The Shifting Landscape of Ancestral Lands: Tribal Gathering of Traditional Plants in National Parks

Abstract

The National Park Service (“NPS”) acknowledges that Native American tribes have deep “historical, cultural, and religious” ties to the lands that the NPS was created to conserve. The national park system was established through the National Park Service Organic Act of 1916 (“Organic Act”) to “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” However, in the process of conservation, the new legal regime stripped away the historic uses of these ancestral lands from many Native American tribes. In most national parks, tribes could not gather traditional plants as it was deemed to contravene the conservation mandate. A few tribes were able to gather plants either through prior treaties, congressional acts, presidential proclamations, memoranda of understanding, or even by nonenforcement of the regulations. However, in June 2016, after persistent efforts by tribes, the NPS enacted a final rule that enables federally-recognized tribes to enter into agreements with individual national parks with which the tribe has a historic connection to gather traditional plants. This rule was opposed by environmental and watchdog groups that questioned the NPS’s authority to promulgate such a rule. This article begins by discussing the treaties, park enabling acts, and other agreements that give rise to tribal gathering rights within national parks. It next chronicles the evolution of NPS regulations and policy mindsets of NPS-tribal relations and how these mindsets affected tribal gathering rights. Following the section on historical regulations is an analysis of the 2016 final rule and criticisms thereof. This article concludes with a case study of the Eastern Band of Cherokee Indians, the first tribe to allocate funds for an environmental assessment, as required by the new rule, to gather sochan in the Great Smoky Mountains National Park (“GSMNP”), their relationship with the GSMNP, and how this struggle fits into the larger framework of tribal gathering rights.