ORDER NO. 3206 SIGNATURE DATE: June 5, 1997 Subject

ORDER NO. 3206

SIGNATURE DATE: June 5, 1997

Subject: American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the

Endangered Species Act

Sec. 1 Purpose and Authority. This Order is issued by the Secretary of the Interior and the

Secretary of Commerce (Secretaries) pursuant to the Endangered Species Act of 1973, 16 U.S.C.

'1531, as amended (the Act), the federal-tribal trust relationship,

and other federal law. Specifically, this Order clarifies the

responsibilities of the component agencies, bureaus and offices of

the Department of the Interior and the Department of Commerce

(Departments), when actions taken under authority of the Act and

associated implementing regulations affect, or may affect, Indian

lands, tribal trust resources, or the exercise of American Indian

tribal rights, as defined in this Order. This Order further

acknowledges the trust responsibility and treaty obligations of the

United States toward Indian tribes and tribal members and its

government-to-government relationship in dealing with tribes.

Accordingly, the Departments will carry out their responsibilities

under the Act in a manner that harmonizes the Federal trust

responsibility to tribes, tribal sovereignty, and statutory missions

of the Departments, and that strives to ensure that Indian tribes

do not bear a disproportionate burden for the conservation of listed

species, so as to avoid or minimize the potential for conflict and

confrontation.

Sec. 2 Scope and Limitations. (A) This Order is for guidance within

the Departments only and is adopted pursuant to, and is consistent

with, existing law.

(B) This Order shall not be construed to grant, expand, create, or

diminish any legally enforceable rights, benefits or trust

responsibilities, substantive or procedural, not otherwise granted

or created under existing law. Nor shall this Order be construed

to alter, amend, repeal, interpret or modify tribal sovereignty, any

treaty rights, or other rights of any Indian tribe, or to preempt,

modify or limit the exercise of any such rights.

authorities or the authorities of Indian tribes or the states.

(D) Nothing in this Order shall be applied to authorize direct

(directed) take of listed species, or any activity that would

jeopardize the continued existence of any listed species or destroy

or adversely modify designated critical habitat. Incidental take

issues under this Order are addressed in Principle 3(C) of Section

(E) Nothing in this Order shall require additional procedural

requirements for substantially completed Departmental actions,

activities, or policy initiatives.

(F) Implementation of this Order shall be subject to the availability

of resources and the requirements of the Anti-Deficiency Act.

(G) Should any tribe(s) and the Department(s) agree that greater

efficiency in the implementation of this Order can be achieved, nothing

in this Order shall prevent them from implementing strategies to do

so.

(H) This Order shall not be construed to supersede, amend, or

otherwise modify or affect the implementation of, existing agreements

or understandings with the Departments or their agencies, bureaus,

or offices including, but not limited to, memoranda of understanding,

memoranda of agreement, or statements of relationship, unless mutually

agreed by the signatory parties.

Sec. 3 Definitions. For the purposes of this Order, except as

otherwise expressly provided, the following terms shall apply:

(A) The term "Indian tribe" shall mean any Indian tribe, band, nation,

pueblo, community or other organized group within the United States

which the Secretary of the Interior has identified on the most current

list of tribes maintained by the Bureau of Indian Affairs.

(B) The term "tribal trust resources" means those natural resources,

either on or off Indian lands, retained by, or reserved by or for

Indian tribes through treaties, statutes, judicial decisions, and

executive orders, which are protected by a fiduciary obligation on

the part of the United States.

to a tribe or tribes by virtue of inherent sovereign authority,

unextinguished aboriginal title, treaty, statute, judicial decisions,

executive order or agreement, and which give rise to legally

enforceable remedies.

(D) The term "Indian lands" means any lands title to which is either:

1) held in trust by the United States for the benefit of any Indian

tribe or individual; or 2) held by any Indian tribe or individual

subject to restrictions by the United States against alienation.

Sec. 4 Background. The unique and distinctive political

relationship between the United States and Indian tribes is defined

by treaties, statutes, executive orders, judicial decisions, and

agreements, and differentiates tribes from other entities that deal

with, or are affected by, the federal government. This relationship

has given rise to a special federal trust responsibility, involving

the legal responsibilities and obligations of the United States toward

Indian tribes and the application of fiduciary standards of due care

with respect to Indian lands, tribal trust resources, and the exercise

of tribal rights.

