New Rules Allow Tribal Members to Gather Plants on National Park Land
Wabanaki Legal News, Fall 2016
By James Mitchell, Esq.
In August, 2016, the National Park Service (NPS) changed its rules to allow certain enrolled members of federally recognized Indian tribes to gather and remove plants and plant parts from National Parks. To do so, tribal members need to obtain a special permit, and the plants collected must be “traditionally associated” with specific National Parks for “traditional purposes.”
Traditional associationis defined as “a longstanding relationship of historical or cultural significance between an Indian tribe and a park area predating the establishment of the park area”.
Traditional purposeis defined as “a customary activity or practice that is rooted in the history of an Indian tribe and is important to the continuation of that tribe's distinct culture.”
This rule is intended to respect and encourage distinct, tribal cultural practices and to help to reinstate or continue those practices on lands within areas of the National Park System, where those practices traditionally occurred, without causing a significant impact to the park.
Under the rule, a tribe that wishes to gain approval from the NPS to gather and remove plants or plant parts from a park area must submit an application. The tribe must provide information about its traditional association with the specific park area. The NPS must then determine that the tribe is in fact traditionally associated with the designated park area and that the tribe is proposing to gather and remove plants or plant parts within the park area for a traditional purpose. Permit requests for gathering activities that would adversely impact or impair the park will be denied.
Once the NPS determines that the requested gathering activity meets the requirements described above, it must make additional determinations before a special use permit will issue. These include:
o Before tribal gathering activities may begin, the NPS and the tribe must enter into a formal gathering agreement which is implemented by the issuance of the special use permit.
o The NPS will complete an assessment that finds no significant environmental impact will result from the proposed gathering activities.
o The NPS Regional Directors must approve each gathering agreement.
o The park Superintendent must be allowed to close park areas to gathering activities to protect environmental or scenic values or to protect natural resources if the gathering activities become unsustainable.
o The Superintendent must also be allowed to suspend an agreement or permit if terms or conditions are violated or if unanticipated or significant adverse impacts occur.
The required agreement between the NPS and the tribe must include the following:
· A description of the specific plants or plant parts that will be gathered.
· Specification of the size and quantity of the plants or plant parts that will be gathered.
· Identification of the times and locations at which the plants or plant parts will be gathered.
· Identification of the methods that will be used for gathering which will be limited to gathering by hand without power tools.
· Protocols for monitoring, gathering and removal activities, and rules about when NPS may intervene
The permits will also identify specific members of the tribe who are designated by the tribe to gather plants at a particular location within a park area.
The sale and commercial use of the gathered plants or plant parts within the National Park System will continue to be prohibited by existing NPS regulations.
Before these new rules were put in place, several tribes raised concerns. Some or all of these concerns could be addressed in future revisions of the regulation, including:
o The application requirements are too complex and need to be simplified to allow smaller tribes with small staffs to navigate the process.
o Any member of a tribe should be allowed to participate in gathering activities rather than requiring the tribes to provide the names of specific tribal members who may gather within the park.
o The complex and formal permit application process conflicts with traditional plant gathering practices, which are conducted primarily in private or with families and are based upon traditional knowledge.
o Tribes, not government officials, should monitor the gathering.
o The NPS may not have the ability to protect the privacy of qualified plant gatherers as they participate in associated, traditional ceremonies while gathering.
o There should be an exception to the rule against commercial use of plants for the manufacture of traditional American Indian handicrafts. (The NPS agrees with this request and will amend the regulation accordingly if it subsequently is interpreted to preventing such off-park commercial use.)
o The regulation might abrogate, diminish or infringe upon existing treaty rights held by tribes to gather plants within NPS areas.
These new rules may impact Maine tribes and bands, as Maine has lands protected by the National Park Service. Whether Maine’s native populations will claim traditional association with that land and show traditional use of plants found there remains to be seen. Whether land included in Maine’s newly-created National Monument is covered by the new rules also presents an interesting question. The National Park Service encourages interested tribes to apply for this special use permit. The NPS contact person for doing so is Joe Watkins, Office of Tribal Relations and American Cultures, National Park Service, 1201 Eye Street NW., Washington, DC 20005, 202-354-2126, firstname.lastname@example.org.