Colorado Environmental Law Journal

Monte Mills and Martin Nie have published “Planning A New Paradigm: Tribal Co-Stewardship and Federal Public Lands Planning” in the Colorado Environmental Law Journal.

Here is the abstract:

Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last halfcentury, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and implements plans presents complex challenges for both the agencies and those interested in participating in or influencing both planning and resultant management decisions. These challenges can frustrate, if not derail, the incorporation of meaningful changes in planning documents that, given the often decades-long lifespan of a plan, could have long-term impact. The federal Departments of Interior and Agriculture—home to the four major land management agencies—are enhancing their engagement with Native Nations in the co-stewardship of public lands and resources. Given its importance to the management of public lands and resources, planning is key to these efforts, especially because most plans now, in effect, do little to consider the interests of Native Nations. Thus, although federal and tribal co-stewardship covers a range of activities, the relationship between co-stewardship and planning offers one of the most powerful avenues for reshaping the future of federal-tribal relations in the management of public lands and resources. This Article provides the first comprehensive effort to align federal public land planning with tribal co-stewardship through an analysis of the statutory, regulatory, and procedural planning requirements relevant to each of the four major federal public land management agencies. The Article also analyzes various plans and planning efforts to offer a roadmap for how Native Nations and their federal partners can use planning to spark and sustain a new era of tribal co-stewardship of federal lands and resources.

Vanessa Racehorse and Anna Hohag have posted “Achieving Climate Justice Through Land Back: An Overview of Tribal Dispossession, Land Return Efforts, and Practical Mechanisms for #LandBack,” published in the Colorado Environmental Law Journal.

Here is the abstract:

Due to the increasing pressures of the climate change crisis, federal and state governments are beginning to acknowledge that Indigenous-led stewardship and control over Tribal aboriginal homelands is a crucial component of addressing climate change. In the United States, Tribal nations have a long history of responsible land stewardship, with environmental conservation and respect for the world’s biodiversity being an inextricable piece of Tribal customs, traditions, and knowledge. This Article strives to pay due respect to traditional land stewardship and its important role in the past, present, and future.

Part I of this Article starts with an overview of the history of forcible dispossession of Native American land, and provides initial thoughts on the myriad of meanings that the expression “Land Back” can hold. The United States has a long history of forcibly removing Native American Tribes from their ancestral homelands and relocating them to smaller plots of land, with some estimates indicating Tribal nations ultimately lost 98.9 percent of their aboriginal homelands post-contact. Part II will discuss how this change in land tenure and land use can be linked to climate change, with Indigenous communities often at the frontline of climate change events. Additionally, areas predominantly occupied by Indigenous peoples are frequently more prone to experience extreme weather conditions, such as extreme heat, drought, greater wildfire risks, and extreme flooding, the latter of which has caused the relocation of some coastal Indigenous communities.

Although modern Indian land use is manifold, traditional Indigenous stewardship is rooted in careful management of the ecosystem. Indigenous peoples across the globe remain the stewards and protectors of most of the world’s biodiversity, while standing at the forefront of the opposition to extractive industries. According to a report conducted by the Indigenous Environmental Network, Indigenous-led movements in resistance to oil and gas projects have stopped or delayed greenhouse gas emission equal to nearly one-quarter of the annual total U.S and Canadian emissions. The leadership demonstrated by Indigenous peoples to combat the climate crisis is indicative of the cultural value system that justifies land restitution.

Parts III, IV, and V of this Article explore the efforts being made on the federal, state, and Tribal level to return land to its original caretakers and discusses practical ways that Tribal governments and organizations are achieving Land Back through mutual goals of conservation and repatriation. While the preferred method used by the federal and state governments and their respective agencies has been to extend opportunities for Tribal co-management, this is not enough to curb the urgency of the impending climate disaster, the effects of which have been, and will continue to be, felt first and foremost by Indigenous peoples. It is time for Land Back. There is no clearer argument for Land Back than to prevent irreparable harm to the planet—a cause that is unquestionably in the greatest good for all people.