“We really have to get creative and equally value all of the interests of the stakeholders, use cooperative agreements and MOUs, and new innovative partnerships in order to succeed,” says Amy Cordalis.
Amy Cordalis is a fisherwoman, attorney, mother, and member of the Yurok Tribe, the largest federally recognized Tribe in California. From 2014-2016, she was General Counsel for the Tribe, the first woman and first Yurok tribal member to serve in that position. She is also the principal of the Ridges to Riffles Conservation Fund, a non-profit fund representing Native American tribes in natural and cultural resource matters.
In the spring of 2021, President Biden announced the country’s first national conservation goal of conserving 30% of the nation’s land and water by 2023, and Tribal lands will likely play a key role in meeting this goal.
At the 2021 Yosemite Environmental Law Conference, Amy Cordalis spoke of how to engage and work with tribal governments, the laws that can help advance those partnerships, and how the political status of tribes help meet those goals, highlighting some examples from Yurok Country.
After greeting attendees in her native language, Amy Cordalis began by saying that the task is to get creative and develop new ways to solve problems.
“My dad always says, ‘you can’t stick your hand in the mousetrap over and over and over again and expect a different outcome,’ and so today, one of my presentation points is that we have to look at new ways of doing things,” she said. “We need to look at new and innovative, creative, political and legal partnerships that involve a wide range of stakeholders that all have interests in the landscape. When you combine those interests and leverage their collective legal rights, along with resources, that’s a really great model of how we can accomplish these National Conservation goals.”
Ms. Cordalis then told a story from the Miwok people, the traditional people of the Yosemite Valley, a story about a Mama Bear and her two cubs.
The story begins with a Mama bear and her two little bear cubs in Yosemite Valley. They are playing on the Merced River, and the mama bear says to the bear cubs, ‘Go out and fish; try to find some steelhead.’ But the bear cubs are young and rambunctious, and so they jumped in the river and scared all the steelhead out of the river. So mama bear says, ‘Go out and try to find some raspberries.’
So the bear cubs get out of the water and start following the river. The cubs are playing and rolling around, and before long, they are far away from the mama bear. They find some raspberries, eat them, and become tired. So they found a rock next to the river, climbed upon it, and with the sun warming them, they fell asleep. While they were sleeping, the rock started to grow, reaching higher and higher to the sun.
In the meantime, mama bear realizes her cubs are gone, so she starts calling them, but they don’t respond. Mama bear starts looking around and asks the deer, have you seen my cubs? The deer says no, but offers to help mama bear, so off they go, searching for the cubs. Mama bear asks other animals if they have seen the cubs, but they hadn’t, but offer their help.
Red Tail Hawk has been flying in the valley, and he sees that the rock has changed and grown so high it is now in the clouds. So he passes close to the rock and sees the bear cubs high in the clouds, sleeping on the rock. And so he flies down, looking for the mama bear, but he doesn’t see her.
A couple of days go by, the animals continue to look, but they can’t find the cubs. Mama bear is full of grief. So she gathers all the animals together, and they all go looking in the valley, and eventually, they come to the rock and notice that the rock has changed; it’s now in the clouds.
Right around this time, Red Tail Hawk comes back and says, ‘Your cubs are on top of the rock.’ So Mama Bear tries to climb the rock and falls; she’s too big. Mountain Lion tries and gets pretty far, but not far enough. Deer tries, but no luck. Badger, Fox – no one can climb the rock. Mama Bear is so sad.
Along comes this one little inchworm, who says to Mama Bear, ‘I will help you.’ But the other creatures say, ‘You’re too small; there’s nothing you can do.’ But Mama Bear says, “I welcome any help.’
So little by little, the inchworm climbed the rock, leaving a silk string along the path to mark her path up the rock. This takes a few days, and eventually, she makes it to the top of the rock and saves the little bear cubs because she is able to bring them down.
Mama Bear and the other animals were so happy; they named the rock Tu-tok-a-nu-la after the inchworm. That rock is now known as El Capitan.
Ms. Cordalis said she began with this story because it provides some good lessons. The first is that climate change happens; the landscape changes, which could cause harm and problems to life on Earth, so creatures must adapt and mitigate. The second is that new and unexpected partnerships and ways of thinking can lead to successful outcomes. So she told this story to open up minds to thinking creatively about moving forward in new ways and with new partnerships.
A brief overview of the basics of Tribal law and Tribal governments
From the beginning to the mid-1800s, three cases from the Supreme Court known as the Marshall Trilogies laid the foundation for some of the fundamental principles that apply to Indian Tribes today.
