Comanagement approaches in multijurisdictional contexts: A comparison of sociocultural facets on resource management strategies.

A preliminary analysis of co­management approaches in the multi­jurisdictional contexts with indigenous of the United States and Canada: A comparison of socio­cultural facets effects on

natural resource management strategies.

By: Stephen A. Daire

Wild Rockies Field Institute

Summer Semester 2014

Instructors: Peter Nelson Carlos Garcia Katie Nelson

Kelsey Patterson

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Is co­management between indigenous and state organizations a viable means to meet the

needs of 21st century sustainable development ideals? Can a balance be found between the

federal governments and the Native American tribes in the co­management of natural resources?

Is it possible to restore cultural heritage of the Native Americans along the way, are they willing

to participate (McGregor, 2004; Wyatt, 2008)? What differences and similarities can be denuded

cross jurisdictional analyses of indigenous and state interactions towards co­management

strategies? What are the inherent socio­cultural obstacles and how are they overcome? Finally,

after socio­cultural barriers have been defined, can traditional knowledge be effectively and

respectfully incorporated in aboriginal forestry practices, particularly in the Yellowstone to

Yukon Region (Y2Y)? Would this allow for a paradigm shift to occur to undermine centuries of

colonialism by promoting methods for indigenous dissemination of knowledge (McGregor,

2004; Wyatt, 2008)?

To start to address these questions, I will begin by comparing and contrasting the

relationships of the United States of America, (U.S.A), and Canada with their respective Native

American populations, the Confederated Salish & Kootenai Tribes, and the Ktunaxa tribe, of

British Columbia. Addressing the ecological contexts in which these groups adapted to and

formed within, as a means to accentuate cultural history, I will note key areas where

socio­cultural barriers have been formed between these local cultures and these nation states.

Using the Tribal Self­Governance Act, (TSGA), of the USA and Aboriginal Laws, under Section

35, Constitution Act, 1982, (S35CA) of Canada to reveal critical areas where governance has

been made effective, hindered, or allows for further exploitation (Cornell, 2006; Wyatt, 2008,

CASTRO?). I will parallel these laws and how they effect with their indigenous counterparts

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Ordinance 79A relating to the CS&KT and the Qat Muk relating to the Ktunaxa. This will accent

how divergent laws of colonialism has affected the co­management within these groups. Finally,

utilizing works of Deborah McGregor and Carlos Garcia, I will respectfully attempt to define

traditional and ecological knowledge. In doing so, this paper will stress the barriers which have

led to contemporary issues with co­management. Analysis of these works will allow for a

holistic, or multidisciplinary, perspective on incorporation of traditional knowledge in aboriginal

forestry, scientific knowledge, and its significance for cultural and biological survival in relation

to natural resources co­management, e. g. of Salvelinus confluentus (bull trout) and Ursus arctos

(Grizzly Bear).

The 1994 TSGA, provided a means for the federal government to transfer authority from

itself to Native American tribes in matters of management of federal lands, most of which

contain reservations. Native American tribes are allowed to petition bureaus within the

Department of the Interior for management of programs that are of “special geographical,

historical, or cultural significance to the tribes.” The TSGA connects tribal self determination

policy and federal land management. It has the potential to alter federal/tribal relationships and

transform institutions which are responsible for public land management and the United States’

natural resources.

TSGA amends the 1975 Indian Self Determination and Education Assistance Act and

extends it 3 major ways. One, it includes non­Bureau of Indian Affairs programs. Second, it

expands coverage from programs that are exclusively for the benefit of Native Americans,

because of their status as Native Americans, to other programs which are significant to the tribes.

Third, it includes options for management of federal land and natural resources. Legal scholars

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have suggested that the TSGA represents a significant step toward the co­management of

protected areas in the United States, even referring to the TSGA’s potential for integrating tribal

cultural values, traditional ecological knowledge, and Native American management practices

into public land management as “profound.”

