Back on April 27, I blogged about the newly published
draft National Park Service (NPS) regulation on tribal plant gathering in
National Parks (See http://crmplus.blogspot.com/2015/04/nps-plantmineral-gathering-regs-out-for.html).
I implied that the regulation was pretty good, and I assumed it was; after all,
my late wife had worked diligently for some 20 years to make it happen.
Well, I was wrong. It’s a dreadful regulation. Below are
the comments I filed yesterday with NPS. I hope others will read the thing and
comment too. Especially tribes, intertribal groups, Native Hawaiians, and their
supporters.
-----------------------------------------
May 30, 2015
Joe Watkins, Office of Tribal Relations and American Cultures
National Park Service
1201 Eye Street NW.,
Washington, DC 20005
Reference:
Draft tribal plant gathering regulations: RIN 1024-AD84
Dear Joe,
I am writing to comment on the draft NPS regulation published in
the Federal Register on April 20,
2015 concerning plant-gathering by tribes in units of the National Park System
(RIN 1024-ADF84).
I have followed the development of this regulation with
considerable interest over the years, and would like to regard its issuance as
a positive step in the development of mutually respectful relationships between
Indian tribes and the U.S. Government. Sadly – apparently due to late,
unexplained changes from earlier drafts – I cannot. Deficiencies in the
published draft include the following:
Deficiency #1: An agreement no longer
functions as a permit
A key feature of the draft regulation negotiated between NPS and
tribes over the last couple of decades was the provision that agreements
between tribes and parks would function as permits, authorizing
gathering by tribal members under tribal regulation subject to the agreement’s
conditions and NPS oversight. This feature has been removed from the published
draft, leaving tribes and their members subject to the requirement of 36 CFR
§1.6 that they obtain a separate permit for each gathering action.
In other words, where earlier drafts of the regulation provided
for tribes to regulate the activities of gatherers under the terms of their
agreements with NPS, the published draft has the tribes negotiate agreements
and then seek, or leave their members to seek, separate permits from the
relevant Park’s management.
One is left to wonder why in the world any sensible tribal
government would negotiate an agreement with NPS. What purpose would it serve,
particularly since a Park’s management would be under no obligation even to
consider its terms in reaching its quite separate §1.6 permit decisions? Any
tribal government that gives the matter much thought is, I think, likely to
throw its hands up in disgust and walk away, concluding – rightly – that its
ostensible trustee, the U.S. government, has played bait and switch once again.
One also has to wonder what has driven this change from the
earlier drafts. Whose oxen would be gored by not trusting tribal governments to
regulate the actions of their members, subject to the various controls placed
on the administration of agreements by the regulatory language? Where did this
change come from, and why was it made?
I strongly suggest that NPS return to the notion of the
agreement as a permit, whose terms will be administered by tribal governments
subject to monitoring by the relevant Park units and regional offices.
If NPS is not inclined to adopt this suggestion, I ask that it
explain its unwillingness to do so, providing whatever legal and/or policy bases
there may be for this disrespect for sovereign tribal governments.
Deficiency #2: Deletion of minerals
Earlier drafts of this regulation covered not only the gathering
of plants but the collection of certain minerals – specifically renewable,
naturally redeposited minerals like salt and clay, collected traditionally by
tribal members for personal consumption, religious purposes, and the creation
of various art and craft items. This provision has been deleted without
explanation from the published draft. Why?
Minerals like sand for sand painting, clay for pottery, and salt
are tremendously important in the traditional cultures of many tribes; they
occur in limited areas, often within National Parks. Their collection has
little likelihood of diminishing Park resources. The earlier drafts wisely
provided for their collection; the published one does not.
Again, my recommendation is to go back to the provision worked
out in earlier drafts. If NPS cannot bring itself to do this, I request that it
at least explain the reasoning behind the provision’s deletion.
Deficiency #3: Deletion of allowance for
minor commercial use
The earlier drafts carefully avoided implying that minor use of
gathered materials for “commercial” purposes was prohibited, and stressed in
prefatory language that such minor use was not prohibited. The published
draft has deleted all language relating to this issue. This creates the
potential for utterly unnecessary conflicts with tribes and their members who wish
to, say, sell a basket some of whose materials have been gathered from a park.
Such conflicts will be absurd wastes of time – as will the controls a tribe or
park will have to impose to prevent such “commercial” uses from taking place.
I request that NPS restore the allowance for small-scale and
incidental commercial use, or provide an explanation of its decision not to.
Deficiency #4: NEPA overkill
The published draft requires that an environmental assessment
(EA) be prepared on execution of each agreement, necessarily leading to a
finding of no significant impact (FONSI). This is unnecessarily burdensome on
both tribes and Parks. Given the miniscule potential for significant impact on
the quality of the human environment presented by small-scale plant (and
mineral) gathering by tribal members, with all the controls imposed by the
regulation, agreements with tribes should be categorically excluded from
detailed review under the National Environmental Policy Act (NEPA), subject to
the “extraordinary circumstances” provision of 40 CFR § 1508.4. Should an “extraordinary
circumstance” arise, of course an EA would be prepared in accordance with
standard NEPA procedures, hopefully but perhaps not inevitably leading to a
FONSI.
I request that NPS re-think its burdensome approach to NEPA
review, or explain its rationale for imposing such burdens on tribes and itself.
