Law, College of


Date of this Version

Winter 2000


Published in Natural Resources & Environment (NR&E), the quarterly magazine published by the Section of Environment, Energy, and Resources of the American Bar Association. Copyright 2000 Sandra Zellmer.


American Indian nations successfully manage habitat for wildlife species on reservation lands through tribal law and through traditional cultural practices. Beyond reservation boundaries, many tribes are involved in managing wildlife habitat through cooperative management agreements with federal and state agencies. Tribes do this because wildlife is important to them for cultural, economic and religious reasons, not because they are required to do so by the Endangered Species Act (ESA), 16 U.S.C. $§ 1531-1544. Nevertheless, the ESA looms over Indian Country like the sword of Damocles: While the Act contributes to the conservation of tribal wildlife resources by imposing federal penalties on those who harm listed species, at the same time it may severely limit prospects for the development of reservation resources. In particular, the designation of critical habitat on Indian lands superimposes federal prerogatives on tribal management decisions, undermining the sovereign authority of tribal governments over trust resources, while providing relatively minimal protection for the species.

In 1997, the Secretaries of the Departments of the Interior and Commerce issued Secretarial Order 3206 on American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (Secretarial Order) r9endspp/esatribe.html . The Secretarial Order provides a vehicle for turning the ESA sword into a tool for cooperative approaches that equitably distribute the conservation burdens among tribal, federal, state and private interests.

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