The TSGA expanded the avenues available for tribes to participate in public land

management in two ways. First, it establishes a government­to­government negotiation process

that obligates agencies to negotiate with tribes. Johnson and Hamilton write:

In the past, Bureaus other than BIA refused to cooperate with tribes, but their Cooperation is now compelled. It was the intent of the Committees of jurisdiction that any division or agency of the Interior Department on or near the reservation were negotiate items for self­governance tribes. The Secretary is mandated by Section 4030(b)(2) to sit down with tribes on these matters.

The second way that the TSGA expands tribes’ ability to manage public land is by

allowing the tribes to exercise congressionally delegated federal authority through Annual

Funding Agreements. The TSGA allows for the delegation of authority over federal programs

and federal land for the first time. Tribes are sovereign political entities that retain inherent

sovereign power within their districts, however, TSGA, may extend the extra­territorial

dimensions of tribal sovereignty, by strengthening the ability of the tribes to control and

participate in managing programs and functions that impact tribal sovereignty located outside of

reservation jurisdiction.

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This increased participation of Native Americans in the United States government did not

come easily. Using the National Park Service, as an example of the past United States’ relations

with Native American’s, tribes were either forced or questionably consented to being displaced

off of traditional communal property and dissolving social institutions. These effects of

conservation have been an issue plaguing indigenous rights and sovereignty for decades globally

(KARIEVA?). As a result, national parks or refuges often border sacred sites, sacred geography,

and places of ongoing traditional uses (hunting & gathering). This can be seen in the exemplar of

the Confederated Salish & Kootenai Tribes, of Pablo, Montana, where their Tribal Wilderness

area abuts the Mission Mountains Wilderness area (Flathead Cultural Committee, 1993). When

the national parks were created, there was a desire to create an accessible tourist attraction made

to look as an uninhabited wilderness or “pristine” wilderness, e. g. the Pikuni Blackfeet’s forced

removal during Glacier National Park’s creation. As shown below.

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Conservation efforts by nations and environmental non­governmental organizations

(ENGOs) have often resulted in the exclusion of tribal members from their land, prohibition of

traditional tribal land uses within park units, and the extinguishment of Native American title and

rights altogether (Spence, 1999). These foundations laid contact/incursion by the United States,

and Canada during, and prior to, the 1800s led to sociocultural barriers from the treaty making

between the two nations and their indigenous populations. These barriers included, but were not

limited to language, border recognition, concepts of land use, access knowledge, resources, and

racism.

These can also be denuded through examination of the Qat’Muk written by the Ktunaxa,

and Ordinance 79A by the CS&KT to examine their effectiveness in providing channels for

effective co­management (Bigcrane, 2014). Most co­management seems to be triballly initiated.

This makes an evaluator question why. Is it because the tribes are more interested in

co­managing and the governments are not? Does this demonstrate an idea of superiority over the

other? The government never approaches first and then activates a plan. They start to activate a

plan and then let the Native American tribes contact them. Are they trying to do want they want

without input from them, ie sneak it past. Both parties should reach out to each other in order for

there to be mutual respect and understanding.

Co­management agreements among multiple jurisdictional frameworks and stakeholders

offers promising options for dealing with natural resource conflicts via inclusive

decision­making and equitable socio­cultural engagement. However, experience shows that

co­management regimes can set into motion new conflicts or cause old ones to escalate. The

resulting effects may not be power sharing, but a strengthening of the state's control over policy.

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Contrary to embellishing local empowerment, strategies may further marginalize communities

and resources. Divergent interest of state agencies and tribal planning and implementing arise

and cause co­management arrangements to become harmful to the group lacking resources to

employ and enforce legislation(Garcia?, Castro?). These facets highlight the cultural, political,

and legal obstacles encountered by indigenous and other rural communities in trying to negotiate

co­management arrangements with larger, more powerful nation states. Exploring conflicts that

arise in co­management regimes in decision making is very limited due to the lack or prevention

of inclusion by the nation states.

Lack of respect on the federal government’s part can be seen by Canadian involvement in

the Jumbo Glacier Resort issue. The Jumbo Glacier is a proposed year round ski resort in the

Jumbo Valley, 50km Southwest of Invermere British Columbia. The ~2,600 beds, gondolas, and

shops have been proposed at the head waters of the Jumbo River and Horsethief Creek, both

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tributaries for the Columbia River, and on the glaciers of the valley. This location is critical for

several reasons, namely as: habitat connectivity for grizzly, clean drinking water, and the sacred

geography of the Ktunaxa. See the area below:

Y2Y, Cabinet­Purcell. (2014)

According to the gene assays compiled by (conservation/ wildlife biologist) Dr. M.