The Departments recognize the importance of tribal

self-governance and the protocols of a government-to-government

relationship with Indian tribes. Long-standing Congressional and

Administrative policies promote tribal self-government,

self-sufficiency, and self-determination, recognizing and endorsing

the fundamental rights of tribes to set their own priorities and make

decisions affecting their resources and distinctive ways of life.

The Departments recognize and respect, and shall consider, the value

that tribal traditional knowledge provides to tribal and federal land

management decision-making and tribal resource management activities.

The Departments recognize that Indian tribes are governmental

sovereigns; inherent in this sovereign authority is the power to make

and enforce laws, administer justice, manage and control Indian lands,

exercise tribal rights and protect tribal trust resources. The

Departments shall be sensitive to the fact that Indian cultures,

religions, and spirituality often involve ceremonial and medicinal

uses of plants, animals, and specific geographic places.

Indian lands are not federal public lands or part of the public

domain, and are not subject to federal public land laws. They were

retained by tribes or were set aside for tribal use pursuant to

treaties, statutes, judicial decisions, executive orders or

agreements. These lands are managed by Indian tribes in accordance

with tribal goals and objectives, within the framework of applicable

laws.

Because of the unique government-to-government relationship

between Indian tribes and the United States, the Departments and

affected Indian tribes need to establish and maintain effective

working relationships and mutual partnerships to promote the

conservation of sensitive species (including candidate, proposed and

listed species) and the health of ecosystems upon which they depend.

Such relationships should focus on cooperative assistance,

consultation, the sharing of information, and the creation of

government-to-government partnerships to promote healthy ecosystems.

In facilitating a government-to-government relationship, the

Departments may work with intertribal organizations, to the extent

such organizations are authorized by their member tribes to carry

out resource management responsibilities.

Sec. 5 Responsibilities. To achieve the objectives of this Order,

the heads of all agencies, bureaus and offices within the Department

of the Interior, and the Administrator of the National Oceanic and

Atmospheric Administration (NOAA) within the Department of Commerce,

shall be responsible for ensuring that the following directives are

followed:

Principle 1. THE DEPARTMENTS SHALL WORK DIRECTLY WITH INDIAN TRIBES

ON A GOVERNMENT-TO-GOVERNMENT BASIS TO PROMOTE HEALTHY ECOSYSTEMS.

The Departments shall recognize the unique and distinctive

political and constitutionally based relationship that exists between

the United States and each Indian tribe, and shall view tribal

governments as sovereign entities with authority and responsibility

for the health and welfare of ecosystems on Indian lands. The

Departments recognize that Indian tribes are governmental sovereigns

with inherent powers to make and enforce laws, administer justice,

and manage and control their natural resources. Accordingly, the

Departments shall seek to establish effective

government-to-government working relationships with tribes to achieve

the common goal of promoting and protecting the health of these

ecosystems. Whenever the agencies, bureaus, and offices of the

Departments are aware that their actions planned under the Act may

impact tribal trust resources, the exercise of tribal rights, or Indian

lands, they shall consult with, and seek the participation of, the

affected Indian tribes to the maximum extent practicable. This shall

include providing affected tribes adequate opportunities to

participate in data collection, consensus seeking, and associated

processes. To facilitate the government-to-government relationship,

the Departments may coordinate their discussions with a representative

from an intertribal organization, if so designated by the affected

tribe(s).

Except when determined necessary for investigative or

prosecutorial law enforcement activities, or when otherwise provided

in a federal-tribal agreement, the Departments, to the maximum extent

practicable, shall obtain permission from tribes before knowingly

entering Indian reservations and tribally-owned fee lands for purposes

of ESA-related activities, and shall communicate as necessary with

the appropriate tribal officials. If a tribe believes this section

has been violated, such tribe may file a complaint with the appropriate

Secretary, who shall promptly investigate and respond to the tribe.

Principle 2. THE DEPARTMENTS SHALL RECOGNIZE THAT INDIAN LANDS ARE

NOT SUBJECT TO THE SAME CONTROLS AS FEDERAL PUBLIC LANDS.