“I will say that these cases are full of racism,” said Ms. Cordalis. “They are full of this notion that Tribes were savages and that Indian people needed to be saved. So there are a lot of things that are not good in these cases. But there are also some gems, some things that I think are still very important and still very relevant. And that’s why I pulled them in here.”
In the first case, Johnson v. M’Intosh, the court relied on international legal concepts of the time to essentially create the trust responsibility between the tribes and the federal government in which the US has a duty to protect the interests of tribes.
The second case, Cherokee Nation v. Georgia, continues articulating the trust responsibility, also acknowledging that tribes have inherent sovereignty.
“This is important,” Ms. Cordalis pointed out. “Inherent sovereignty essentially means that tribal sovereignty stems from their own status of being government, and not from the United States. Tribal sovereignty is a separate independent source from the United States sovereignty; it is inherent in the status that we had as full-on government at the time of European contact.”
What inherent sovereignty means is the ability to make laws and be governed by them; this is very powerful, she noted. It means that each federally recognized Tribe can make laws and be governed by them.
The third case, Worcester v. Georgia, talks about how, in the exercise of the government-to-government relationship and its trust responsibility, the federal government has an obligation to protect tribal resources and property and act in the interests of tribal people their property.
The slide lists the fundamental principles for appropriately engaging tribal governments in conservation efforts and also helps to leverage the legal rights of tribes to use those rights as powerful tools to create the incentive to protect environmental resources.
Ms. Cordalis noted that every agency within the federal government has a consultation policy, partly because the trust responsibility applies to every agency within the federal government, not just the Bureau of Indian Affairs or the Department of Interior. So agencies should have an articulated policy about how they will consult with Tribes; it’s also important that tribes have their own consultation policy that outlines how they want to engage with the federal government.
The notion of inherent tribal sovereignty, the trust responsibility of the federal government, and the political relationship between the Tribes and the federal government have been articulated in various statutes, such as the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, and many more. This essentially provides the tribes with a regulatory role in advancing the statutory goals within all of those statutes.
In California, there is the California Endangered Species Act and AB 52. “With AB 52, I use the word beautiful in how it adopts a tribal natural resource as an environmental harm,” said Ms. Cordalis. “So if there is a potential impact to a Tribe’s cultural, natural resource, AB 52 requires that that harm be considered and given the same status as an environmental harm. In the end, that’s, I think, really a powerful tool and a great development in California law.”
Treaties are opportunities to help advance the nation’s conservation goals, Ms. Cordalis said. She acknowledged that treaties with Tribes have been broken and promises have not been kept. “However, I think we have a big opportunity to heal by enforcing these treaties. I think these treaties with the tribes have tremendous opportunities to help advance the nation’s conservation goals as well.”
Treaties are the supreme law of the land, she pointed out, and so when there are conflicts with other laws, such as a federal statute, a state-based law, or even a contractual right, the treaty is going to control, she said.
“I think that becomes incredibly important as we’re grappling with conflicting interests and conflicting legal obligations, the treaty rights are always going to control, and that’s what makes them so powerful,” she said.
Ms. Cordalis pointed out that if the Tribe has a treaty, and the reservation is within the Tribe’s aboriginal territory (meaning their original lands), the treaty rights are a reservation of the Tribe’s aboriginal rights; they are not a grant of rights from the United States.
“That goes back to the fundamental source of sovereignty,” said Ms. Cordalis. “One court articulated it as ‘domestic dependent nations.’ They are nations within the nation. So when they entered into these treaty negotiations, and if they are on their aboriginal territory, they were reserving their own rights. And that’s important.”
The treaties vested implied federally reserved rights for the Tribe, which has become incredibly important, especially for advancing and protecting tribal lifeways. Fishing is a good example; treaties were for preserving their way of life, so they needed to have hunting, fishing, and water rights – even easement rights.
In some treaties, there are reservations of rights off the reservation, and courts have treated those essentially as an easement to access and cross overland.
“A good example is the Stevenson treaties with some of the Washington tribes,” Ms. Cordalis said. “There’s a provision for the tribes to access their usual and accustomed fishing locations. So those were off of the reservation, and those provisions have essentially been interpreted to require the access point, but also required that there is decent habitat, water, and fish to catch, because what good is the right if there isn’t any fish or whatever species that is dependent upon exercising that right?”
“I started talking about how the treaties haven’t been implemented and haven’t been enforced to their fullest ability. And I hope that as we think about the next era of natural resource management and as we rethink our own relationship with the environment, that we can embrace the treaties and embrace the power that they have to help us advance and accomplish these national conservation goals.”
