Tribal governments have used the Endangered Species Act to litigate on behalf of imperiled, culturally important species like salmon and grizzly bears, but the law does not acknowledge tribal sovereignty and hunting rights. Anna V. Smith, associate editor of High Country News, joins us to talk about the complicated relationship between tribes and the 50-year-old law.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. The Endangered Species Act turned 50 this year. There have been a lot of retrospectives on its legacy and impact. One of them was published recently in High Country News. It focuses specifically on the way the law has affected Native people and lands. Tribal governments have used the Endangered Species Act (ESA) to litigate on behalf of imperiled culturally important species like salmon and grizzly bears, but the law doesn’t acknowledge tribal sovereignty or hunting rights. Anna V. Smith is an associate editor on the Indigenous Affairs Desk at High Country News. She wrote the article and she joins us now. Welcome to the show.
Anna V. Smith: Thanks for having me, Dave.
Miller: So how much did the Endangered Species Act, as originally written, take into account tribal sovereignty?
Smith: So that is a very straightforward answer: It didn’t, which was not uncommon for federal laws at the time in the 1970s, which is when the ESA was written. There’s a number of public land laws that passed around that time that also didn’t include tribal sovereignty, so suffice to say it was a real blind spot for Congress and Federal agencies at that time.
Miller: Monte Mills, the director of the Native American Law Center at University of Washington – he said that the Endangered Species Act can be “both sword and shield for tribes.” What did he mean?
Smith: Yeah. So my interpretation of his quote is that the act can really be used by tribal nations, not just to protect existing populations of species on the reservation lands, but it can also support efforts to reintroduce wildlife on their lands. It can also affect really large-scale change off reservations. So there is a number of ways basically that the ESA can be wielded by tribes just depending on the situation.
Miller: So what is an example of the way the law has been a shield for a Native tribe?
Smith: So a lot of tribes, for example, have their own management plan for their lands for endangered and threatened species and so it has acted to protect species on their lands. Some, like the Navajo Nation, even have their own culturally informed list of such species. And it also has helped in terms of reintroduction. So there’s a lot of examples of tribes reintroducing species to their lands, like the lynx on Confederated Colville Tribal lands or the Yurok Tribe reintroducing the condor. And in both of those cases, the Act helped provide funding and also federal agency support for tribes in those endeavors.
Miller: What about an example of how the law has been a sword?
Smith: When it comes to the ESA being a sword, I think the best examples of this are what we’ve seen around the dams on the Klamath and the Snake Rivers, which is very applicable to your region. So there, tribes along with conservation groups have been really successful wielding ESA litigation along with treaty rights to move the conversation towards dam removal. And that strategy has had a really far-reaching impact. This year, the first of four Klamath dams has been removed, and just last week on the Snake River, the federal government announced that it would support a path towards dam removal of the Lower Snake River dams. And that was after negotiating with four different tribes and two states, Oregon and Washington. And so, I think those examples can show that it can be a really powerful tool for tribes and their priorities.
Miller: Something we’ve talked about before and we will talk about again, actually very soon. So, let’s turn a little bit into sort of halfway through this history. What did Interior Secretary Bruce Babbitt order in the late 1990s?
Smith: So that was a Secretarial Order, as you said, from the Department of Interior, and that was essentially to try to make up for the silence from the original ESA in regards to tribal sovereignty. The goal there was to really clarify for federal agencies that tribal lands are not the same as federal lands, and so that means that federal laws apply differently. For example, when the US Fish and Wildlife Service is deciding to list the species as threatened or endangered, it really needs to consult with tribes if that species overlaps with their lands. Previous to that order, there is nothing about that directing federal agencies to do that. The order also said that if tribes develop their own management plan for a species that the federal government needs to defer to that plan, instead of kind of steamrolling their own plan over that.
Miller: To what extent has that actually happened?
Smith: That’s a good question. I don’t think that my story was quite comprehensive enough to fully know the answer to that, because I think you could really write a whole book on this. I mean, every relationship between the federal government and the 574 federally recognized tribes is really quite unique, but my impression is that there’s a real spectrum there, and it’s often that tribes feel federal agencies really haven’t done a good job consulting with them. And that ESA designations have ultimately infringed on their ability to manage their own lands and wildlife.
Miller: What happens when this law intersects with tribal nations’ established rights to fish, or hunt, or gather on their lands?
