Excerpted From: Bethany R. Berger, Intertribal: The Unheralded Element in Indigenous Wildlife Sovereignty, 48 Harvard Environmental Law Review 1 (2024) (323 Footnotes) (Full Document)

BethanyRBergerOn July 20, 2020, explosives rang through the woods outside Bellingham, Washington. With the removal of the last of the 125-foot-wide dam across the Nooksack River, water rushed free for the first time in a half century. The City of Bellingham had built the dam in 1961, blocking fish passage and transforming habitat integral to the Nooksack and Lummi Tribes. Its removal was the culmination of almost twenty years of negotiation between the tribes, the city, and the state. Trevor Delgado, Historic Preservation Officer for the Nooksack Tribe, watched the water flow. “The tribe has been waiting for this for decades,” he said. “This is the start of a new direction.”

As in this and other dam removals across the country, Indigenous peoples are exercising more influence over wildlife and habitat preservation than at any time since colonists dominated their lands. With Deb Haaland (Laguna Pueblo) as Secretary of Interior and Chuck Sams (Cayuse and Walla Walla) as Director of the National Parks Service, tribal citizens hold key leadership positions in federal environmental and resource management. Tribal treaty rights are powerful tools for conservation, leading, for example, to a sweeping mandate to Washington State to restructure dams and culverts blocking salmon migration. In response to Indigenous advocacy, Congress declared bison the national mammal of the United States in 2016. In 2022, four tribal nations and the United States agreed to co-manage Bears Ears National Monument, a historic measure that may serve as a model for tribal-federal co-management of other public lands.

Despite the celebration of these developments, there is little recognition of a key element in their success: the role of intertribal entities. Behind Bears Ears, behind treaty rights victories in the Northwest and Midwest, behind recognition of bison as the national mammal, and behind many other tribal conservation success stories are intertribal organizations, organizations formed and governed by multiple tribes working together to protect vital resources. Far more than ad hoc gatherings, these entities are often decades old, with legal attributes similar to those of the tribes that create them. As this Article shows, these organizations have been critical to advances in both tribal self-determination and conservation.

The absence of scholarship on intertribal wildlife management organizations reflects a broader lacuna in federal Indian law. Federal Indian law scholarship focuses almost exclusively on legal relationships between tribes and non-tribal governments, whether federal, state, or (occasionally) international. In so doing, this scholarship emphasizes laws developed primarily on non-tribal terms for non-tribal arenas. But Indigenous governments have long negotiated legal relationships between themselves. Indeed, treaty negotiations between Indigenous and European-American governments were built in part upon pre-contact rules of intertribal diplomacy. The 1944 formation of the National Conference of American Indians, governed by tribal governments from across the United States, created a new forum for intertribal action. Although wildlife management organizations may be the most common example of the intertribal form, tribal nations are creating such organizations to serve a variety of needs, from health care to insurance coverage to banking. These organizations form against the backdrop of federal and state law, but through them tribes define their relationship through distinctly tribal law and policy. As the first legal publication focused on the intertribal form, this Article reveals a new model through which to understand Indigenous legal action.

Because intertribal organizations do not fit within models that assume individual tribes as legal actors, they face challenges in asserting the legal attributes of tribes. A number of cases consider whether and to what extent intertribal organizations are entitled to sovereign immunity and autonomy from state and federal laws. A few of these cases turn woodenly on formalistic criteria, particularly whether they are incorporated under federal, state, or tribal law. But most undertake a more sensitive investigation into the purposes of the organizations to determine whether they are entitled to the sovereign rights of the tribes that form them. By examining these cases, this Article provides both courts and tribes with guidance on the intertribal form. It also identifies a new category of law, intertribal law, that many of these organizations use to incorporate.

Equally important, the Article provides a new lens through which to examine both legal and environmental change. The intertribal organizations examined here are powerful engines of both de jure and de facto sovereignty. They play an important role in securing and implementing judicial victories that protect treaty rights to fish and hunt free of state control. Further, by pooling tribal resources to perform monitoring and enforcement functions, they contribute to the development of tribal governmental institutions, without which de jure sovereignty is meaningless. Through providing a coordinated voice, moreover, these organizations have won a secure role in non-tribal decision-making bodies, with exponentially greater influence than tribes would have on their own.

These organizations also appear to have a transformative environmental impact. Although there are too many variables to rigorously measure the ecological impact of intertribal management here, these organizations have repeatedly catalyzed better monitoring, higher standards, and population reintroduction and preservation. Further, they have contributed to the development of a distinctly Indigenous science, one informed not only by traditional ecological knowledge (the ecological knowledge passed down within Indigenous communities) but by shifting power relations to prioritize the different knowledge sources and scientific questions asked by Indigenous communities.

Part I discusses the reasons why wildlife governance is such an important arena for the intertribal form. Some of these reflect the general reality that ecosystems ignore political boundaries, but others are distinctive to Native peoples: treaties and other laws resulting in shared resources between tribes; the artificiality of imposed definitions of tribes and reservations; and the vulnerabilities of individual tribes against non-Native domination.