The Departments recognize that Indian lands, whether held in

trust by the United States for the use and benefit of Indians or owned

exclusively by an Indian tribe, are not subject to the controls or

restrictions set forth in federal public land laws. Indian lands

are not federal public lands or part of the public domain, but are

rather retained by tribes or set aside for tribal use pursuant to

treaties, statutes, court orders, executive orders, judicial

decisions, or agreements. Accordingly, Indian tribes manage Indian

lands in accordance with tribal goals and objectives, within the

framework of applicable laws.

Principle 3. THE DEPARTMENTS SHALL ASSIST INDIAN TRIBES IN DEVELOPING

AND EXPANDING TRIBAL PROGRAMS SO THAT HEALTHY ECOSYSTEMS ARE PROMOTED

AND CONSERVATION RESTRICTIONS ARE UNNECESSARY.

(A) The Departments shall take affirmative steps to assist Indian

tribes in developing and expanding tribal programs that promote

healthy ecosystems.

The Departments shall take affirmative steps to achieve the

common goals of promoting healthy ecosystems, Indian self-government,

and productive government-to-government relationships under this

Order, by assisting Indian tribes in developing and expanding tribal

programs that promote the health of ecosystems upon which sensitive

species (including candidate, proposed and listed species) depend.

The Departments shall offer and provide such scientific and

technical assistance and information as may be available for the

development of tribal conservation and management plans to promote

the maintenance, restoration, enhancement and health of the ecosystems

upon which sensitive species (including candidate, proposed, and

listed species) depend, including the cooperative identification of

appropriate management measures to address concerns for such species

and their habitats.

(B) The Departments shall recognize that Indian tribes are

appropriate governmental entities to manage their lands and tribal

trust resources.

The Departments acknowledge that Indian tribes value, and

exercise responsibilities for, management of Indian lands and tribal

trust resources. In keeping with the federal policy of promoting

tribal self-government, the Departments shall respect the exercise

of tribal sovereignty over the management of Indian lands, and tribal

trust resources. Accordingly, the Departments shall give deference

to tribal conservation and management plans for tribal trust resources

that: (a) govern activities on Indian lands, including, for the

purposes of this section, tribally-owned fee lands, and (b) address

the conservation needs of listed species. The Departments shall

conduct government-to-government consultations to discuss the extent

to which tribal resource management plans for tribal trust resources

outside Indian lands can be incorporated into actions to address the

conservation needs of listed species.

preclude the need for conservation restrictions.

At the earliest indication that the need for federal conservation

restrictions is being considered for any species, the Departments,

acting in their trustee capacities, shall promptly notify all

potentially affected tribes, and provide such technical, financial,

or other assistance as may be appropriate, thereby assisting Indian

tribes in identifying and implementing tribal conservation and other

measures necessary to protect such species.

In the event that the Departments determine that conservation

restrictions are necessary in order to protect listed species, the

Departments, in keeping with the trust responsibility and

government-to-government relationships, shall consult with affected

tribes and provide written notice to them of the intended restriction

as far in advance as practicable. If the proposed conservation

restriction is directed at a tribal activity that could raise the

potential issue of direct (directed) take under the Act, then

meaningful government-to-government consultation shall occur, in

order to strive to harmonize the federal trust responsibility to

tribes, tribal sovereignty and the statutory missions of the

Departments. In cases involving an activity that could raise the

potential issue of an incidental take under the Act, such notice shall

include an analysis and determination that all of the following

conservation standards have been met: (i) the restriction is

reasonable and necessary for conservation of the species at issue;

(ii) the conservation purpose of the restriction cannot be achieved

by reasonable regulation of non-Indian activities; (iii) the measure

is the least restrictive alternative available to achieve the required

conservation purpose; (iv) the restriction does not discriminate

against Indian activities, either as stated or applied; and, (v)

voluntary tribal measures are not adequate to achieve the necessary

conservation purpose.

Principle 4. THE DEPARTMENTS SHALL BE SENSITIVE TO INDIAN CULTURE,

RELIGION AND SPIRITUALITY.

The Departments shall take into consideration the impacts of

their actions and policies under the Act on Indian use of listed species

for cultural and religious purposes. The Departments shall avoid

or minimize, to the extent practicable, adverse effects upon the

noncommercial use of listed sacred plants and animals in medicinal

treatments and in the expression of cultural and religious beliefs

by Indian tribes. When appropriate, the Departments may issue

guidelines to accommodate Indian access to, and traditional uses of,

listed species, and to address unique circumstances that may exist

when administering the Act.

