National Park Service finalizes rule for tribal gathering of plants

Interior Secretary Sally Jewell speaks with Native youth at the mid-year conference of the National Congress of American Indians in Spokane, Washington, on June 29, 2016. Photo from NCAI Youth / Twitter

Members of federally recognized tribes will be able to gather plants from National Park Service facilities under a rule finalized by the Obama administration on Wednesday.

Existing regulations allow for the gathering of fruits, berries, nuts or unoccupied seashells by the general public. But they do not address plant gathering by tribes except where provided by a specific law, treaty or agreement.

The new rule, which Interior Secretary Sally Jewell announced at the mid-year conference of the National Congress of American Indians, changes the situation. Tribes will soon be able to negotiate government-to-government agreements for their members to gather and remove plants or plant parts from national parks and national monuments.

"The changes to the gathering rule support continuation of unique cultural traditions of American Indians and support the mission of the National Park Service," Director Jonathan B. Jarvis said in a press release. "This also respects tribal sovereignty and the government-to-government relationship between the United States and the tribes."

The rule was first announced in April 2015 and the National Park Service said tribes responded favorably. But the public wasn't as excited and the comment period was extended last fall in order to solicit additional views.

As a result, some changes were made to the original proposal. The most significant requires the agency to prepare an environmental assessment before entering into an agreement with a tribe. A finding of no significant impact must also be made to ensure that tribal gathering won't negatively impact a particular park or monument.

According to the National Park Service, the rule "will ensure that any gathering and removal activities authorized by the rule will not result in unacceptable impacts to, or impairment of, park resources or values."

The El Malpais National Monument in New Mexico. Photo from Chackerman / Wikipedia

Under the rule, a tribe can submit a request for an agreement that explains its traditional connections to a particular park or monument, which plants will be gathering, who will be gathering them and under what conditions. The superintendent of the facility will have 90 days to respond and initiate discussions before moving forward.

As part of the process, the superintendent will be required to consult other tribes with connections to the monument or park or those with treaty rights or other gathering rights, according to the rule.

All agreements are subject to the approval of the superintendent, provided that the plant gathering passes the environmental review process. If the superintendent disagrees, appeals will go to the regional director in the area.

Even though tribes generally supported the rule, several raised questions about the information that is required as part of an agreement. For example, the tribe must provide the "Identification of the times and locations at which the plants or plant parts may be gathered and removed" as well as the names of who will be doing the gathering.

As one example, the Hualapai Tribe of Arizona said the disclosure of such information to a public agency could lead to the harassment of those involved. "This would be particularly troublesome in situations in which the gathering is a religious practice," a letter signed by Loretta Jackson-Kelly, the director of the Hualapai Department of Cultural Resources, stated.

In another letter, Chairwoman Virginia Cross of the Muckleshoot Tribe of Washington said the detailed requirements were overly "burdensome." But the National Park Service kept the provision in the rule and said they will help with the environmental review process.

The agency also vowed to take steps to protect "sensitive" or "confidential" information. "For example, in some circumstances NPS may be able to use identifiers other than personal names to designate tribal members who are authorized to gather plants or plant parts," the final rule reads.

The rule is being sent to the Federal Register for publication. It will become effective 30 days following its appearance there.

Federal Register Notices:
Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes-Reopening of Public Comment Period (August 12, 2015)
Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes (April 20, 2015)

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