On the evening of Thursday, Sept. 9, in a ballroom at Ruby’s Inn on Reserve Street, a Montana citizen stood at a microphone before some 60 of his peers and asked a panel of eight experts why there had been no public participation in negotiations between the federal Fish and Wildlife Service (FWS) and the Confederated Salish and Kootenai Tribes (CSKT) to delegate duties at the National Bison Range near Moiese to the tribes.
The panel—four representing the CSKT, four representing FWS—was politely flummoxed, and replied in moderate tones with the information that the state was then, as it is now, in the midst of a 90-day public comment period, and that the speaker was in fact addressing a panel convened precisely for the purpose of answering the public’s questions about the latest draft agreement between the feds and the tribes.
The question served, if nothing else, to point out the necessity of the evening’s Q & A; the negotiations are complex, and the room was not lacking in innuendo and ignorance.
At issue is a one-year Annual Funding Agreement (AFA) between Washington and the Salish-Kootenai, and the details thereof. But of more concern, to some, is the acknowledged fact that this particular AFA is likely to set important precedent—due to its unprecedented scope—for a laundry list of 41 national refuges, 34 national parks and 15 federal water projects currently identified as negotiable with qualified tribes under the Tribal Self-Governance Program, including public lands from the Arctic National Wildlife Refuge to parts of Glacier National Park. The Bison Range draft agreement, if enacted, will become only the second such agreement in the United States, after a limited AFA between the Council of Athabascan Tribal Governments (CATG) and FWS allowing the CATG to perform some of the federal government’s duties on Alaska’s Yukon Flats National Wildlife Refuge during 2004–2005.
Several members of the public asked relevant questions or made statements of support and testimony for some point or another. Many others struggled to cast their aspersions as questions to avoid a no-rhetorical-questions-will-be-answered rule of order while still suggesting some sort of conspiracy at work; some opponents have claimed that the feds actually want the Range to fall out of federal jurisdiction and into mercenary hands for inappropriate development of some sort or another.
Detractors fell mainly into two categories: those who meant to imply that the tribes can’t or won’t do the work as well as it’s currently being done, and those who meant to imply that this AFA can only lead to more AFAs, thus more tribal control, with unnamed but presumably dire consequences.
One questioner wanted to know what specific language was in place to provide for “punishment” of tribal employees should their work be judged not up to snuff.
Several large themes have emerged from, ultimately, 10 years of negotiations. Most pertinently, Congress in 1994 passed a law allowing tribes to negotiate for the performance of non-“inherently federal” duties on federal lands, if they can establish a special geographic, historical or cultural relationship to those lands.
Congress also passed the law establishing the National Wildlife Refuge System and requiring that its management remain inalterably under the control of FWS. Negotiations with the tribal government have largely revolved around the complicated legal dance of ceding some duties and responsibilities to the tribes while retaining ultimate federal responsibility, accountability and control over all of them.
One questioner wanted to know why she’d never had an opportunity to vote on whether she thought such an arrangement was a good idea. The questioner was informed, apparently for the first time, that Congress votes for laws and citizens vote for Congress.
Originally, the Salish-Kootenai had declared their intention to take over management of the Bison Range lock, stock and barrel. That desire, while stirring up fear of an Indian toehold in certain quarters, ran headlong and fruitless into unmistakable federal law.
The document now up for public comment transfers the equivalent of 11 (out of 18) Bison Range positions to the tribes. The document also provides for termination of the AFA in the case of a federal manager’s determination of “imminent jeopardy” to the agency’s wildlife-preservation mission. The current AFA hardly describes a handover of control. As one panelist stressed—insultingly, if unintentionally so—these are jobs (fire management, visitor services and wildlife biology, among others) that “anyone off the street can do and the public wouldn’t know the difference.”
The draft agreement is, as Tribal Chairman Fred Matt acknowledged Thursday night, less than what the tribes wanted, “but we’ll take what we can get.”
FWS panelists repeatedly praised Matt’s “sense of humor.”
Fear of change aside, the audience’s main targets were two largely technical points in the AFA:
1. Given the Range’s reliance on volunteer labor, especially during the annual fall round-up, what would be the liability-insurance status of CSKT volunteers under federal and/or tribal law? There were two diametrically differing opinions from the panel on that question—that CSKT volunteers would be covered under existing federal statute, and that they would not. That issue remains to be settled.
2. How much will it cost (i.e. how much more will it cost?). That answer also had no finished answer, in part because the agreement delineates the performance of “activities,” which may not correspond directly with established salaries; in part because the variable relocation/severance costs of displacing FWS workers cannot be calculated prior to severance/relocation; and in part because implementation of the AFA, in addition to the negotiation of it, will carry uncalculated start-up costs.
The National Bison Range will host an open house on Wednesday, Sept. 22, from 8 a.m. to 4 p.m., providing a further opportunity for public discussion of the proposed AFA. The current draft of the AFA is available at http://mountain-prairie.fws.gov/cskt-fws-negotiation/. Public comments may be sent to firstname.lastname@example.org or to the Bison Range at 132 Bison Range Road, Moiese, Mont., 59824. The public comment period ends Tuesday, Oct. 12, after which FWS will consider said comments and if, after any revisions, FWS and the CSKT agree on the final language of the agreement, it will be sent to Congress, where, after a 90-day review period, it will, if not opposed there, pass into law.