Smith: So my understanding of this is that it’s actually somewhat of a legal gray area and it intersects in multiple ways. I asked the Fish and Wildlife Service about – does the ESA apply to a tribal member hunting or fishing on their own lands if it has to do with an ESA protected species? And they said yes, absolutely, that the ESA applies to tribal members in that case. But when I spoke to legal experts, they said it’s not so clear-cut, because again, as we spoke about earlier, the silence within the ESA about tribes and tribal sovereignty and its applicability. And so to date, that question actually hasn’t been clarified by the Supreme Court. It also intersects, as I mentioned earlier, by treaty rights and tribes’ treaty rights to be able to hunt and fish of various species. So, there’s kind of a gray area and a bit of a tension there that hasn’t really been addressed yet.
Miller: You include a quote from a wildlife biologist named Clayton Lamb that caught my attention. He said that laws like the Endangered Species Act “were designed to make sure species weren’t lost, but they were not designed to be able to cultivate abundance or sustain abundant populations. Their job,” he said, “is to make sure things don’t go to zero.” But how would things be different if the goal were abundant populations or, say, enough that these populations could be hunted or fished by Indigenous peoples the way they were since time immemorial?
Smith: I asked something similar to Clayton and he clarified that he’s a biologist, not a policymaker. But this argument –
Miller: Sometimes when we talk to folks, they say the exact opposite, “I’m a policymaker, not a biologist.”
Smith: Yeah. And so in this case, like this argument comes from a paper that he co-wrote with a First Nations tribal leader along with other scientists about the need to really reframe our thinking around recovering a species. And that basically the ESA is like the bare minimum. And also, I mean, Western conservation tends to think of protected wildlife and lands in terms of needing to be untouched, fenced off, not to be engaged with, and that is pretty different from some tribal nations’ approach to conservation. I also just call back to what we were talking about earlier: it’s also a question of Indigenous rights. A lot of treaties do include hunting and fishing rights, but some tribes have not been able to practice those rights because of declining populations and that’s typically caused by off-reservation forces like habitat degradation, or overfishing, or overhunting. And so part of their appeal in that paper was to include tribal priorities and goals of recovery because currently there is no mechanism for that in the ESA.
Miller: I guess I’m just wondering what this would mean in the case of some specific species, Northwest species like various salmon runs, or the northern spotted owl, or the C’waam or Koptu suckerfish that you mentioned earlier in the Klamath Basin. These are endangered species that are all getting a lot closer to zero population than abundance, even with the protections that are in place now.
Smith: I don’t have an easy answer for that. That’s kind of a billion-dollar question. But I would say that, in many cases, in the ones that you just mentioned, we actually do know what we need to do in order to recover these species. It’s just that we lack the political will and imagination to do it. So I think that their perspective was changing the way that we think about like, what is the floor, what is the ceiling, kind of shifting those goal posts? And I’d also add that in both of the cases that you mentioned, there’s a really bitter history of the ESA and communities at odds with each other over it. And so if we’re thinking about moving towards a framework of abundance for endangered species, I think that that thinking should also be applied to the communities and economies that are most affected by those species.
Miller: Well, you’re getting to I guess where I was hoping to end up – but just in the time we have left, I am curious about potential solutions or new ways forward. What did you hear from tribal leaders you talked to about alternatives, how they’d like to see the ESA operate or be changed on tribal lands going forward?
Smith: I think in terms of the ESA being changed, that’s not something that I’ve heard anyways of people proposing. I mean, it was not all that long ago that politicians in Congress wanted to open up the ESA to kind of reduce the protections. And so I think that’s kind of a whole can of worms that people feel pretty cautious to open back up. But in terms of the other part of your question, in terms of alternatives or how they like to see it operate, I think to sum up what I’ve heard is that tribal leaders would really like the federal government to better support them in their goals to reintroduce or protect the species, whether that’s through funding or capacity support, and then get out of the way and let them do it. I’ve spoken to policymakers across the political spectrum about their support for tribal management of land and wildlife. And it’s something that’s gotten a lot of support during the Biden administration as well. One recent example – I think it was earlier this month during the White House Tribal Nations Summit. The USDA and the Department of Interior announced 190 new co-stewardship and co-management agreements with tribes, some that include wildlife. And I think that is the kind of relationship-building that tribal leaders would like to see more of.
Miller: Anna, thanks very much.
Smith: Yeah, thank you so much for having me.
Miller: Anna V. Smith is an associate editor on the Indigenous Affairs Desk at High Country News.
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