In 2016, not long after the catastrophic North Star Fire ripped through north-central Washington, Confederated Colville Tribes wildlife biologist Jarred-Michael Erickson was walking through a burned forest on Colville lands when he found an unusual paw print in the snow: A lynx was on the move. “It’s lynx habitat historically,” said Erickson, who is now the tribes’ chairman. “It’s just there hasn’t been many lynx in the state since they’ve been hunted down.” Long threatened by hunting and habitat destruction, only a few hundred lynx are believed to remain in the continental United States, but with the help of federal funding through the Endangered Species Act, the Colville Tribes have released 25 animals on their 1.4 million acres and plan to release another 24.
Tribal nations have a complicated relationship with the 1973 Endangered Species Act. Tribal governments have used the ESA on behalf of imperiled, culturally important species, litigating over dams that block salmon migration and securing funding to reintroduce protected species on their lands. But beyond Alaskan Native subsistence hunting rights, the law does not acknowledge tribal sovereignty. How, or even if, it affects treaty hunting rights and other aspects of sovereignty remains a disputed question.
The Endangered Species Act can be “both sword and shield for tribes,” said Monte Mills, director of the Native American Law Center at the University of Washington. “The limited way in which the ESA views wildlife resources, which I think is great in terms of protecting those threatened, endangered species, also doesn’t really account for … tribal sovereignty.”
IN 1997, INTERIOR SECRETARY Bruce Babbitt and Commerce Secretary William Daley sought to remedy the law’s silence on tribal rights with an order acknowledging that tribal lands are not the same as federal lands. It directed federal agencies to defer to tribal management plans for plants and wildlife and to consult with tribal governments whenever a species found on tribal lands gained protected status. A spokesperson for the U.S. Fish and Wildlife Service said the agency now “routinely considers and uses tribal expertise and knowledge” in determining when to list a species and how to designate its critical habitat. (By law, federal agencies and federally funded activities must avoid “adverse modification” of critical habitat.)
In some cases, the federal government has chosen to exclude tribal lands when it designates critical habitat, citing possible negative impacts on tribal sovereignty or political relations. In 2011, the Fish and Wildlife Service did so when it identified critical habitat for the endangered arroyo toad, a bumpy, 2-inch-long Southern California amphibian with a melodious trill. Two years later, the agency made a similar decision concerning the southwestern willow flycatcher after a number of tribal nations objected to the inclusion of their lands. The Southern Ute Indian Tribe wrote that a critical habitat designation on tribal lands would require an “onerous, time-consuming bureaucratic process that infringes on tribal sovereignty and treaty rights and frustrates the ability of the Tribe to provide basic government services.”
“The limited way in which the ESA views wildlife resources, also doesn’t really account for…tribal sovereignty.”
The federal government doesn’t always make exceptions when conflicts occur. On the Uintah and Ouray Reservation in northeastern Utah, the law’s protections for two endemic cactus species clashed with the Ute Indian Tribe’s ability to develop its energy resources, its largest source of revenue.
Ataya Cesspooch, an enrolled citizen of the Fort Peck Sioux and Assiniboine Tribes and Northern Ute descendant, worked for the Ute Tribe and the Bureau of Indian Affairs as an environmental protection specialist when the tribe was developing its own management plan for the cactus in 2015. The Endangered Species Act doesn’t apply to listed plants on private lands, but it does apply to those on tribal lands when activities that need federal permitting, including oil and gas, are involved. Federal protections for the two species, she said, often fell into a “gray area” between recommendations and requirements, increasing the already lengthy federal approval process for oil and gas drilling on tribal lands. “Overall, the Fish and Wildlife Service did a really bad job of consulting with the tribe, of keeping them in the loop around a lot of this decision-making,” Cesspooch said. “That then led to a lot of antagonistic feelings.”
Cesspooch, now a doctoral student at the University of California, Berkeley, plans to interview Ute tribal members about their perceptions of energy development on the reservation for her dissertation research. Compounding the frustration around the cactus is the tribe’s own history of land dispossession: The U.S. forcibly removed Ute bands from their homelands in Colorado in 1880, separating them from culturally significant plants and wildlife, which do not include the cactus. “It’s caused a lot of tribal members to say the U.S. government cares more about this cactus than it does about Ute people,” Cesspooch said.
SOME OF THE TENSION around the Endangered Species Act concerns tribal nations’ right to fish, hunt and gather on their homelands, as recognized by treaties with the U.S. government and by the U.N. Declaration of the Rights of Indigenous People. The Colville Tribes have reintroduced not only lynx but salmon, pronghorn, bison and bighorn sheep, hoping to establish healthy populations of these species and resume a hunting relationship with them, just as they have with gray wolves, says Chairman Erickson. Gray wolves remain federally protected in much of the U.S., but at least seven packs overlap with Colville lands, and the tribe has allowed its members to hunt since 2012. Earlier this year, the state of Colorado even approached the tribe about transplanting some wolves from the area for reintroduction, a possibility that remains under discussion.
“It’s caused a lot of tribal members to say the U.S. government cares more about this cactus than it does about Ute people.”
When it comes to restoring wildlife on tribal lands, Erickson explained, “it’s not just to get them on the landscape, which is important. We want to make sure they’re there for future generations, because we have a lot of cultural ties to all these species as well.”
The impacts of off-reservation development and environmental degradation have forced some tribes to scale back subsistence activities. The Klamath Tribes in southwest Oregon once fished for c’waam and koptu, two species of suckerfish that live only in the Upper Klamath River Basin, but they stopped in 1986 because polluted waters and altered hydrology had caused both species’ rapid decline. Today, both species are listed as endangered, and there are only a few thousand koptu left. In Canada, West Moberly First Nations ceased hunting Klinse-Za caribou despite their importance to tribal lifeways; in 2013, there were just 38 caribou left. By 2022, after an Indigenous-led recovery effort, there were 114, a number that meets a recovery target set by the Canadian government under the Species at Risk Act, the ESA’s Canadian counterpart, but still falls well below a sustainable hunting population.
Laws like the ESA and the Species at Risk 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 is to make sure things don’t go to zero,” said Clayton Lamb, a wildlife biologist who co-wrote a paper with West Moberly Chief Roland Willson on the need to include tribal priorities in species recovery plans. Instead of aiming for the minimum number required for species survival, recovery goals could reflect the historic abundance — the number of caribou or salmon that would support regular hunting and fishing and the reconnection of culturally meaningful foodways.
As Erickson pointed out, many of the government actions and policies that initially reduced wildlife abundance also displaced and diminished tribal people and power. “A lot of the native species that have been extirpated are similar to us as tribes, Native Americans, and what they tried to do to us,” he said. The Endangered Species Act was passed to help recover imperiled species, but tribes want to do more than that: They want to restore their own relationship with those plants and animals. As Erickson put it, they want endangered species to “not just recover, but flourish.”
This story is part of High Country News’ Conservation Beyond Boundaries project, funded by the BAND Foundation.
Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental justice for the Indigenous Affairs desk from Colorado.
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This article appeared in the print edition of the magazine with the headline Both sword and shield.
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