U.S. Fish and Wildlife Service, Council of Athabascan Tribal Governments, Reach Agreement

The following list of questions and answers provides background information concerning a proposed annual funding agreement between the U.S. Fish and Wildlife Service and the Council of Athabascan Tribal Governments which would allow the Council to perform some activities on the Yukon Flats National Wildlife Refuge.

What is the Tribal Self-Governance Act?
The Tribal Self-Governance Act of 1994 was enacted as an amendment to Public Law 93-638 (The Indian Self-Determination and Education Assistance Act) and incorporated as Title IV of that Act.

The Self-Governance Act allows identified self-governance Tribes the opportunity to enter into annual funding agreements with the Bureau of Indian Affairs (BIA) and non-BIA agencies within the Department of the Interior. When dealing with non-BIA agencies, including the U.S. Fish and Wildlife Service, identified tribes may enter into funding agreements that would allow them to conduct certain programs, functions, services, or activities of such non-BIA agencies. Eligible activities include Indian programs (programs created for the benefit of Indians due to their special status as Indians); activities otherwise available to Indian Tribes (any activity that a Federal agency might otherwise contract to outside entities); and activities that have a special geographic, historic, or cultural relationship with an Indian Tribe. In the agreement, we are collectively referring to identified programs, functions, services, or activities as Activities.

The Fish and Wildlife Service has no special Indian programs. All activities of the Service on national wildlife refuges in Alaska and the rest of the United States are for the benefit of the resource or for the American public. Activities that may have a special relationship with a Tribe are the most promising for inclusion in an annual funding agreement with Indian Tribes. Whether to enter into an agreement with a Tribe for these activities is discretionary on the part of the Service. Most members of the Council of Athabascan Tribal Governments live within the boundary of the Yukon Flats National Wildlife Refuge or very close to it, have used the lands and resources of the Refuge for most of their lives, as did their ancestors, and therefore feel very much a part of these lands.

How may the Self-Governance Act affect the Yukon Flats National Wildlife Refuge and other units of the National Wildlife Refuge System?
The Act would affect the Yukon Flats National Wildlife Refuge only to the extent negotiated in the annual funding agreement. The proposed agreement includes five activities at a total cost to the Service of $59,000. The annual funding agreement is a government-to-government understanding of the contractual responsibility on the part of the Council and the U.S. Fish and Wildlife Service. All of the elements of the agreement are negotiable, and the Service has the discretion to accept or decline the Tribe’s proposals for work elements in this and future agreements.

The Service anticipates beginning negotiations for a 2005 annual funding agreement about six months after this agreement is in place. Depending upon the success of the proposed agreement for calendar year 2004, the Council may be funded to perform additional activities on the Refuge, or perform more work in the existing project work descriptions. Whatever activities are funded to be performed by the Council in the future, all of the management decisions of the Refuge will be made by the Refuge Manager, including operations of the staff; management planning and decisions; determining whether activities on the Refuge are compatible with the purposes of the Refuge and the mission of the National Wildlife Refuge System; permitting of activities on the Refuge including hunting, trapping and fishing programs; and biological investigations.

The Self-Governance Act would affect the rest of the refuges within the National Wildlife Refuge System only to the extent that individual annual funding agreements are in the future separately negotiated between the seven Regional Offices of the U.S. Fish and Wildlife Service and Tribes with a special relationship with a national wildlife refuge. This agreement with the Council for work on the Yukon Flats National Wildlife Refuge will likely be the first in the nation for the National Wildlife Refuge System.

The decision making authority for the Refuge will always remain within the Federal purview by virtue of the Appointments Clause of the U.S. Constitution. The National Wildlife Refuge System Administration Act, as amended, provides that only the U.S. Fish and Wildlife Service may manage the National Wildlife Refuge System. Therefore, the Service may not give over any management responsibility for a national wildlife refuge to any other entity be it Federal, State, borough, county, city, or Indian Tribe.

How does this agreement affect other Alaskan’s ability to use the Refuges lands and resources?
The agreement will not affect the American public’s ability to hunt, fish, trap, view, or photograph wildlife, access the Refuge by traditional means allowed by the Alaska National Interest Lands Conservation Act, or use the Refuge for uses currently allowed or authorized to be permitted by regulations, as described in the 1987 Yukon Flats National Wildlife Refuge Comprehensive Conservation Plan, Environmental Impact Statement
and Wilderness Review, and in current Service policies. The Fish and Wildlife Service is not re-delegating any of its authorities to manage the Yukon Flats National Wildlife Refuge. The Council will provide information or other assistance to the Refuge Manager to allow for better and more efficient management.