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The United Nations Declaration on the Rights of Indigenous Peoples establishes a universal framework of minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world. It elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples. The United States has adopted the UNDRIP but is still working on implementation.
“If we could in the future incorporate this type of a standard into our interactions with Indian tribes, how powerful it would be toward protecting cultural and natural resources and towards advancing conservation goals,” said Ms. Cordalis.
“One of my favorite provisions in there is Article 19, which talks about how the states shall consult and cooperate in good faith with indigenous peoples to obtain their free informed and prior consent,” she said, noting that the slide breaks down the meaning of the different words.
“Consent is important but prior and informed,” she said. “One of the experiences, and Standing Rock and the pipeline comes to mind, but, even despite all of that law that I talked about, tribes are not really being consulted in an adequate way; they’re not being informed in an adequate way. So if we were to take this statement and better incorporate it into our own law, I think we could avoid a lot of these massive, really harmful projects implemented affecting Indian tribes.”
Then, Ms. Cordalis turned to how the Yurok Tribe has used the trust responsibility, treaties, government-to-government consultation, and inherent sovereignty to advance some of the Yurok tribe’s interests and objectives.
The Yurok Reservation is located in Northern California in parts of Del Norte and Humboldt counties on a 44-mile stretch of the Klamath River. The Yurok are one of a very few tribes that have never been removed from their ancestral lands in California.
For the Yurok, the reservation is part of their creation story. “In the creation story, the Creator said to the Yurok people that all of this great land, the water, the ocean, the river – all of it; the animals are here for your benefit. So if you can live in a balance with them and never take more than what you need, you will never want for anything,” she said.
“For a very long time, we lived that way. So within our inherent sovereignty, within our own laws, stemming back from aboriginal times, we have very specific rules that regulate our interaction with the natural environment. Those rules have been incorporated and adopted into our Constitution and our own tribal laws. And one of those fundamental core values is that our interaction with the natural world has to be sustainable. And the way that we are expressing that is by working on developing a restorative economy or a restoration-based economy.”
The Yurok Tribe is working to build back their economy in a way consistent with their cultural values through a couple of different approaches, both on and off the reservation. She pointed out that Tribes have different rights on the reservation and off the reservation. On the reservation, Tribes can make laws and be governed by them; it’s different off the reservation, so the strategies are somewhat different.
On-reservation: Blue Creek Sanctuary
One of their on-reservation projects was a massive land acquisition project where they were able to reacquire about 50,000 acres of land on the eastern side of the reservation. Even though the land was part of the reservation, it was lost to the General Allotment Act and had fallen into the hands of several lumber companies. The area is heavily wooded with redwoods and conifer-pine forest.
“In recovering that land, the tribe has developed very detailed land management plans, which outline what we’re going to do with the land,” said Ms. Cordalis. “We’re essentially making a salmon sanctuary, the Blue Creek Sanctuary, which is critical to the salmon runs of the Klamath River.”
The headwaters and chunks of Blue Creek had been logged, which she said was devastating to the Tribe. “Not only is that land in the Blue Creek watershed critical for salmon runs, it’s also the Tribe’s sacred lands; it’s our religious lands. It’s our High Country, where our people go to pray and gather and so on. It is critically important to us. So we were able to get this land back into tribal ownership and start managing that land to protect it and to advance the salmon objectives there.”
On reservation: Carbon sequestration
Another project the Yurok started on-reservation is a carbon sequestration project. Ms. Cordalis acknowledged the controversy around carbon sequestration projects. Still, for Yurok Tribe, it provided a way to manage their forests to enhance the ecological values while also trying to generate funding to support the management of the work, which she said was critical.
The project came together through partnerships with the state and through philanthropy, and even the logging company. They were able to leverage state grants, federal programs, and relationships with private and non-profit partners to reacquire 60,000 acres of ancestral land with the goal of restoring the landscape by utilizing contemporary forestry practices.
“What we were able to do is to fashion a series of very complex land transactions and funding sources involving tax credits, funding agreements, grants from the state, private donations, federal funding, and pulled that all together to essentially recover this land, and then enhance the ecological advancement of that area.”
Combining protected lands
Ms. Cordalis noted that the Yurok reservation is bordered by the National and State Redwood Parks to the west and the Six Rivers National Forests to the east.
