By Ethan Jones
The United States Bureau of Indian Affairs has mismanaged Tribal forests in the Pacific Northwest for decades, but Tribes are fighting back.
In a series of lawsuits against the Department of the Interior, the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of the Colville Reservation have separately pursued breach of trust claims arising from federal forest mismanagement or wildfire mismanagement of their Reservation forests.[i] Federal efforts to dismiss those lawsuits were rejected, demonstrating the continued viability of Tribal forestry breach of trust claims to this day.[ii] Tribes should strongly consider bringing forestry breach of trust claims to recover damages resulting from federal mismanagement of their federal forest lands.
United States Statutes Create Actionable Federal Trust Duties
Through legislation enacted over the last 120 years, Congress established a comprehensive legal framework to manage Tribal forests on a sustained-yield basis for the benefit of Tribes and individual Indian allottees.[iii] The Department of the Interior is charged with carrying out those federal obligations to manage Tribal forests, which Interior accomplishes in accordance with related regulations and policies.[iv] Federal courts have reviewed this body of statutes, regulations, and policies, and determined that the United States assumed enforceable trust duties upon itself for the management of Tribal forest lands, the breach of which is answerable in money damages.[v]
While the United States generally benefits from sovereign immunity against any such money damages claims, Congress waived sovereign immunity in the Tucker Act and Indian Tucker Act for certain Tribal breach of trust claims asserted in the United States Court of Federal Claims.[vi] To access this waiver of sovereign immunity, Tribes must establish that the United States enacted substantive sources of law that create federal trust duties, assert that the United States breached those trust duties, and demonstrate that the substantive sources of law can be fairly interpreted as mandating compensation for the breach.[vii] Tribal forestry breach of trust claims represent the gold standard for satisfying this test.
United States v. Mitchell, 463 U.S. 206 (1983), which is regularly referred to as Mitchell II, is the foundational case for Tribal forestry breach of trust claims. In Mitchell II, the Quinault Tribe and individual Indian allottees sued the United States for failing to manage their timber on a sustained-yield basis, failing to secure fair market value for their timber, and failing to rehabilitate their Reservation forest lands following timber harvests, among other claims.[viii] The United States moved to dismiss the claims as inadequate to trigger the United States’ waiver of sovereign immunity under the Tucker Act and Indian Tucker Act.[ix] In rejecting the United States’ arguments, the Supreme Court reviewed the forestry statutes and regulations at issue and found that the United States assumed trust duties to manage Tribal forests, the breach of which is answerable in money damages.[x]
Following Mitchell II, the United States remained intransigent in their refusal to meet their trust duties owed to Tribes to responsibly manage their Reservation forests. Congress responded by enacting the National Indian Forest Resources Management Act (“NIFRMA”), 25 U.S.C. §§ 3101 et seq., which provides significantly more clarity on the exact role that the United States should be performing in its management of Tribal forest lands. Importantly, NIFRMA obligates the Secretary of the Interior to perform “forest land management activities,” which is defined to include a detailed list of forest management, insect and disease treatment, wildfire prevention, and wildfire suppression-related activities.[xi]
While NIFRMA has been good law since the 1990’s, the Court of Federal Claims has not relied on NIFRMA as a meaningful basis for Tribal forestry breach of trust claims until the Yakama Nation and Colville cases over the past few years.[xii] In asserting forestry mismanagement and wildfire mismanagement claims against the United States, the Yakama Nation and Colville both relied principally on the same body of laws and regulations that were at issue in Mitchell II, but they went one step further. Both Tribes asserted that NIFRMA’s list of forest land management activities was actually a supplement to the list of the actionable trust duties that were recognized in Mitchell II, which were actionable as a basis for Tribal forestry breach of trust claims.
In a significant series of decisions for the future of Tribal forestry breach of trust cases, the Court of Federal Claims generally agreed.[xiii] While the Court was unwilling to say that NIFRMA, standing alone, could sustain a Tribal forestry breach of trust claim, it held that claims based on both the comprehensive suite of laws at issue in Mitchell II and NIFRMA were sufficient to trigger the United States’ waiver of sovereign immunity and survive federal motions to dismiss.[xiv]
Tribes will still have to win on the facts, but these decisions make it clear that a well-pled complaint asserting a breach of the trust duties set forth in NIFRMA, with appropriate citations to the statutes and regulations at issue in Mitchell II, is likely to survive federal motions to dismiss in the Court of Federal Claims.
Crucial to Tribal Sovereignty, Tribal Forests Require Strong Legal Protection
Strong and resilient Reservation forests are a critical part of Tribal efforts to enhance and preserve natural and cultural resources for their future generations, to provide trust income that funds essential governmental services, and to support Tribal forest economies. The United States has affirmatively assumed the obligation to manage those resources for Tribes, often at the expense of any given Tribe’s own forest management decisions. Where the United States fails to meet its management obligations, it should be held accountable to the Tribe for any resulting damages.
The legal landscape for Tribal forestry breach of trust claims is more favorable now than it has been in years. Tribes should strongly consider pursuing Tribal forestry breach of trust claims wherever necessary to hold the United States accountable for mismanaging such critically important Tribal trust resources.
Ethan Jones is Of Counsel for Galanda Broadman, where he provides general civil legal representation to Tribes and their economic enterprises, including on Tribal forestry breach of trust claims. Ethan can be reached by phone at (509) 317-1430, and by email at ethan@galandabroadman.com.
[i] Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, No. 1:19-cv-01966 (Fed. Cl. filed 2019); Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, No. 1:21-cv-01527 (Fed. Cl. filed 2021); Confederated Tribes of the Colville Reservation v. United States, No. 1:21-cv-01664 (Fed. Cl. filed 2021).
[ii] Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, 153 Fed. Cl. 676 (2021); Confederated Tribes of the Colville Reservation v. United States, 171 Fed. Cl. 622 (2024); Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, 171 Fed. Cl. 692 (2024).
[iii] See, e.g., 25 U.S.C. § 196; 25 U.S.C. § 406; 25 U.S.C. § 407; 25 U.S.C. §§ 3103 et seq.; 25 U.S.C. § 5109; 16 U.S.C. § 594.
[iv] See, e.g., 25 C.F.R. Part 163.
[v] See, e.g., United States v. Mitchell, 463 U.S. 206 (1983); Confederated Tribes of Warm Springs Reservation of Oregon v. United States, 248 F.3d 1365 (Fed. Cir. 2001).
[vi] 28 U.S.C. §§ 1491(a)(1), 1505.
[vii] United States v. Navajo Nation, 556 U.S. 287, 290-91 (2009).
[viii] United States v. Mitchell, 463 U.S. at 210.
[ix] Id.
[x] Id. at 226.
[xi] 25 U.S.C. §§ 3103(4), 3104(a).
[xii] See also The Blackfeet Tribe of the Blackfeet Indian Reservation v. United States, No. 12-429L (Fed. Cl. Aug. 21, 2015) (vacated following settlement) (relying on NIFRMA to help establish the Court’s jurisdiction over a Tribal forest wildfire breach of trust claim).
[xiii] Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, 153 Fed. Cl. at 703-05; Confederated Tribes of the Colville Reservation v. United States, 171 Fed. Cl. at 635; Confederated Tribes and Bands of the Yakama Nation, et al. v. United States, 171 Fed. Cl. at 711-12.
[xiv] Id.