Principle 5. THE DEPARTMENTS SHALL MAKE AVAILABLE TO INDIAN TRIBES

INFORMATION RELATED TO TRIBAL TRUST RESOURCES AND INDIAN LANDS, AND,

TO FACILITATE THE MUTUAL EXCHANGE OF INFORMATION, SHALL STRIVE TO

PROTECT SENSITIVE TRIBAL INFORMATION FROM DISCLOSURE.

To further tribal self-government and the promotion of healthy

ecosystems, the Departments recognize the critical need for Indian

tribes to possess complete and accurate information related to Indian

lands and tribal trust resources. To the extent consistent with the

provisions of the Privacy Act, the Freedom of Information Act (FOIA)

and the Departments' abilities to continue to assert FOIA exemptions

with regard to FOIA requests, the Departments shall make available

to an Indian tribe all information held by the Departments which is

related to its Indian lands and tribal trust resources. In the course

of the mutual exchange of information, the Departments shall protect,

to the maximum extent practicable, tribal information which has been

disclosed to or collected by the Departments. The Departments shall

promptly notify and, when appropriate, consult with affected tribes

regarding all requests for tribal information relating to the

administration of the Act.

Sec. 6 Federal-Tribal Intergovernmental Agreements. The

Departments shall, when appropriate and at the request of an Indian

tribe, pursue intergovernmental agreements to formalize arrangements

involving sensitive species (including candidate, proposed, and

listed species) such as, but not limited to, land and resource

management, multi-jurisdictional partnerships, cooperative law

enforcement, and guidelines to accommodate Indian access to, and

traditional uses of, natural products. Such agreements shall strive

to establish partnerships that harmonize the Departments' missions

under the Act with the Indian tribe's own ecosystem management

objectives.

Sec. 7 Alaska. The Departments recognize that section 10(e) of the

Act governs the taking of listed species by Alaska Natives for

subsistence purposes and that there is a need to study the

implementation of the Act as applied to Alaska tribes and natives.

Accordingly, this Order shall not apply to Alaska and the Departments

shall, within one year of the date of this Order, develop

recommendations to the Secretaries to supplement or modify this Order

and its Appendix, so as to guide the administration of the Act in

Alaska. These recommendations shall be developed with the full

cooperation and participation of Alaska tribes and natives. The

purpose of these recommendations shall be to harmonize the

government-to-government relationship with Alaska tribes, the federal

trust responsibility to Alaska tribes and Alaska Natives, the rights

of Alaska Natives, and the statutory missions of the Departments.

Sec. 8 Special Study on Cultural and Religious Use of Natural

Products. The Departments recognize that there remain tribal

concerns regarding the access to, and uses of, eagle feathers, animal

parts, and other natural products for Indian cultural and religious

purposes. Therefore, the Departments shall work together with Indian

tribes to develop recommendations to the Secretaries within one year

to revise or establish uniform administrative procedures to govern

the possession, distribution, and transportation of such natural

products that are under federal jurisdiction or control.

Sec. 9 Dispute Resolution. (A) Federal-tribal disputes regarding

implementation of this Order shall be addressed through

government-to-government discourse. Such discourse is to be

respectful of government-to-government relationships and relevant

federal-tribal agreements, treaties, judicial decisions, and policies

pertaining to Indian tribes. Alternative dispute resolution

processes may be employed as necessary to resolve disputes on technical

or policy issues within statutory time frames; provided that such

alternative dispute resolution processes are not intended to apply

in the context of investigative or prosecutorial law enforcement

activities.

(B) Questions and concerns on matters relating to the use or

possession of listed plants or listed animal parts used for religious

or cultural purposes shall be referred to the appropriate Departmental

officials and the appropriate tribal contacts for religious and

cultural affairs.

Sec. 10 Implementation. This Order shall be implemented by all

agencies, bureaus, and offices of the Departments, as applicable.

In addition, the U.S. Fish and Wildlife Service and the National Marine

Fisheries Service shall implement their specific responsibilities

under the Act in accordance with the guidance contained in the attached

Appendix.

Sec. 11 Effective Date. This Order, issued within the Department

of the Interior as Order No. 3206, is effective immediately and will

remain in effect until amended, superseded, or revoked.

This Secretarial Order, entitled "American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities, and the Endangered Species

Act," and its accompanying Appendix were issued this 5th day of June,

1997, in Washington, D.C., by the Secretary of the Interior and the

Secretary of Commerce.

