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Published in SOUTH DAKOTA LAW REVIEW Vol. 43 (1998), pp. 381-437.


The conservation of imperiled wildlife species, a fundamental objective of the Endangered Species Act ("ESA"), conflicts, at times, with the United States' responsibilities to promote American Indian rights to govern and develop reservation lands and resources. Critical habitat designation in Indian Country poses a near irreconcilable conflict. Designation effectively "zones" areas within Indian Country for the benefit of a single listed species in accordance with federal -- not tribal -- prerogatives. As such, designation is a direct affront to tribal sovereignty. Designation can severely restrict a tribe's ability not only to govern, but also to conserve and utilize its land, diminishing the reservation's character as the single most important tribal resource. In turn, designation flies in the face of the United States' solemn promises to preserve tribal homelands for the undisturbed use of Indian Nations and to protect tribal sovereignty from external incursions.

Because Indian Country is typically less developed than surrounding private and state lands, it affords an island of suitable habitat in a sea of lands altered by development activities: timber harvesting; road-building; mineral extraction; solid and hazardous waste disposal; and agriculture. Not surprisingly, habitat for listed species in Indian Country -- even unoccupied, marginally suitable habitat -- is often viewed by federal agencies as desirable for inclusion in critical habitat designations. Yet, while the application of the ESA's habitat provisions to private property has generated a sustained furor among private property owners, fueling the fire for proposals to amend the statute, very little attention has been given to the ESA7s effects on lands within Indian Country. Recently, however, decisions to designate critical habitat on tribal lands, particularly in the southwestern United States, have brought the ESA-trust responsibility conflict to a head.

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