In the early fall of 2018, Marina Anderson sped down the rough road connecting one side of Alaska’s Prince of Wales Island to the other. She had only a few hours to get to a public meeting over the potential opening of the Tongass National Forest, her tribe’s ancestral land, to logging and mining.
Mail is delivered by floatplane once a week to the Organized Village of Kasaan’s tribal office on a rugged island in southeast Alaska. But the mail can be delayed for a week, or even a month, by high winds and rough waters. Anderson, who was then working as a tribal office assistant, had opened an important letter barely in time: The U.S. Department of Agriculture had notified the tribe of a public hearing, to be held that very day, on whether to remove Roadless Rule protections from the Tongass National Forest. “We were blindsided by it,” Anderson, who is now Kasaan’s tribal administrator, said recently.
In the end, Anderson and the tribal official she went with made it to the meeting and were able to hear directly from the Forest Service and speak with the other tribes present. Still, Anderson’s experience exemplifies the federal government’s long-running failure to adequately work with tribes. Alaska’s petition to the Forest Service to increase logging on the Tongass was the latest move in a two-decade battle, including policy changes, court decisions, appeals and injunctions, over the protection of 9.4 million acres of the world’s largest unfragmented temperate rainforest. In response, at the end of July, 11 Southeast Alaska Native tribes, including Kasaan, petitioned the USDA, the agency that oversees the Forest Service, requesting a new rule that would require it to work with tribes to identify and protect parts of the Tongass that hold life-sustaining value for the Tlingit, Haida and Tsimshian — old-growth red cedar trees, which are used for canoes; salmon watersheds; and lands with traditional fish camps and burial sites.
The July petition to create a “Traditional Homelands Conservation Rule” represents a new strategy in tribal nations’ ongoing efforts to hold the federal government to its legal responsibility to consult with them on projects that impact them. If the USDA accepts the petition, it would create a mechanism to involve the 11 tribes in the conservation and management of their ancestral lands — something that’s increasingly critical as climate change shifts the wildlife patterns and habitat that so many remote villages, including Kasaan, rely on.
THE TERM “TRIBAL CONSULTATION” oozes bureaucracy, but it is a primary process by which tribal nations can influence projects that will affect them by interacting with the U.S. on a government-to-government basis. The process is a way to acknowledge that tribes retain a relationship with ancestral lands, including those beyond reservation boundaries. “It’s an opportunity for an affected government — not just a stakeholder — to have a say in what happens,” said Natalie Landreth (Chickasaw Nation of Oklahoma), senior staff attorney at Native American Rights Fund. “These are very real rights.”
But the United States has not always consulted with tribes in good faith. The construction of the Dakota Access Pipeline, the designation (and un-designation) of Bears Ears National Monument in Utah, and the construction of the U.S.-Mexico border wall through Kumeyaay, Tohono O’odham and other tribal lands all represent federal decisions made with little or no tribal input.
Consultation was formalized as a process in 2000, when it became a requirement for federal agencies. Presidents Bill Clinton, George W. Bush and Barack Obama each reaffirmed and expanded the consultation process. President Donald Trump has not. Trump’s approach to Indigenous issues — including his reduction of Bears Ears National Monument, a tribal-led initiative, by 85% — has favored industry over Indigenous nations. But no matter who is president, longstanding problems persist in the way agencies deal with tribes. In a sweeping review of the decision-making process last year by the Government Accountability Office, interviews with 57 tribal leaders and comments from 100 tribes pointed out problems, saying agencies started the process too late and did not consider their input or respect tribal sovereignty. The agencies, meanwhile, said they had difficulties contacting tribes and complained about the lack of adequate consultation resources.
Too often, what constitutes enough consultation is determined by federal agencies, with little recourse for tribes that disagree.
Too often, what constitutes enough consultation is determined by federal agencies, with little recourse for tribes that disagree. In their Traditional Homelands petition, the 11 tribes wrote that the process is currently a “one-way system of communication,” where federal agencies use consultation to “issue orders and give updates to the tribes about what will happen.”
In the case of the Tongass, six tribes, including Kasaan, had signed on to cooperate with the federal government on a request for development by the state of Alaska. (Some have since withdrawn.) But throughout the two-year process, tribes said the USDA repeatedly ignored their input and requests for in-person meetings; fast-tracked seemingly arbitrary deadlines; and proceeded as usual despite a pandemic that has disproportionally hurt Native communities. None of the tribes recommended a full repeal of the Roadless Rule, and around 95% of public comments opposed complete exemption. So far, however, exemption remains the U.S. Forest Service’s clear preference.