The public notice states that the Service and the Council have reached an agreement. Why were these negotiations not open to the public?
The negotiations between the Service and the Council have been a government-to-government negotiation process that is spelled out by Federal regulations to which both parties must adhere. These regulations are in the Code of Federal Regulations, 25 CFR Parts 1000.160 -.182. If in the negotiations the Service declined to offer any activities to the Council, no tentative agreement would have been reached and there would be no need for public notice. While both the Service and the Council have now reached a tentative agreement which we believe is mutually advantageous, a final agreement will not be signed until we have carefully weighed public comments received during the 45-day public review following publication of the public notice, and incorporated any changes which may be warranted by those comments. Public comments will be accepted through March 29. If the Service receives a large number of negative comments on the tentative agreement, indicating significant public concern, public meetings will be held. After reviewing all public comments, the Service and the Council will have the option of either signing the agreement as it is now written, modifying it to address significant concerns, or renewing negotiations. If we then reach a final agreement, the Annual Funding Agreement would be signed by the Service’s Alaska Regional Director and the Council’s Chairman. After the agreement is signed, it is sent by the Secretary of the Interior to both the U.S. Senate and the U.S. House of Representatives. If neither of these entities object to the agreement, it is in effect 90 days after it is received by Congress.

Has this process met the requirements of the National Environmental Policy Act?
The Act does not apply to this process. The tentative agreement provides for the Council to do some of the Activities that the Service is already doing on the Yukon Flats National Wildlife Refuge or are routinely done on other national wildlife refuges in Alaska as part of normal refuge operations. These Activities have already been considered in the Yukon Flats National Wildlife Refuge Final Comprehensive Conservation Plan, Environmental Impact Statement, and Wilderness Review, implemented by a Record of Decision on December 29, 1987.

Will the Council have law enforcement jurisdiction over non-Natives hunting and fishing on the Refuge?
No. The tentative agreement does not address law enforcement. Nor would a final agreement. The State of Alaska and the Service maintain concurrent jurisdiction over criminal matters on Refuge lands and waters.

The proposed annual funding agreement states that the Service may fund the Council to perform additional activities by amending the AFA. What types of additional activities does the Service anticipate funding?
At this time we do not have any additional activities in mind. This provision was placed in the tentative annual funding agreement to provide some flexibility. Some of the proposed work is highly weather dependent, such as aerial moose surveys. If these cannot be performed, there may be alternate opportunities or we may want to extend the time frame. If additional activities are identified by the Service and the Council that could be performed effectively and efficiently by the Council, and within the Refuge budget, this provision provides the flexibility to fund that work.

This is a tentative, one year agreement. Will this agreement be repeated in future years? What do the Service and the CATG plan to do in the future?
We hope that this agreement will signify the start of a long cooperative relationship between the Service and the Council. However, the terms of any future agreements would be negotiated on an annual basis, and be based on the success of the preceding agreements. We have agreed to begin discussions on an annual funding agreement for the year 2005 about six months after this agreement takes effect. We could agree to do the same activities as in 2004, do more work on the same activities, or less. It depends on the Service’s budget outlook, the planned need for future work, the Council’s performance of the 2004 agreement, and the Council’s interests.

Does the Service anticipate funding similar annual agreements with other Tribes on other national wildlife refuges in Alaska?
The Department of the Interior regulations implementing Tribal Self-Governance, as authorized by Title IV of the Indian Self-Determination and Education Assistance Act, became effective on January 16, 2001. It is likely that the Service will receive requests from other Tribes for Title IV annual funding agreements, particularly in Alaska. Any agreements developed with other Tribes will be negotiated on a case by case basis and depend on the needs of the refuge, the funding outlook for the Service, and the ability of the Tribe to perform the proposed activity.

How will this agreement affect the Service’s negotiations with the Confederated Salish-Kootenai Tribes over management of the National Bison Range in Montana?
The Service and the Council’s agreement on activities to be performed on the Yukon Flats Refuge could provide a useful model for the ongoing negotiations in Montana. The mission of the National Wildlife Refuge System applies to all national wildlife refuges, and refuge policies and Departmental regulations are administered consistently across this System. However, each refuge has its own specific needs and purposes, and different tribes have different capabilities.

If the Service is willing to contract out some of its work, why doesn’t it advertise this as a competitive opportunity for all potential contractors?
The Service routinely reviews its operational needs to make the most cost-efficient decisions to accomplish work. The Service routinely contracts construction, specialized maintenance and repairs, printing, aircraft charter, and other services. When a Tribe requests to perform activities under the Self-Governance Act for an agency within the Department of the Interior, if the agency and the tribe reach an agreement, the law affords the bureau the discretion to include the programs or activities in an annual funding agreement on a non-competitive basis. (See 25 CFR 1000.128).

Where can I obtain a complete copy of the tentative annual funding agreement, including descriptions of the work to be performed by the Council?
The agreement and all attachments can be viewed on-line at the Alaska Fish and Wildlife Service website: http://alaska.fws.gov/current.htm. Public comments will be accepted through March 29.

Copies can also be obtained by contacting:

Refuge Manager, Yukon Flats National Wildlife Refuge
101 12th Avenue, Rm 264, Box 14
Fairbanks, Alaska 99701
Phone: 907-456-0407

Or

Refuge Supervisor, Northern Alaska Refuges
U.S. Fish and Wildlife Service
1011 E. Tudor Road
Anchorage, Alaska 99503-6199
Phone: 907-786-3555