away national public lands. While tribes could be beneficiaries of such giveaways, at least hypothetically, the driving force behind this rule change is a movement to give public lands to the states for development.
Opposition to giving away our national public lands has been an important issue for Congressman Zinke. In the press release announcing his nomination for secretary of the Interior, he framed his approach to public lands in the affirmative, saying, “I will work tirelessly to ensure our public lands are managed and preserved in a way that benefits everyone for generations to come.”
Tribal nations are part of that “everyone” and we are going to continue to be here for many generations to come. Most tribal nations have historic and contemporary connections to places and landscapes that are now part of our national public lands. For a variety of reasons, the rights and interests of Native American people are more likely to be respected with such lands in federal ownership than under control of the states. For example, the graves protection provisions of the Native American Graves Protection and Repatriation Act, apply on federal lands but not on state-owned land. Similarly, Executive Order 13007 on “Indian Sacred Sites” also applies on federal lands but not on state lands.
In addition, land-managing federal agencies have certain responsibilities under the National Historic Preservation Act for lands under their jurisdiction that do not apply to state-owned lands. Many places that are sacred according to tribal traditions can be shown to be eligible for the National Register of Historic Places, typically as traditional cultural properties. The NHPA section 106 process is triggered by federal action or funding, regardless of the ownership of the land. If historic properties would be affected by a proposed federal project (such as a new highway or energy development project) or a federally funded or authorized project, the federal agency with jurisdiction over the project at hand is required by section 106 of the National Historic Preservation Act to consider the effects of the project on historic properties. If historically significant tribal sacred places are located on public lands, however, the federal agency is also subject to the mandate in NHPA section 110 to manage historic properties for the preservation of their cultural values. This should include ensuring access by tribal citizens to carry on cultural traditions.
In recent years, there have been several developments regarding the involvement of tribal governments in the management of national public lands, including regulations providing for the restoration of plant gathering traditions on lands managed by the National Park Service. The U.S. Forest Service issued similar regulations on providing forest products to tribes for traditional and cultural purposes. There is also Secretarial Order No. 3342 which applies to the land managing agencies within the Department of the Interior and which directs those agencies to identify opportunities for cooperative and collaborative federal-tribal partnerships in the management of federal lands and resources. Such recent developments present opportunities for improvements in the relationships between tribal nations and land managing federal agencies. These critical government-to-government consultation and engagement opportunities would go away if national public lands were transferred to the states.
The day after the vote on the rules change Zinke’s office issued a statement saying that his position has not changed. What does that mean? If the U.S. Senate goes along with the House on changing the accounting rules, will Mr. Zinke, as secretary of the Interior, block any specific transfer of national public lands to a state? In a January 2016 interview, then-candidate Donald Trump told Field & Stream that he does not like the idea of transferring public lands to the states, but who knows how much Mr. Trump really cares about this issue? In the current Congress, there will be many opportunities for advocates of giveaways to slip things into must-pass bills. Tribal nations concerned about keeping national public lands in national ownership need to be vigilant.
Dean B. Suagee is an attorney with Hobbs, Straus, Dean & Walker LLP, in Washington, D.C. As a member of the Cherokee Nation, he was motivated to become a lawyer and practice Indian law.
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