Part II provides case studies of three of the most important intertribal organizations, the Northwest Indian Fisheries Commission, the Great Lakes Indian Fish and Wildlife Commission, and the Inter-Tribal Buffalo Council. These organizations serve distinct tribal groups and work with distinct nonhuman populations, and have different legal histories and structure. The case studies provide more specific examples of the challenge and promise of these organizations.

Part III examines the legal status of intertribal organizations generally, and the varying results when they have asserted sovereign immunity, autonomy from state law, and exceptions from federal laws of general applicability. This part provides guidance to tribes seeking to form intertribal organizations and to judges seeking to avoid irrational results. It also identifies the promise of intertribal law in creating and governing these organizations.

Part IV discusses the impact of intertribal wildlife organizations in contributing to effective and sustainable management; enhancing tribal sovereignty; and developing a distinctly Indigenous body of scientific knowledge.

Before beginning, I want to acknowledge the danger in writing about Indigenous peoples generally: there are 574 federally recognized tribes; their ancestors spoke scores of distinct languages, and they had (and have) vastly different cultures, practices, and environments. The risk of essentialization is particularly strong in discussing Indigenous relationships to nature. Non-Indians have long employed tropes of an “ecological Indian” always acting in harmony with an Edenic natural world. Sometimes these tropes were used to undermine Indigenous humanity and rights, as in Chief Justice Marshall's assertion that “to leave [tribal governments] in possession of their country, was to leave the country a wilderness” in order to diminish tribal property and sovereign rights. Sometimes these tropes served environmental claims, as in the famous “crying Indian” public service announcements of the 1970s. Often these tropes had no more to do with the actual lives and histories of Native peoples than did “crying Indian” actor Iron Eyes Cody, who claimed to have been born to Cherokee and Cree parents in Oklahoma, but was actually born to Italian immigrants in Louisiana.

There are, however, similarities among the approaches of the groups examined here. One reveals an irony in this Article's title, with its reference to “wildlife.” “Wild” evokes the two dominant Western approaches to nature: either that it must be tamed and broken or that it must preserved and isolated in its separation. National Parks Director Sams reports, however, that in his decades of travels among different tribes, he has never found one with a word equivalent to “wild.” All the Indigenous groups discussed here perceive both animals and their ecosystems as deeply connected, not separate from, human life. Potawatomi botanist Robin Wall Kimmerer captures this difference in contrasting the Judeo-Christian and Anishinaabe creation stories. In the first, Eve succumbs to a snake's temptation to eat forbidden fruit and is excluded from Eden; in the second, Sky Woman falls to earth bringing gifts and partners with the animals of earth to build a fertile land. The contrast, like the absence of a word for wild, reflects a third way that seeks neither to tame nor to preserve untouched the animals in their control. Instead, the mission of these groups is to at once consume and conserve animals and the ecosystems they inhabit. The approach is dynamic and transformative, far from the ecological Indian trope.

This third way is also helpful in understanding the relationships between the tribes that compose intertribal organizations. These relationships do not reflect Edenic harmony. Just as humans and non-human creatures have different, sometimes opposing, interests, so too different tribes have different, and sometimes opposing, interests. Intertribal organizations may be forums for conflicts among their members, and cannot always resolve them. But through them tribal governments create a new force, one that alters power relationships and achieves transformative results.

[. . .]

Let me end, as I began, with a story. In November 2022, the Inter-Tribal Buffalo Council transferred 100 buffalo to the Wolakota Buffalo Range on the Rosebud Sioux Reservation in what is now South Dakota. Established in 2020, about 1,000 buffalo now roam across Wolakota's 28,000 acres. The day after the transfer, tribal citizen T.J. Heinert took down a bull from the herd. After placing tobacco on the body and saying a prayer, Heinert and a companion, Daniel Eagle Road, brought the buffalo to the Wolakota ranch, where twenty adults and children were waiting. There, Rosebud elder Duane Hollow Horn Bear told the listeners, “This relative gave of itself to us, for our livelihood, our way of life.” Together, the group butchered the animal, working into the night to remove and clean the pelt, stomach, and tongue, and package the meat for distribution to families through a tribal food program.

The story reflects many relationships. That between the buffalo and the rolling high plains prairie. Between the buffalo and the Lakota people. Between those who hunt the animal and those who prepare it. Between the individual hunter and community members in need. Between the Inter-Tribal Buffalo Council and its member tribes. And finally, the relationship between the Inter-Tribal Buffalo Council and the many federal, state, and local agencies it negotiated with to make restoring buffalo to tribes possible.

In Indigenous Economics, Professor Ronald Trosper (Salish-Kootenai) argues that Indigenous economies reflect a “relational economics.” In this economics, the starting point is not the individual, but the relationships-- between individual and group, between groups, and between them and lands and non-human beings. Like the buffalo hunt at Wolakota, the intertribal organizations examined here embody this relational approach, forging bonds between tribes to secure relationships with non-tribal groups and thereby restore relationships between people, animals, and land.

Wallace Stevens Professor, University of Connecticut School of Law; Oneida Indian Nation Visiting Professor, Harvard Law School.