Kevin Burdet


In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling Tribal management on federal lands. In those same twenty years, wildfires have burned an average of seven million acres each year, more than double the rate of lands burned in the 1990s. Climate change has created warmer, drier conditions, particularly in the western United States, which have made wildfires more destructive.

This Note seeks to provide multiple legal mechanisms to assist the TFPA and other federal statutes in facilitating Native-led fire management practices on federal lands. Part I provides a brief history of Native forestry and fire practices, how they were impeded and superseded by federal forestry practices, and how federal forestry practices have evolved, or remained the same, since their inception in the late nineteenth century. Part II describes the current legal mechanisms that Tribes use to propose fire management projects, weighing the pros and cons of each mechanism: National Indian Forest Resources Management Act (NIFRMA), TFPA, Memorandums of Agreement (MOU), Indian Self-Determination and Education Assistance Act (ISDEAA or “638”) Agreements, and Good Neighbor Authority (GNA). Part III analyzes how these legal mechanisms can be improved, either by revising them to be less restrictive on Tribal-led fire management practices or by developing new legislation that incorporates the effective aspects of these mechanisms. Part III also analyzes how amendments or new legislation could adopt legal mechanisms used in environmental statutes, such as the Clean Air Act (CAA). This comparison makes an appeal to relinquish federal authority and allow for Tribal authority of environmental standards alongside forestry and fire management on federal lands.

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