/s/ Bruce Babbitt

Secretary of the Interior

/s/ William M. Daley

Secretary of Commerce

Date: June 5, 1997

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APPENDIX

Appendix to Secretarial Order issued within the Department of the

Interior as Order No. 3206.

Sec. 1 Purpose. The purpose of this Appendix is to provide policy

to the National, regional and field offices of the U.S. Fish and

Wildlife Service (FWS) and the National Marine Fisheries Service

(NMFS), (hereinafter "Services"), concerning the implementation of

the Secretarial Order issued by the Department of the Interior and

the Department of Commerce, entitled "American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities, and the Endangered Species

Act." This policy furthers the objectives of the FWS Native American

Policy (June 28, 1994), and the American Indian and Alaska Native

Policy of the Department of Commerce (March 30, 1995). This Appendix

shall be considered an integral part of the above Secretarial Order,

and all sections of the Order shall apply in their entirety to this

Appendix.

Sec. 2 General Policy. (A) Goals. The goals of this Appendix are

to provide a basis for administration of the Act in a manner that

(1) recognizes common federal-tribal goals of conserving sensitive

species (including candidate, proposed, and listed species) and the

ecosystems upon which they depend, Indian self-government, and

productive government-to-government relationships; and (2)

harmonizes the federal trust responsibility to tribes, tribal

sovereignty, and the statutory missions of the Departments, so as

to avoid or minimize the potential for conflict and confrontation.

(B) Government-to-Government Communication. It shall be the

responsibility of each Service's regional and field offices to

maintain a current list of tribal contact persons within each Region,

and to ensure that meaningful government-to-government communication

occurs regarding actions to be taken under the Act.

responsibilities in administering the Act, while the Services and

other federal agencies share responsibilities for honoring Indian

treaties and other sources of tribal rights. The Bureau of Indian

Affairs (BIA) has the primary responsibility for carrying out the

federal responsibility to administer tribal trust property and

represent tribal interests during formal Section 7 consultations under

the Act. Accordingly, the Services shall consult, as appropriate,

with each other, affected Indian tribes, the BIA, the Office of the

Solicitor (Interior), the Office of American Indian Trust (Interior),

and the NOAA Office of General Counsel in determining how the fiduciary

responsibility of the federal government to Indian tribes may best

be realized.

(D) Technical Assistance. In their roles as trustees, the Services

shall offer and provide technical assistance and information for the

development of tribal conservation and management plans to promote

the maintenance, restoration, and enhancement of the ecosystems on

which sensitive species (including candidate, proposed, and listed

species) depend. The Services should be creative in working with

the tribes to accomplish these objectives. Such technical assistance

may include the cooperative identification of appropriate management

measures to address concerns for sensitive species (including

candidate, proposed and listed species) and their habitats. Such

cooperation may include intergovernmental agreements to enable Indian

tribes to more fully participate in conservation programs under the

Act. Moreover, the Services may enter into conservation easements

with tribal governments and enlist tribal participation in incentive

programs.

(E) Tribal Conservation Measures. The Services shall, upon the

request of an Indian tribe or the BIA, cooperatively review and assess

tribal conservation measures for sensitive species (including

candidate, proposed and listed species) which may be included in tribal

resource management plans. The Services will communicate to the

tribal government their desired conservation goals and objectives,

as well as any technical advice or suggestions for the modification

of the plan to enhance its benefits for the conservation of sensitive

species (including candidate, proposed and listed species). In

keeping with the Services' initiatives to promote voluntary

conservation partnerships for listed species and the ecosystems upon

which they depend, the Services shall consult on a

government-to-government basis with the affected tribe to determine

and provide appropriate assurances that would otherwise be provided

to a non-Indian.

Sec. 3 The Federal Trust Responsibility and the Administration of

the Act.

The Services shall coordinate with affected Indian tribes in order

to fulfill the Services' trust responsibilities and encourage

meaningful tribal participation in the following programs under the

Act, and shall:

(A) Candidate Conservation.

