Regulation on Native American Plant Collection

 

 

 

August 9, 2016
Director Jon Jarvis
National Park Service
1849 C St NW
Washington, DC 20240

Subject: Regulation on Native American Plant Collection

Dear Director Jarvis,

The purpose of this letter is to set forth our concerns about the final rule regarding gathering of certain plants and plant parts by Federally recognized Indian tribes for traditional purposes. As you know, the Coalition offered substantial comment on the proposed amendments that were published in the Federal Register on April 20, 2015. In those comments we supported, in concept, the policy goal underlying the proposal. However, we opposed the proposed rule for many reasons, including lack of statutory authority.

Again, we commend the concept that parks should accommodate, as reasonable and within the law, traditional practices of associated Indian tribes. But we are also realists. While the final rule is better in some respects than the proposed rule, our many “voices of experience” tell us that, absent the most rigorous research, negotiation, planning, inventory, enforcement, and monitoring, the outcome of this new regulation will be impairment of park resources.

For now, we’ll set aside our position that NPS does not have authority to allow the prescribed gathering activities by virtue of regulatory amendment as opposed to change in the law. Perhaps a Federal Court will one day address that question.

The rationale set forth in support of the Final Rule seems filled with a utopian vision, one that suggests easy agreement among groups and governments with very different history, religions, values, perspectives, goals, even laws. Fitting reality into this idealism is now delegated to park managers, and passed to future administrations. Let’s look at just a couple of the challenges that they will face.

1. Amending the regulation establishes the precedent that rule making is the way to compromise long-standing statutes that have formed the most valuable and enduring backstop for protecting park resources. It is inevitable that some future administration will seize upon this precedent to seek additional amendments and quite possibly enact regulations that expand upon the precedent set by this one. We don’t know what group will seek similar recognition to “take” park resources. We don’t know what types of plants, wildlife, fish, cultural remains or historic objects they may seek title to. We don’t know what kinds of traditional use they will cite in their arguments. We do know that, now, it will be more difficult for the NPS to say no.

2. Section 2.6 (f)(ix) of the new rule provides for plants taken under this amendment to be sold outside the Park, authority for commercial exploitation almost unprecedented in NPS history. Given likely growth of unregulated markets, the incentive to poach certain plants inside parks has now significantly increased.

Perhaps the best way to focus on the challenges ahead is by looking at one of the parks where this new authority will have significant impact – Great Smoky Mountains. Let’s begin with mixed messages. In 2004, acting on a request from the Park, John Coleman, Office of the Field Solicitor in Knoxville, wrote an opinion concluding that “because the collection of ramps or other plant species by the Cherokees is not authorized by federal statute or treaty rights, it is our opinion that the Great Smoky Mountains National Park does not have the authority to enter into an agreement that allows them to collect ramps or other plant species within the bounds of the Park.” Then, in July 2010, you were quoted as saying at a meeting in Cherokee, NC that the CFR regulation regarding collection of plants and plant materials was “just wrong.”

To narrow this “case study” even further, let’s focus on just one plant, the ramp, a species of onion that is highly valued as a food source by both Native Americans and European settlers throughout the Southern Appalachians. Park managers and law enforcement rangers have, for many years, tried to protect this plant within park boundaries, with mixed results. And substantial efforts have long been made to work with the Eastern Band of the Cherokee Indians (EBCI) in response to their wishes to collect ramps within the Park, with limited success.

• EBCI members place high value on the ramp, for both personal and commercial purposes.
• Ramps have been virtually depleted within the Qualla Boundary of the Reservation for a number of years due to over-harvest and take methods.
• Despite best efforts by the park law enforcement staff, thousands of ramps have been harvested illegally in the Park. As many as 6,000 ramp plants have been collected illegally at one time, illustrating the commercial aspect of such poaching.
• The Park offered, in writing on several occasions, to work with the EBCI to restore ramps within the Qualla Boundary. In each instance, such requests were either ignored or refused.
• During a period when tribal members were allowed to take ramps in certain locations within the Park (before the Superintendent determined that such collection was not legal and banned it), there was discussion of a joint monitoring program; however, no action took place.
• The Park sought to identify traditional collection areas within the Park; however, EBCI members were reluctant to share such information. Tribal legal counsel indicated that locations were sacred, and thus their disclosure was not required.
• In his opinion of 2004, John Coleman wrote that “political and cultural considerations aside, the Eastern Band of the Cherokee Indians have no inherent legal rights separate and apart from the citizenry at large…Their legal status has been historically problematic.”

The lesson of this limited case study is that the gap between the idealism reflected in the amendment and the reality of a parks limited capacity to manage and protect resources, will be challenging if not impossible to bridge. The new rule provides greater leverage and bargaining power to those who want to take park resources. Moreover, there is no evidence that NPS analyzed the full range of potential relationships between Native Americans and park managers regarding the potential outcomes of this amendment. We can only hope that in some park areas, the gap between idealism and reality will be less than at the Great Smoky Mountains, and agreements can be reasonably achieved and implemented that accommodate the goals of all parties.

We believe that NPS has significantly underestimated the threat to park resources created by this amendment. For this reason, we urge the strongest possible guidance and support from national NPS leadership to assure that park managers limit the scope of plant removal, implement rigorous and appropriate application of NEPA guidelines, and assure that parks have the capacity to carry out the research, monitoring, and enforcement essential to prevent impairment of park resources.

Sincerely,

 

 

Maureen Finnerty, Chair
Coalition to Protect America’s National Parks

cc: Joe Watkins, Office of Tribal Relations and America Cultures, WASO