On April 20, 2015, the National Park Service (NPS) published a proposed rule on “Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes.” 80 Fed. Reg. 21674 (copy attached). The proposed rule would authorize the NPS Superintendent of a park area to enter into an agreement with a federally recognized Indian tribe to authorize gathering and removal of plants or plant parts for traditional purposes. The deadline for filing comments is July 30, 2015.
The FEDERAL REGISTER notice acknowledges that “Indian tribes practiced their traditional harvests of plants and plant parts on or from lands that are now included in units of the National Park System long before the arrival of the European settlers.” Since 1983, however, such harvesting has been prohibited by NPS regulations, codified at 36 C.F.R. § 2.1(d), except where authorized by specific treaties or statutes. The notice explains that the basic purpose of the proposed rule is “to lift this prohibition and allow for gathering and removal of traditional plants or plant parts while ensuring there is no significant adverse impact to park resources and values,” and adds that the proposed rule “would also provide opportunities for tribal youth, the NPS, and the public to understand tribal traditions.”
The proposed rule would revise subsection 2.1(d) to provide that such gathering is also lawful if conducted in accordance with an agreement between the NPS Superintendent and a tribe. The requirements for such an agreement are set out in proposed new section 2.6. The negotiation of such an agreement would start with a request from a tribe. It would be subject to approval by the NPS Superintendent and concurrence by the Regional Director.
In order to qualify for such an agreement, a tribe would have to have a traditional association with the park and the proposed gathering and removal would have to be a traditional use of the park area. Given that most such harvesting has been prohibited since 1983, a tribe would presumably not have to show that the traditional practice has continued after that date.
Traditional association with and use of a park area is one of four criteria listed in the proposed rule for entering into an agreement. The Superintendent is required to make a determination that all four criteria have been met.
The second criterion provides that the Superintendent must “Analyze potential impacts of the proposed gathering and removal in accordance with the requirements of the National Environmental Policy Act, the National Historic Preservation Act, and other applicable laws.”
The third criterion requires the Superintendent to “Document a determination that the proposed gathering and removal activities will not result in a significant adverse impact on park resources or values.” Reading these two criteria together, in most cases NEPA compliance will require an environmental assessment (EA) and a finding of no significant impact. Tribes may be able to take a pro-active role in preparing an EA, pursuant to the Department of the Interior procedures for implementing NEPA. 43 C.F.R. part 46, especially § 46.320. With respect to NHPA compliance, a place within a park area where a tribe has traditionally harvested plants or plant materials would most likely qualify for the National Register of Historic Places as a traditional cultural property (TCP). Assuming such a place holds religious and cultural importance for the tribe, it would have a statutory right to be a consulting party for the NHPA section 106 process, which would have to conclude with a finding of no adverse effects. Of course, there may be other historic properties in the vicinity of the area proposed for the agreement, and adverse effects on any such property would also have to be avoided. In commenting on the proposed rule, tribes may want to seek clarification of these issues.
Tribes may also want in their comments to seek clarification regarding provisions for the treatment of sensitive information with confidentiality.
The fourth criterion cross-references a section of the NPS regulations governing permits in park areas. This is relevant because the rule proposes that an agreement be implemented through the issuance by the Superintendent to individual tribal members who are authorized by the tribe.
Please let us know if we may provide additional information regarding the proposed rule on gathering of plants or plant parts in National Parks.