(1) Solicit and utilize the expertise of affected Indian tribes in

evaluating which animal and plant species should be included on the

list of candidate species, including conducting population status

inventories and geographical distribution surveys;

(2) Solicit and utilize the expertise of affected Indian tribes when

designing and implementing candidate conservation actions to remove

or alleviate threats so that the species' listing priority is reduced

or listing as endangered or threatened is rendered unnecessary; and

(3) Provide technical advice and information to support tribal

efforts and facilitate voluntary tribal participation in

implementation measures to conserve candidate species on Indian lands.

(B) The Listing Process.

(1) Provide affected Indian tribes with timely notification of the

receipt of petitions to list species, the listing of which could affect

the exercise of tribal rights or the use of tribal trust resources.

In addition, the Services shall solicit and utilize the expertise

of affected Indian tribes in responding to listing petitions that

may affect tribal trust resources or the exercise of tribal rights.

(2) Recognize the right of Indian tribes to participate fully in

the listing process by providing timely notification to, soliciting

information and comments from, and utilizing the expertise of, Indian

tribes whose exercise of tribal rights or tribal trust resources could

be affected by a particular listing. This process shall apply to

proposed and final rules to: (i) list species as endangered or

threatened; (ii) designate critical habitat; (iii) reclassify a

species from endangered to threatened (or vice versa); (iv) remove

a species from the list; and (v) designate experimental populations.

(3) Recognize the contribution to be made by affected Indian tribes,

throughout the process and prior to finalization and close of the

public comment period, in the review of proposals to designate critical

habitat and evaluate economic impacts of such proposals with

implications for tribal trust resources or the exercise of tribal

rights. The Services shall notify affected Indian tribes and the

BIA, and solicit information on, but not limited to, tribal cultural

values, reserved hunting, fishing, gathering, and other Indian rights

or tribal economic development, for use in: (i) the preparation of

economic analyses involving impacts on tribal communities; and (ii)

the preparation of "balancing tests" to determine appropriate

exclusions from critical habitat and in the review of comments or

petitions concerning critical habitat that may adversely affect the

rights or resources of Indian tribes.

(4) In keeping with the trust responsibility, shall consult with

the affected Indian tribe(s) when considering the designation of

critical habitat in an area that may impact tribal trust resources,

tribally-owned fee lands, or the exercise of tribal rights. Critical

habitat shall not be designated in such areas unless it is determined

essential to conserve a listed species. In designating critical

habitat, the Services shall evaluate and document the extent to which

the conservation needs of the listed species can be achieved by

limiting the designation to other lands.

(5) When exercising regulatory authority for threatened species

under section 4(d) of the Act, avoid or minimize effects on tribal

management or economic development, or the exercise of reserved Indian

fishing, hunting, gathering, or other rights, to the maximum extent

allowed by law.

(6) Having first provided the affected Indian tribe(s) the

opportunity to actively review and comment on proposed listing

actions, provide affected Indian tribe(s) with a written explanation

whenever a final decision on any of the following activities conflicts

with comments provided by an affected Indian tribe: (i) list a species

as endangered or threatened; (ii) designate critical habitat; (iii)

reclassify a species from endangered to threatened (or vice versa);

(iv) remove a species from the list; or (v) designate experimental

populations. If an affected Indian tribe petitions for rulemaking

under Section 4(b)(3), the Services will consult with and provide

a written explanation to the affected tribe if they fail to adopt

the requested regulation.

(1) Facilitate the Services' use of the best available scientific

and commercial data by soliciting information, traditional knowledge,

and comments from, and utilizing the expertise of, affected Indian

tribes in addition to data provided by the action agency during the

consultation process. The Services shall provide timely notification

to affected tribes as soon as the Services are aware that a proposed

federal agency action subject to formal consultation may affect tribal

rights or tribal trust resources.

(2) Provide copies of applicable final biological opinions to

affected tribes to the maximum extent permissible by law.

(3)(a) When the Services enter formal consultation on an action

proposed by the BIA, the Services shall consider and treat affected

tribes as license or permit applicants entitled to full participation

in the consultation process. This shall include, but is not limited

to, invitations to meetings between the Services and the BIA,

opportunities to provide pertinent scientific data and to review data

in the administrative record, and to review biological assessments

and draft biological opinions. In keeping with the trust

responsibility, tribal conservation and management plans for tribal

trust resources that govern activities on Indian lands, including

for purposes of this paragraph, tribally-owned fee lands, shall serve

as the basis for developing any reasonable and prudent alternatives,

to the extent practicable.