Proctor (2005; 2010), the grizzly bear population unit for the region is already under stress due to

human use and the road on the valley bottom. His results suggest that there has been, and will be

further, genetic depression and reduced gene flow caused by partial isolation of this subgroup of

U. arctos from the larger meta­populations. He also notes that the Cabinet­Purcell Mountain

population is a key for linkage between the United States and Canadian U. arctos populations. In

a personal correspondence written by Dr. Proctor to the provincial government he warned that

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further development, the Jumbo Glacier Resort Ltd., would contradict, and undermine efforts to

provincial and federal efforts to resort U. arctos populations.

This is directly in contrast to the beliefs of the Native American tribe of this region. They

have a deep respect and affinity for the grizzly bear and desire to have it protected, as stated

below:

We, the Ktunaxa have lived in our territory since time immemorial and have a deep spiritual connection to the animal world and, in particular, to the grizzly bear. Qat’Muk is a very special place where Klawla Tuklulakis, the Grizzly Bear Spirit, was born, goes to heal itself, and returns to the spirit world. The Grizzly Bear Spirit is an important source of guidance, strength, protection and spirituality for the Ktunaxa. Qat’Muk’s importance for the Grizzly Bear Spirit is inextricably interlinked with its importance for living grizzly bears now and in the future. The Ktunaxa have a stewardship obligation and duty to the Grizzly Bear Spirit and Qat’Muk. … Affirms that the United Nations Declaration on the Rights of Indigenous Peoples supports the Ktunaxa Nation’s right to: (a) manifest, practice, develop and teach our spiritual and religious traditions, customs and ceremonies and to maintain, protect, and have access in privacy to our religious and cultural sites[Article 12]; and (b) maintain and strengthen our distinctive spiritual relationship with our traditionally owned or otherwise occupied and used lands, territories, waters and other resources and to uphold our responsibilities to future generations in this regard [Article 25]...

“Qat’Muk Declaration” (15/11/2010) The Canadian government has ignored these exhortations and allowed the resorts plans to

be completed lacking proper environmental impact assessments. In allowing the project plans to

be drawn up and base foundations built, the Government and Jumbo Glacier Resort Ltd failed to

address Aboriginal Title possessed by the Ktunaxa at the time. These cross serious lines of trust

and respect, by neglecting consultation of the tribe. The Canadian government chose to repeat a

long standing colonialist framework of cooperation, and in doing so completely removed the

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tribes legal rights to have a position of decision­making in its outcome. The Federal and

Provincial governments also failed to acknowledge the cultural significance of the grizzly bear,

and its spiritual reciprocity in the tribes worldview.

The Canadian government needs to set a new a precedent in relation with the Ktunaxa in

order to protect their natural resources in Jumbo Valley. The Ktunaxa stated that the Qat’Muk, or

Jumbo Valley, is an important part of their culture and heritage. Their ideals should be respected

along with the realization that this is part of the heritage of the EuroAmerican Canadians and that

they should think about the impact of development on this pristine wilderness area.

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In the United States, the CS&KT have been working for years on the restoration and

revitalization of the Flathead culture in the Glacier National Park area. One example of this

effective co management was the return of bull trout, S. confluentus, to the Jocko River. The

project has two key facets allowing for co­management, first the integration of the tribal history

into the local school systems, and the second the physical restoration of the Jocko itself. These

two facets break down into two subcategories: 1) assessment, 2) protection, healthy section asa

reference, 3) passive restoration, 4) active restoration, when all else failed, use of historic

reference for river banks. These areas of co­management were made accessible via the TSGA.

