National Park Service Does Face-Plant With New Rule on Gathering Plants
The National Park Service may have thought it was doing Native Americans a favor with a proposed rule that would allow them to gather traditional and medicinal plants in national parks, but there are not a lot of “thanks” coming out of Indian country.
To protect natural, cultural, and archaeological resources, the NPS has throughout the decades exerted strict control over activities that take place on the 84 million acres contained in the 408-area National Park System. The gathering and removal of plants and plant parts is high on the “prohibited” list, with the exception of certain native fruits, berries, mushrooms, and nuts. Save for those with rights reserved through treaties or individual statutes and agreements, no special waiver has been given to Native Americans, despite their historical and cultural connections to the park lands and their access to these lands before the regulations. That’s not to say all tribal people have allowed the rules to constrain their traditional practices—in fact, over the years many, even elders, have received citations for gathering within park boundaries.
The proposed rule, published in the Federal Register on April 20, 2015, would provide an exemption, though only to members of federally recognized tribes and just on park lands associated with each tribe. The rule would also create “an orderly and consistent process,” which would include tribes entering into individual agreements with NPS area superintendents, though the NPS regional director would have authority to approve or reject them.
To enter into an agreement, a tribe would have to submit a request that demonstrates its association with a park; identifies designated gatherers and explains how the designated gatherers were identified; and specifies which plants or plant parts will be gathered as well as where, when, and how (e.g., size and quantity) they will be gathered. Another hoop to jump through is an environmental analysis, conducted by the park superintendent, to gauge potential impacts of a tribe’s gathering activities.
The 90-day public comment period for the proposed rule, which closed July 20, generated 69 responses from federally recognized tribes and other indigenous groups and individuals. While many of the responses communicated support of a regulation permitting Native Americans to gather plants and plant parts in the parks, most pointed out issues with one or more aspects of each of the requirements.
Most who submitted comments had something to say about the authority vested in the park superintendents, the designated gatherers and limiting them to tribal members, and the disclosure of traditional information with no assurance that this information won’t be made public (sharing these details with anyone outside of the tribe is not customary—period).
In its formal comments to the proposed rule, the Indigenous Elders and Medicine People Council, a collective of indigenous spiritual leaders, wrote, “Our sacred relationship with these plants, and the ceremonies and customs connected to them, is an essential part of our spiritual way of life. … To place the Superintendent and/or Regional Director and/or designated person between the Creator and the Indigenous Peoples is a direct violation of our rights.”
Sherri Mitchell (Penobscot), an Indigenous Peoples’ law and policy attorney and director of the Land Peace Foundation, is concerned about almost all of the restrictions, but one of the most troublesome is the designated gatherers requirement. “There is no one individual in any tribal community that knows all of the traditional purposes of every plant or plant part in their region,” she said. “In a traditional context, our knowledge is shared by many individuals.”
Chief Arvol Looking Horse, spiritual leader of the Great Sioux Nation, reflected on the Wounded Knee massacre in 1890 and then told ICTMN, “Today, we are still getting massacred by words, by manmade laws. They [the federal government] are not respecting who we are as the original people of this land.”
The proposed rule is not acceptable to Bobby Cypress Billie either. A spiritual leader of the Original Miccosukee Simanolee Nation, Billie vowed. “Even if they come out with it, we are still going to maintain our way of life and our land,” he said.
Jeffrey Olson, a NPS public affairs officer, said via email that the comments on the proposed rule will be examined, analyzed, and addressed. During this process, “NPS can decide to alter the final rule to meet the concerns of the commenters, leave the rule the way it is, or, a mixture of the two. In the extreme case, the NPS can, as a last option, decide to pull the rule from consideration.”
Mitchell said, because the proposed policy sits in opposition to a widely recognized body of global policies and laws developed to protect the rights and heritage of indigenous people, she only sees one option: “The only appropriate step here would be to remove the prohibitions placed on indigenous people completely, not create new rules that allow restricted access that actually defeats traditional purposes.”