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For Immediate Release: Jul 30, 2012
Contact: Kirsten Stade (202) 265-7337

NATIONAL POLICY ON TRIBAL AGREEMENTS REMAINS IN LIMBO

Draft Policy Conflicts with Past and Pending National Bison Range Funding Pacts


Washington, DC — The U.S. Department of Interior is pursuing a funding agreement with an Indian tribe for operation of a national wildlife refuge that cedes far more federal control than a draft national policy governing such agreements, according to a document released today by Public Employees for Environmental Responsibility (PEER).  Had Interior implemented its national policy, it would likely have avoided years of litigation and obviated the need for many months of negotiation and tribal lobbying.

Under the Indian Self-Determination and Education Assistance Act, Interior may enter into agreements with tribes to perform certain functions on national parks and refuges to which the tribe has a cultural or historical connection.  For the past seven years, Interior has unsuccessfully tried to execute a funding agreement with the Confederated Salish and Kootenai Tribes (CSKT) to operate the National Bison Range and a complex of three other refuge units in Montana.  

This arrangement was controversial, in large part because it ceded effective control of federal functions to a sovereign nation.  The first CSKT agreement was rescinded by the U.S. Fish & Wildlife Service (FWS), which manages the refuge system, in 2006 after less than two years due to an array of tribal misconduct.  The second pact was struck down by a federal judge in 2010 in a lawsuit brought by PEER.  This May, Interior unveiled a third version that relinquishes even more latitude to the tribe than previous ones.

At the same time, there was an effort within FWS to develop a national policy to govern these agreements since another 18 refuges in 8 states, constituting 80% of the entire National Wildlife Refuge System, are eligible for similar treatment, as are 57 National Parks in 19 states.  Agency officials have, as recently as this year, claimed that development of a national policy was proceeding on a “parallel track” to the National Bison Range deal.  In reality, however, drafts of a national policy were last circulated among refuge staff back in 2006 and that policy was significantly different from the CSKT agreement, in that –

  • The draft policy gave FWS officials unilateral authority to protect “a trust resource or a natural resource” including immediately taking back control of operations.  By contrast, the CSKT agreement lays out an elaborate, almost impenetrable process of reviews and appeals if performance complaints arise;
  • The draft policy prohibits entering into a tribal agreement “if the cost of the agreement exceeds that of competing activities using Service employees.” The CSKT deal was so expensive it required reallocation of funds from other refuge units, and in addition, the CSKT would get to pocket any unspent federal funds under the new agreement; and
  • The draft policy discourages displacement of career employees while the CSKT agreement would uproot almost all of the career employees, who could stay only if hired or chosen by the tribe.
Perhaps most significant, the draft policy has strict prohibitions on contracting out “inherently federal functions” which the CSKT agreement fails to heed.  Outsourcing of refuge management functions was a key element of the PEER suit which prevailed on other grounds, leaving the issue undecided.

“Given that scores of parks and refuges may be subject to similar agreements, it is irresponsible for Interior to neglect developing a national policy before negotiating any deals,” stated PEER Senior Counsel Paula Dinerstein who brought PEER’s successful suit invalidating the last CSKT deal while pointing out that the pending agreement has many of the same legal vulnerabilities as its predecessor.  “Approaching this issue in an ad hoc fashion disserves taxpayers who will have to pay for any windfalls won by tribal lobbyists. Whatever concession Interior yields to one tribe will become a minimum demand for all others.”

 

  • The draft policy gave FWS officials unilateral authority to protect “a trust resource or a natural resource” including immediately taking back control of operations.  By contrast, the CSKT agreement lays out an elaborate, almost impenetrable process of reviews and appeals if performance complaints arise;
  • The draft policy prohibits entering into a tribal agreement “if the cost of the agreement exceeds that of competing activities using Service employees.” The CSKT deal was so expensive it required reallocation of funds from other refuge units, and in addition, the CSKT would get to pocket any unspent federal funds under the new agreement; and
  • The draft policy discourages displacement of career employees while the CSKT agreement would uproot almost all of the career employees, who could stay only if hired or chosen by the tribe.
Perhaps most significant, the draft policy has strict prohibitions on contracting out “inherently federal functions” which the CSKT agreement fails to heed.  Outsourcing of refuge management functions was a key element of the PEER suit which prevailed on other grounds, leaving the issue undecided.

“Given that scores of parks and refuges may be subject to similar agreements, it is irresponsible for Interior to neglect developing a national policy before negotiating any deals,” stated PEER Senior Counsel Paula Dinerstein who brought PEER’s successful suit invalidating the last CSKT deal while pointing out that the pending agreement has many of the same legal vulnerabilities as its predecessor.  “Approaching this issue in an ad hoc fashion disserves taxpayers who will have to pay for any windfalls won by tribal lobbyists. Whatever concession Interior yields to one tribe will become a minimum demand for all others.”