Funds obtained for this project were provided by British Petroleum, Atlantic Richfield Company,

due to the tribes successful litigation to restore the Superfund site caused by the Butte mines

1908 flooding and contamination of the tributaries of the Silver Bow Creek drainage. The

projects successful co­management was also facilitated via the Tribes Jocko River Master Plan

for the restoration, which was a cooperative effort with Montana Fish, Wildlife, & Parks. The

tribes land tenure, and their archaeological remains have suggested that there was more extensive

use of bull trout as a food source and a cultural symbol. Land Tenure is a big deal for contention

between tribes and their presiding nation states.

In Canada, the native peoples are subject to Aboriginal Laws, under Section 35,

Constitution Act, 1982. It covers a spectrum of rights which include: marriage, adoption, to

site­specific exercise of harvesting or other rights where no claim has been made to the land

itself, to assertions to an Aboriginal title to the land. Aboriginal Title, is the common law

doctrine which explains the land rights of indigenous peoples. It explains that customary tenure

persists after the assumption of sovereignty under settler colonialism. The requirements for the

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proof of title for the recognition of aboriginal title, the content of aboriginal title, the methods of

extinguishing aboriginal title, and the availability of compensation in the case of extinguishment

vary greatly by provincial jurisdiction. Nearly all jurisdictions are in agreement that aboriginal

title is inalienable, except to the national government, and that it may be held either individually

or collectively.

Quite recently, the Tsilhqot’in Nation v. Bristish Columbia Aboriginal Law were

completed to settle disputes over logging in British Columbia on, “Whether Crown incursions on

Aboriginal interest justified under s. 35 Constitution Act, 1982 framework — Forest Act.”

(Millen, 2013)

The Supreme Court of Canada reviewed the obligations of the Crown government owed

to cases involving Aboriginal Law prior to and after formation of treaties which have been

established. The majority of the case focused on whether the provincial ruling was faulty

according to S35CA in its decision on the consultation and accommodation of the tribe based on

intensity and exclusivity of occupancy, including the proof required to validate that occupation.

For confirmation that: the government did meet its requirements to entertain the tribes needs; that

the objective of the consultation was substantial; and that, the governments guardianship of the

tribe(s) in question met the standards of S35CA. This ruling that the Crown did not meet its

mandated requirements ultimately translates a precedent for future government consultation in

all matter with tribes where aboriginal title comes into question and that they must not infringe

upon the tribes well­being, and that the government may not benefit while tribes are debilitated.

For rights, other than the Aboriginal title, the Supreme Court of Canada holds that the

claimant must demonstrate that the right was integral to their indigenous societies and exercised

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at the time of the first contact with Europeans. While these may now be practiced in a modern

way, practices that arose from a European influence are not protected. This paradox is often

expressed in the commercial trade of furs and fish, which the courts have seen as a product of

European contact rather than integral to the Aboriginal peoples prior to that contact.

No Aboriginal right is absolute, even though it is constitutionally protected. Fishing

rights are not exclusive to the Aboriginal people and they may be regulated by other

governments. Aboriginal titles may give rise to an exclusive right but societal purposes, such as

economic development or power generation may interfere with that right. Historically,

Aboriginal land rights have been extinguished by land treaties or land claims rather than

legislation. At the present time, there is no form of self government of the Aboriginal people.

The inclusion of S35CA is supposed to signal a new era of political and judicial opinion

on the question of Aboriginal rights. The Guerin (1984) and Sparrow (1990) decisions of the

Supreme Court of Canada created the duty of the Crown to act as a fiduciary in its dealings with

Canada’s Native peoples and justify its conduct when protected rights are infringed upon or

interfered with. The Sparrow decision stated that the court would not set limits on the types of

rights that could be categorized as Aboriginal rights and that the court should be flexible in the

manner in which was sensitive to the Aboriginal perspective, however, it would not protect any

rights that were extinguished prior to the date when the Constitution Act came into effect.

According to former Special Rapporteur on the Rights of Indigenous Peoples to the

United Nations Permanent Forum on Indigenous Issues, James Anaya ­ active from May 2008 to

May 2014 ­ completed a report on the human rights situation of indigenous peoples in Canada

which is, at its best terms, tense. Based on his compiled research gathered from various sources,

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including a visit to Canada from 7 to 15 October 2013, a follow up visit in 2004 to the U. N.,

prior to Canadian recognition of a voluntary agreement with the U. N. to increase the welfare of

Indigenous people, represented negative relationships between indigenous groups. These

relationships are governed by a well­developed legal framework via a number of policy

initiatives that in many respects are meant to be protective of indigenous peoples’ rights. Yet,

despite these positive steps, daunting challenges remain.

