“Forage”- Ahead: Tribes Permitted to Gather Plants from National Parks

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By: Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

Effective August 11, 2016, the U.S. Department of Interior authorizes the National Park Service to enter into government-to-government agreements with federally recognized Tribes to allow tribal members to gather and remove plants or plant parts from national parks and monuments for tribal or cultural uses. [Link to the rule here]

In the agreements, Tribes must explain their traditional connections to a particular park or monument, and show that such connections predate the park’s establishment. Tribes must further identify the specific plants that will be gathered, in what quantities the plants will be collected, and what individuals may conduct the foraging activities. Some Tribes are worried that the mandatory informational disclosure to the public agency might lead to undue public documentation of traditional religious practices, and harassment of tribal members. However, in many instances, the protection of national park/monument status has maintained some of the best remaining populations of traditionally-used plants.

For each request, the National Park Service must also conduct an environmental assessment to determine the impact of the tribal plant gathering on park resources, as this is a notable departure from prior directives to “leave only footprints, take only pictures.” A “no significant impact” determination, declaring that the tribal plant gathering will not have a negative impact on a particular park or monument, must be reported in order for a permit to be issued.

Aside from the criticism mentioned above, the new rule is a good step forward in supporting and respecting the continuation of the unique cultural traditions and practices of American Indians. Years of studies in the field of ethnobotany and traditional plant management have shown the benefits of traditional gathering methods used by many tribal members familiar with the specific harvest and cultivation techniques of their regions. Far from being “negative impacts,” these methods have proven to be effective at ensuring plant conservation, replacement, and prosperity.

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.