“The Forest Service recognizes and supports the sovereignty and self-determination of American Indian and Alaska Native tribal nations through building, maintaining, and enhancing government-to-government relationships with Tribal Governments,” said a spokesperson for the USDA, adding that it has received and is reviewing the petition. “We engage inclusively with people in mutual respect, active collaboration, and shared stewardship. We promote meaningful nation-to-nation consultation with tribal nations.”
With the petition, the tribes — Kasaan, the Organized Village of Kake, Klawock Cooperative Association, Hoonah Indian Association, Ketchikan Indian Community, Skagway Traditional Council, Organized Village of Saxman, Craig Tribal Association, Wrangell Cooperative Association, Yakutat Tlingit Tribe, and Central Council Tlingit and Haida Indian Tribes of Alaska — are asking the USDA to move toward a framework of “mutual concurrence. That concept improves on consultation and better aligns with the international standard of “free, prior and informed consent,” which is enshrined in the U.N.’s Declaration of the Rights of Indigenous People. With mutual concurrence, “the power dynamic is much more even, where the tribe has more of a substantive say, and the agency has to respond to and respect that tribal input,” said Monte Mills, director of the Margery Hunter Brown Indian Law Clinic at the University of Montana, who specializes in public lands and tribal management. “It’s proposing a new relationship for the management of the forest as a whole.”
THE FOREST SERVICE’S FINAL DECISION on the Tongass exemption will come this fall. So, too, could the decision on whether or not the USDA will take up the petition for a traditional homelands rule. A rejection isn’t necessarily the end: A new presidential administration would give the 11 tribes a new opportunity to make their case.
The Tongass National Forest encompasses a number of Southeast Alaska Native villages and their ancestral lands, so any decision about it will affect access to food sources like salmon, Sitka black-tailed deer and wild berries, as well as cultural resources like western red and yellow cedar trees, which are used for regalia, baskets, totem poles, masks and smokehouses. Yellow cedar is imperiled by climate change, and the Tongass is also a critical carbon sink. “We need (the Tongass) more than ever as the climate’s warming and our tourism and fishing industries have been taking a hit, both because of the pandemic and changing ecosystem conditions that have affected fish runs,” said Kate Glover, a staff attorney for Earthjustice based in Juneau who has worked on litigation around the Tongass. “We need to protect the forest that they depend on.”
With Alaska warming faster than the rest of the United States, it’s getting harder to put up food for the winter, a matter of survival in places like Kasaan, which has no grocery store. And the pandemic is only exacerbating the problem, creating disruptions in travel and food supplies.
At 26 years old, Marina Anderson has heard nearly all her life about the possibility that the Tongass could be logged, with little regard for the tribes who rely on it. Her father was a logger and a tribal council member, her mother president of the Alaska Native Sisterhood, a nonprofit that promotes Indigenous rights. Anderson remembers doing her homework at their meetings, as conversations about sea otter hunts, Alaska politics and Indigenous rights wafted around her. “Our way of life is something that isn’t always transcribable to English,” Anderson said from her office in Kasaan in August. “My relationship to the Tongass goes so deep that I’m made aware of it every day and in different ways. The salmon that I eat, that comes from the Tongass. The air that I breathe, that comes from the Tongass.”
That depth of connection and intrinsic value can get lost in the tribal consultation process, especially given the way the U.S. views land and water and the life they harbor, Anderson said. Cultural needs — for generations to come — are not quantifiable. “The Forest Service asked me, ‘How many trees do you guys need left for canoes and totem poles?’ ” Anderson said. “They understand that we need old growth: tight grain, beautiful logs, straight-grain logs. What they don’t understand is that we don’t have a number for them.”
Editor’s Note: Since this story went to press, the Forest Service has issued a Final Environmental Impact Statement for a full exemption of the Tongass National Forest from the Roadless Rule.
Anna V. Smith is an assistant editor for High Country News. Email us at editor@hcn.org or submit a letter to the editor. Follow @annavtoriasmith
This article appeared in the print edition of the magazine with the headline Against ‘one way’ communication.
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