His report highlighted that the well­being gap between aboriginal and non­aboriginal

people in Canada has not narrowed, treaty and aboriginals claims remain persistently unresolved,

indigenous women and girls remain vulnerable to abuse physically & sexually, and overall there

appear to be high levels of distrust between First Nations and the Federal Government. There is

also a strongly held undertone of racism from the government towards First Nations groups. The

concerns he notes, merit higher priority at all levels within all branches of Government, and

across all departments, a collective action against discrimination via accommodation, yet not

assimilation of cultural groups.

A firm basis of understanding must be formed and effective partnerships must be

established between the two groups, if future cohesion is to become a viable concept. These

partnerships must include a paradigm shift in power, allowing First Nations to have the final say

in decision­making, along with the majority of actions being completed through their own

institutions and organizations. It is paramount for both the Federal and provincial governments to

aspire to, and attain goals based on respect of the S35CA, treaties ­ both extant and imminent,

and international statutes. In reviewing the sociocultural barriers that impede and promote

co­management, on both sides of the border, the signs are clear as to which nation is playing

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more of an active role in viable frameworks. The United States Tribal Self­Governance Act is a

paramount tool to allow for power to shift back to tribes, and to aid in their successful attempts at

management of their own cultures and natural resources. The Canadian Aboriginal Laws, under

Section 35, Constitution Act, 1982 are a good groundwork for future efforts of co­management

to coalesce, yet as with many of the issues that affect development on Crown Land, these acts

have been swept under the rug. Canadian policy, needs to be more firm in promotion of First

Nation Rights as well as coming to terms with the ruling of the Tsilhqot’in Nation v. Bristish

Columbia. There must be reforms to the legislative bodies provincially and federally to honestly

and respectfully, consult and administer Aboriginal Title and Rights that will not be exploitative.

Futhermore, the Glacier­Wateron Lakes International Peace Park was set up in 1932 to

preserve that area for future generations for all nationalities. It was the first park set up

internationally to preserve man’s natural and historical world. It is a World Heritage Unesco Site

with some of the largest areas of undeveloped land on the North American continent. The park

contains a distinctive climate with a mountain to prairie interface with a triocean hydrographical

divide .There is a sudden transition of mountain to prairie without foothills. This is a pivotal spot

in the Western Cordillera of North America with an evolution of plant and ecological

communities seen nowhere else in the world. Every effort has to be made to preserve the culture,

history, plant and animal life of the area. With effective co management of this area, it has been

illustrated that the land can be restored to some of its pre EuroAmerican invasion state, ie, CSK

& T restoration of the bull trout, but it has also shown how it does not have effective

comanagement with the development of Ktunaxa heritage sites with the potential for the loss of

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the grizzly bear. Comanagement has to be effective and cooperative on both sides of the border

with all peoples in order to save the park.

Since this was the first international park, it can also be the first park where cooperative

management can restore some of it to its original state. The name, itself, was to signify

cooperation between peoples, ie “peace.” It is the responsibility of future generations to carry

through with that plan and manage the park effectively, maintaining its natural beauty, plant and

animal life and history.