“One of our goals which would provide tremendous ecological benefit is if we can work with the Six Rivers National Forest and the Redwood National and State Parks to develop joint land management plans that then can create a very large wildlife corridor,” she said. “If you can get those three [entities] working together to manage their land, then you have tremendous opportunity to restore habitat.”
However, lumber companies still own lands in the region, so if those lands could get back into tribal ownership or some other protected status, it would be possible to create a modern ecological wilderness corridor.
She noted this is not unique in how other tribal lands are situated across the country; oftentimes, tribal land is next to some other kind of protected land. “So I think having that partnership, using the tribal rights, the political relationships of both the federal government and the tribe, but also bringing in the state, really can help us create massive, widespread restoration for big, comprehensive ecological systems.”
Off-reservation: Klamath Dam removal
In the Klamath Basin, the Yurok are working on one of the largest river restoration and dam removal projects in history, which involves removing four dams on the Klamath River: Copco 1 and Copco 2, JC Boyle, and Iron Gate Dam. Work is progressing towards the removal happening by 2023.
The dam removal effort came about because the licenses for the Klamath Dams issued by the Federal Energy Regulatory Commission (or FERC) expired in the mid-2000s. The relicensing procedure created an opportunity for the Yurok Tribe to participate and express their concerns. The initial proceedings were very active and hotly contested, but the result was that if the dams were going to be relicensed, they would have to be retrofitted with fish ladders to allow fish passage. However, when PacifiCorp, the owner of the dams, did the analysis, the conclusion was that removing the dams was cheaper than retrofitting them with fish ladders. And so that created the opportunity to start talking about dam removal.
That led to an intensive, stakeholder-wide negotiation to figure out how to fashion an agreement that would protect everybody’s interest while allowing these dams to be removed. That effort resulted in the Klamath Hydroelectric Settlement Agreement. There is, of course, much more to the story of how the Klamath Dam removal project has progressed to this point, but due to time limitations, Ms. Cordalis was not able to get into the details.
“I want to highlight that the role of the Tribes in the negotiation and the process has been critical because we’ve been able to leverage our essential, federally reserved fishing and water rights to say to FERC that these dams have caused irreparable harm to our fish and water rights,” she said. “And the only way to repair that harm and to prevent future harm is through removal. And because those rights are the supreme law, they have been very powerful in moving FERC to take those seriously and led to the ultimate consideration of getting to dam removal.”
The other important factor was the exercise of the Consultation Policy. “We have been able to work with FERC and get closer to them through the government-to-government consultation role, and making sure that FERC heard us and understood the implications that the dams have on our natural resources. FERC is a quasi-judicial agency, but even though it has its judicial function, it also has its regulatory and administrative functions. So with that, it has a trust responsibility to protect those resources. So it’s hurt us, and we’ve been heard, which I think is really important.”
The last point was the ability to work with other stakeholders, including PacifiCorps. “In my experience, the corporation changed its posture after Standing Rock happened. I think there was a national awakening to the importance of cultural, natural resources off the reservation, and also that there was the real power behind the tribal governments, behind the water, behind the folks who are interested in and concerned about tribal natural resources, which I think now includes environmentalists as well.”
“There was a shift where all of a sudden, the tribal rights were even more valued. And they were, in some ways, put on equal footing with the business interests or the interests of the states. And through that equal appreciation of all of the various interests in the basin amongst the stakeholders, we were able to then fashion an agreement that puts us sort of in a more equitable position. And then, from there, we’ve been successful in moving this largest dam removal project in history forward.”
In conclusion …
Ms. Cordalis said that cooperative agreements and MOUs are critical because just going to court or relying on purely environmental laws doesn’t work; it’s not going to get us across the finish line when we’re thinking about how we’re going to accomplish national conservation goals.
“We really have to get creative and equally value all of the interests of the stakeholders, use cooperative agreements and MOUs, and new innovative partnerships in order to succeed,” she said. “So, bringing us back to the Miwok story, keep your eye and your heart open to the inchworm because you never know who’s going to come in to save the day and make the coalition work.”
QUESTIONS & ANSWERS
QUESTION: Thank you for recognizing the value of AB 52 and that Tribes now have an important role in the CEQA process after so many years of trying to get a seat at the table. So Tribal consultation is part of AB 52. How do you see AB 52? Is AB 52 potentially a model for other jurisdiction jurisdictions?
Amy Cordalis: “I think AB 52 is fantastic. California is the first state to adopt something like that in its own state law. And I would definitely encourage that to be used as a model throughout the country. This idea of adopting harm to a cultural natural resource as an environmental issue that needs to then be mitigated is a very appropriate way to incorporate the protection of tribal cultural natural resources, both on and off the reservation in the state law.”