Deficiency #5: Failure to address other
authorities
Many locations where tribes and their members have traditionally
gathered plants (and minerals) for cultural purposes are – by virtue of their
being so used – traditional cultural places that may be eligible for inclusion
in the National Register of Historic Places (NRHP). Accordingly, entering into
agreements with tribes to regulate use of such places – arguably improving
their management at little or no cost to the government while respecting tribal
traditions – is consistent with the requirements of Section 110(a)(2)(B), (D) and
(E) of the National Historic Preservation Act (NHPA). It would seem only just
for NPS to take credit for this consistency. There may be some marginal
possibility of adverse effects on such locations that would require review
under Section 106 of the NHPA, which should also be acknowledged and addressed,
perhaps via a simple “program comment” under 36 CFR § 800.14(e).
Such locations, and the activities carried out there, often have
spiritual importance to tribes. Accordingly, the locations may be “Indian
sacred sites” as defined in Executive Order 13007. Since that executive order
not only directs agencies to avoid impacts on such sites but also to ensure
tribal access to them, the regulation – if its deficiencies are corrected –
would appear to advance the executive order’s purposes. Yet executive order
13007 isn’t even referenced in the published draft. Neither are the American
Indian Religious Freedom Act or the Religious Freedom Restoration Act, although
again, arguably, implementing the regulation (with corrections) would seem to
advance their purposes.
Finally, the published draft fails to mention executive order
12898 on environmental justice. Tribes have been subjected for centuries to
disproportionate adverse environmental impacts by being excluded from their
traditional plant and mineral gathering places. The draft regulation (if
corrected) would be a step toward relieving tribes of this burden, but the
draft as published maintains and exacerbates it.
I request that the above authorities be considered and addressed
in revising the draft.
Deficiency #6: Non-recognized tribes and
Native Hawai’ians
The published draft makes no provision for gathering by members
of tribes that are not federally recognized, or by Native Hawai’ians. I am
aware, of course, of the special relationship between the U.S. government and
federally recognized tribes. I also understand that the tribes consulted by NPS
in drafting the regulation supported limiting gathering under agreements to
members of federally recognized tribes. Nevertheless, this limitation may
create unnecessary and disproportionate adverse effects on tribes that are not
recognized but do constitute minority and often low-income communities, and on
Native Hawaiians in similar situations. Special attention to the environmental
interests of such communities is required by executive order 12898.
I understand that in California, where there are many
non-recognized tribes, arrangements have sometimes been worked out under which
recognized tribes in effect “stand in” for non-recognized groups having
traditional associations with areas of concern or cultural sensitivity. Surely
there should be ways to flex an improved version of this regulation enough to
allow a recognized tribe to permit members of a non-recognized tribe to collect
plants (and minerals) under the terms of its agreement with NPS.
Gathering by Native Hawai’ians certainly presents a different
problem, since there are no federally recognized groups to serve as
intermediaries. Since Native Hawai’ians still constitute a minority even in
Hawaii, however, and particularly given the recognized and acknowledged
injustice of our government’s overthrow of theirs, something should be done to
respect their interests in managing and using their plants and minerals.
Federal agencies including NPS have worked out ways to repatriate cultural
items to Native Hawai’ian organizations under the Native American Graves
Protection and Repatriation Act (NAGPRA), and Parks in Hawaii routinely consult
and coordinate with Native Hawai’ian organizations on other matters. Such
arrangements might serve as models for interactions regarding plants and
minerals.
I request that NPS at least consider relieving the
disproportionate environmental impact of its regulatory approach on non-recognized
tribes and Native Hawai’ians, and if it cannot bring itself to do anything
about the problem, explain why it cannot.
Relationship to Forest Service Regulation
NPS’s Federal Register
notice also asked for comments on how NPS’s rule might be better aligned with
the regulation recently published by the USDA Forest Service at 36 CFR 223.16.
The Forest Service’s regulation is admirably simple and
straightforward, and in contrast with the NPS effort seems reasonably
respectful of tribal interests. It suffers from many of the same deficiencies
as does the NPS draft (limitation to federally recognized tribes, failure to
address minerals, simplistic exclusion of commercial use), but these
deficiencies are understandable in the case of the Forest Service given the
specific authority under which it is issued. Refreshingly, in contrast with the
NPS effort, the Forest Service regulation does not drive tribes through a
two-step process of first negotiating an agreement and then – perhaps – getting
a permit.
The Forest Service regulation was drafted in response to
direction given it by Congress in the Food, Conservation and Energy Act of 2008
(the Farm Bill) authorizing it to provide trees, tree parts, and other plant
materials to tribes at no cost for traditional purposes. I suggest that NPS
consider the possibility that Congress’ action on the Farm Bill suggests a
congressional intent that the Federal establishment actually try to accommodate
tribal cultural needs, and rethink its approach accordingly. As to how the two
agencies might better “align” their respective regulations, I suggest that both
jointly consult with tribes and Native Hawai’ians to seek ways of arranging for
tribal access to plants and minerals on both National Forests and National
Parks in ways that impose minimum burdens on indigenous people.
Thank you for your attention to these concerns. If I can be of
any assistance to you in addressing them, I would be happy to do so.
Sincerely,