(b) When the Services enter into formal consultations with an

Interior Department agency other than the BIA, or an agency of the

Department of Commerce, on a proposed action which may affect tribal

rights or tribal trust resources, the Services shall notify the

affected Indian tribe(s) and provide for the participation of the

BIA in the consultation process.

not in the Departments of the Interior or Commerce, on a proposed

action which may affect tribal rights or tribal trust resources, the

Services shall notify the affected Indian tribe(s) and encourage the

action agency to invite the affected tribe(s) and the BIA to

participate in the consultation process.

(d) In developing reasonable and prudent alternatives, the Services

shall give full consideration to all comments and information received

from any affected tribe, and shall strive to ensure that any

alternative selected does not discriminate against such tribe(s).

The Services shall make a written determination describing (i) how

the selected alternative is consistent with their trust

responsibilities, and (ii) the extent to which tribal conservation

and management plans for affected tribal trust resources can be

incorporated into any such alternative.

(D) Habitat Conservation Planning.

(1) Facilitate the Services' use of the best available scientific

and commercial data by soliciting information, traditional knowledge,

and comments from, and utilizing the expertise of, affected tribal

governments in habitat conservation planning that may affect tribal

trust resources or the exercise of tribal rights. The Services shall

facilitate tribal participation by providing timely notification as

soon as the Services are aware that a draft Habitat Conservation Plan

(HCP) may affect such resources or the exercise of such rights.

(2) Encourage HCP applicants to recognize the benefits of working

cooperatively with affected Indian tribes and advocate for tribal

participation in the development of HCPs. In those instances where

permit applicants choose not to invite affected tribes to participate

in those negotiations, the Services shall consult with the affected

tribes to evaluate the effects of the proposed HCP on tribal trust

resources and will provide the information resulting from such

consultation to the HCP applicant prior to the submission of the draft

HCP for public comment. After consultation with the tribes and the

non-federal landowner and after careful consideration of the tribe's

concerns, the Services must clearly state the rationale for the

recommended final decision and explain how the decision relates to

the Services' trust responsibility.

(3) Advocate the incorporation of measures into HCPs that will

restore or enhance tribal trust resources. The Services shall

advocate for HCP provisions that eliminate or minimize the

diminishment of tribal trust resources. The Services shall be

cognizant of the impacts of measures incorporated into HCPs on tribal

trust resources and the tribal ability to utilize such resources.

(4) Advocate and encourage early participation by affected tribal

governments in the development of region-wide or state-wide habitat

conservation planning efforts and in the development of any related

implementation documents.

(E) Recovery.

(1) Solicit and utilize the expertise of affected Indian tribes by

having tribal representation, as appropriate, on Recovery Teams when

the species occurs on Indian lands (including tribally-owned fee

lands), affects tribal trust resources, or affects the exercise of

tribal rights.

(2) In recognition of tribal rights, cooperate with affected tribes

to develop and implement Recovery Plans in a manner that minimizes

the social, cultural and economic impacts on tribal communities,

consistent with the timely recovery of listed species. The Services

shall be cognizant of tribal desires to attain population levels and

conditions that are sufficient to support the meaningful exercise

of reserved rights and the protection of tribal management or

development prerogatives for Indian resources.

(3) Invite affected Indian tribes, or their designated

representatives, to participate in the Recovery Plan implementation

process through the development of a participation plan and through

tribally-designated membership on recovery teams. The Services shall

work cooperatively with affected Indian tribes to identify and

implement the most effective measures to speed the recovery process.

(4) Solicit and utilize the expertise of affected Indian tribes in

the design of monitoring programs for listed species and for species

which have been removed from the list of Endangered and Threatened

Wildlife and Plants occurring on Indian lands or affecting the exercise

of tribal rights or tribal trust resources.

(F) Law Enforcement.

(1) At the request of an Indian tribe, enter into cooperative law

enforcement agreements as integral components of tribal, federal,

and state efforts to conserve species and the ecosystems upon which

they depend. Such agreements may include the delegation of

enforcement authority under the Act, within limitations, to full-time

tribal conservation law enforcement officers.

(2) Cooperate with Indian tribes in enforcement of the Act by

identifying opportunities for joint enforcement operations or

investigations. Discuss new techniques and methods for the detection

and apprehension of violators of the Act or tribal conservation laws,

and exchange law enforcement information in general.

SO#3206 6/5/97