QUESTION: About the 18 unratified treaties: I understand that 18 treaties were negotiated in the 19th century with tribes but were not ratified thanks to the California delegation to Congress. Could new treaties be negotiated and ratified that recognized tribal rights?
Amy Cordalis: It’s a shame what happened to those 18 treaties. Actually, my fifth or sixth great auntie or grandmas signed one of the Yurok treaties that were never ratified, so this is a question near and dear to my family’s heart. That would be difficult now because Congress ended the practice of adopting or entering into treaties with tribes in the late 1800s, so that would be a difficult strategy. But it sure would be interesting.”
The host notes that had the 18 treaties been ratified, it would have provided reservations accounting for about 1/7 of California.
QUESTION: Does AB 52 provide any leverage on destructive timber management plans?
Amy Cordalis: “Yes, it does. The state has to have a role in approving those timber management plans, so as long as the state has some kind of role, it could then condition through AB 52 to whatever activity is being approved in the management plan. It also would apply to local governments.”
QUESTION: I totally agree with the notion of more common management approaches between tribes and federal and state land managing agencies. How do you get over agencies’ fear of doing something new or unfamiliar?
Amy Cordalis: “I like really like this question because so often when we are working with federal or state agencies, you get this fear and the fear stems from, this is just my opinion, that a lot of folks don’t understand tribal sovereignty or the trust responsibility or the government to government relationship. And they just haven’t worked with tribes, so they’re trying to be respectful and tread lightly, which creates this fear. But, also, I appreciate that as a federal or state official, you have a lot of people that you are accountable to – the American people, for example. So it is much easier to stay within your wheelhouse, to stay within your existing practices.”
“So one of the reasons I try to do these kinds of presentations and talk about tribal sovereignty, trust responsibility, and consultation is to help spread the word and that core information about who and what and why tribes are. And I think that if folks can get comfortable with that, it can help alleviate that fear.”
“Also, I think we have to really embrace that we’re at a very difficult time on the planet, and we can’t keep continuing the status quo. And so we’re going to have to get creative about how we manage things. That’s why I wanted to share our best practices; because there are already models, and people are already doing this work. And so it helps to attend conferences like this; it helps to talk to other federal agents or state agents working on these kinds of collaborations because they’re happening throughout the country. Bears Ears is another great example. So research those ideas, talk to your colleagues about what they’re up to. And have an open heart; it goes back to our story of having an open heart of being willing to take in these new ideas and these new partners.”
QUESTION: What laws or regulations would you like to see changed? Or do you think it’s simply a matter of current laws being better implemented?
Amy Cordalis: “One thing that’s really on my mind, which I didn’t get to talk much about, is the role of the Bureau of Reclamation in managing watersheds in what I call salmon country. Salmon country is essentially the Pacific Northwest from the Sacramento River all the way up to Alaska. The Klamath was the third-largest salmon-producing river in the whole lower 48 – the Sacramento, the Columbia … we have massive reclamation projects on those rivers that have essentially destroyed salmon runs. We’re on the verge of losing our iconic salmon runs across the whole west. In large part, that’s due to the management of the Bureau of Reclamation essentially prioritizing agricultural diversions over the needs of the ecosystem and a famine and general health. And I know that may sound extreme, but there are laws in place like the Reclamation Act, there are these irrigator contracts. There’s this stem of cases talking about the relationship between the Endangered Species Act and the Reclamation Act and irrigator contracts. And, I think it’s important that as we move forward, we get ourselves more back in balance.
“So right now, even though what I just talked about treaties being the law of the land, they’re sort of on this lower playing field … Overall, perhaps in the past 200 years, those treaty rights have not been valued, they have not been implemented. And as a result, other rights – extractive economies, diversions – agriculture has been sort of valued and prioritized at all costs. So as we move forward, we have to bring things back into balance. I think you could do that by adopting new laws that allow more comprehensive ecosystem-wide management, rather than just looking at, okay, here’s the single species under the Endangered Species Act that needs help, or here’s the Clean Water Act, that’s going to help with water quality. We need laws that can look at an ecosystem as a whole and figure out what it needs to survive.”
“Then we need to equally value all of these different stakeholder needs, and try to adjust our relationship with the natural environment and adjust our management of natural resources to be sustainable. And that does not mean that we have to completely get rid of agriculture or that we have to take out every man in salmon country. It just means we need to look at our practices and make them more sustainable.”