Works Cited

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1) Kirkby, B. 2011, February 18). Exploring the wild frontiers of the Jumbo Valley. The Globe & Mail. 2) Ktunaxa Nation Council. ( Nov, 15 2010). Qat’muk Declaration. 3) Hume, M. (21/03/2012). Shuswamp band sees benefits in Jumbo Glacier Ski Resort. The Globe & Mail. 4) MacDonald, S. (05/06/2014). Ktunaxa to appeal Jumbo Decision. Cranbrook Daily Townsman. 5) Devin, S. & Doberstein, B. (2004). Traditional Ecological Knowledge in Parks Management: A Canadian perspective. Environments, 31(2), 47­69. 6) Gahr, T. L. (2013) The origins of Culture: An Ethnographic Exploration of the Ktunaxa Creation Stories. ( MA Thesis). Royal Roads University. 7) Proctor, M. (07/2010). New Research Reguarding grizzly bears in the Purcell and Selkirk Mts. And the Jumbo Glacier Report proposal. 8) Proctor, M., McLellan, B. Strobeck, C., & Barclay, R. M. R. (2005). Genetic Analysis reveals demographic fragmentation of grizzly bears yielding vulnerability of small populations. 9) Houde, N. (2007). The Six Faces of Traditional Ecological knowledge: Challenges and opportunities for Canadian co­management arrangements, Ecological & Society, 12(2) 34. 10) Blackburn, C. (2005). Searching for Guarantees in the midst of Uncertainty: Negotiating Aboriginal Rights and Title in British Columbia. American Anthropologist, 107(4). 586­596. 11) Kareiva, P., Marvier, M., Lalasz, R.(2012). Conservation in the Anthropocene: Beyond Solitude and Fragility. Breakthrough Institute, Winter. 12) Dodge, Jim (1981). Living by life: Some Bioregional Theory and Practice. CoEvolution Quarterly, Winter 6­12. 13) Flathead Culture Committee. (1993). A Brief history of the Flathead Tribes. 14) Kimmerer, R. (2011). Restoration & Reciprocity: The Contributions of Traditional Ecological Knowledge. Human Dimensions of Ecological Restoration: Integrating Science, Nature, and Culture. (Eds. Egan, D., Hjerpe, E. E., and Abrams, J.) Washington: Island Press. 257­276. 15) Smith, T. (2010) Introduction, Ch 1: Tribal World of the Northern Rockies, & Ch 6: Resistance & Renewal. A History of Bull Trout & the Salish & Pend d’Oreille People. Natural Resources Department, Confederated Salish & Kootenai Tribes. Lincoln: University of Nebraska Press. 16) Watson, A. (2010). Traditional Wisdom: Protecting relationships with wilderness as a cultural landscape. Ecology & Society, 16(1), 36. 17) Hansen, G. (2007). Contemporary wilderness and American Indian Cultures. International Journal of Wilderness, 13(2), 18­ 20. 18) Confederated Salish & Kootenai Tribes. (2005). Mission Mountain Tribal Wilderness Case Study. Native Lands & Wilderness Council.

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19) National Outdoor Leadership School. (2006). Federal Land Management. Wilderness Ethics: Valuing and Managing Wild Places. Mechanicsburg, Pa. Stackpole Cooks. 87­97. 20) Spence, M. D. (1999). Chapter 5: Backbone of the World & Ch 6: Crowning the Continent. Dispossessing the Wilderness: Indian removal & the making of the National Parks. Oxford: Oxford University Press. 71­100. 21) Nadasdy, P. (08/05/2003). Reevaluating the o­Management Success Story. 22) National Geographic Topographic Map of the Mission Mountian Wilderness. The Armchair Explorer. http://www.thearmchairexplorer.com/montana/m­images/blm­sites/map­mission­mountains01.jpg 23) Major Land Ownership in the Flathead Drainage. Mobile LoGIStics Mapping, 2010. http://www.flatheadwatershed.org/land/images/fig6_1_Ownership_02_2010823_CSKT_PNG_XP_FULL.jpg 24) Ktunaxa Nation rally for grizzly bears, (2012). Conservation Northwest. http://www.conservationnw.org/what­we­do/british­columbia/grizzly­bears­in­the­purcells­at­jumbo­valley 25) Cabinet­Purcell Mountain Corridor. (2014) Yellowstone to Yukon Initiative. http://y2y.net/data/1/rec­imgs/63­new­website­maps­cp­web­version.jpg 26) Recommended Changes to Lake County Density Map (reflecting Tribal Cultural and Natural Resource Concerns). (2005) http://www.cskt.org/images/tld/landuse_map1.gif Confederated Salish & Kootenai Tribes. 27) Jumbo Glacier Ski Resort Approved. (2012). http://assets.vancitybuzz.com/wp­content/uploads/2012/03/Jumbo­Glacier­Resort­Mountains­e1332273020692.png?d03c45. Vancity Buzz.

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