"For the benefit and enjoyment of the people."

National Parks are Still The Best Idea We Ever Had

By Frank Buono

Editor's note: Frank Buono has worked in every aspect of national parks for almost 30 years, as a backcountry and law enforcement ranger, interpreter, fee collector, volunteer, and retired as deputy superintendent of Joshua Tree National Park. He instructed for the National Park Service for 20 years after that.

Who owns the national parks?

The answer used to be decisive – all Americans, and for all time. Indeed, our national parks, proclaimed Wallace Stegner, are “the best idea we ever had.” But some of our citizens regard the national parks as evidence of dispossession, places stained by the sins of a nation that is not their own and whose history they now repudiate.

In April 2019 an opinion piece appeared in TIME magazine that said, "When environmentalists laud ‘America’s best idea’ and reiterate narratives about pristine national park environments, they are participating in the erasure of Indigenous peoples, thus replicating colonial patterns of white supremacy and settler privilege."

There can be no more serious threat to a national institution than to claim it is corrupt. Is dismemberment of America’s national parks fair redress for the displacement that Native Americans suffered?

“As long as peace subsists.”

With these words, the 1868 treaty between the Bannock Tribe and the United States confirmed the right of the tribe “to hunt upon the unoccupied lands of the United States” constituting the hunting districts in the Wyoming Territory. In 1872, however, Congress established Yellowstone National Park, and in 1894 closed Yellowstone to the taking of birds or wild animals. Thus began the first conflict between parks and the aboriginal peoples of North America. The Supreme Court resolved the conflict quickly in Ward v. Race Horse, 163 U.S. 504 (1896), stating, in dicta, that when Congress created Yellowstone, the park was no longer a place in which the Bannock retained any treaty right to hunt.

From that beginning, the parks stood in sharp contrast to the rest of America. The parks were sacrosanct places in which all people, tribes and pioneers alike, were constrained from hunting, mining, logging, or occupancy. The universal sweep of this “contract” is one of the highest expressions of our democratic principles. The commercial interests of the Gilded Age and thereafter scorned the locking up of the treasured landscapes. Yet, few ideas reverberate more consistently through the decades of park history than that the parks shall be sanctuaries, to be enjoyed as such for, among other things, the "wild life" therein, except as Congress alone provides.

The United States has a special relationship with Americans who are members of Indian tribes, a relationship that takes many forms. But that relationship does not consign beneficial ownership of the parks and their resources to tribes except as provided for in a law or treaty.

A sizable lobby has grown insisting that hunting and gathering in parks is “traditional.” In the name of tradition, if not subsistence, the taking of wild animals in the national parks should be allowed. Even more, Indian tribes should be returned to their traditional homelands. But note carefully: One must be of the right “tradition” – as in, the descendants of the pioneers need not apply.

Speaking to this point in 1974, another distinguished historian, T.H. Watkins, noted that guilt cuts both ways.

“In fact Indian civilizations of the North American continent - like most civilizations on most continents in the world - had been in an almost perpetual state of flux since prehistoric times, constantly mingling cultures and languages, migrating, expanding, contracting, vanishing, fighting one another for hunting territory, agricultural territory, trade territory, or slave territory. It was a condition accelerated, but by no means instituted, by the appearance of Europeans on this continent.”

In addition to the normal disagreements over reservation and park boundaries in Grand Canyon, Glacier, and a few other parks, the National Park Service also faced increased demands for land. In February 1999, with Interior Department blessing, the NPS announced an agreement to create a small reservation for the Timbisha Shoshone within Death Valley National Park. Congress, acting on a 1999 NPS-Timbisha recommendation, designated in Death Valley 700,000 acres as a “Natural and Cultural Preservation Area” where the tribe could co-manage the lands but not engage in hunting.

Assistant Secretary of the Interior Don Barry declared that year in the Los Angeles Times that the Timbisha agreement comprised a “new template on how to deal with Native Americans in the [national] parks.”

The “new template” could slowly remake parks into quasi-Indian reservations. It is now the law, of course, but is this good history or policy? The Timbisha were a small population with an enormous range, who by no means stayed in Death Valley on any permanent basis (they were mostly present in winter months). If the government has said to loggers, miners, settlers and grazers that their “traditional” activities must end, why is this not being said to all Americans? Indeed, if it’s fair using history as a club, Native Americans may owe significant reparations of their own.

Ask the Shoshone, for example, who held Glacier before the Blackfeet dispossessed their ancestors.

Congress applied a “new template” in December 2020, transferring the National Bison Range in Montana, an original unit of the national wildlife refuge system (1908), to the Salish-Kootenai Tribe. Might a similar treatment be in store for some areas of the National Park System?

Next to the land, the greatest threat to the parks as we know them is taking park resources. Congress specifically provides for Indian taking of resources in a handful of areas. Wupatki National Monument in Arizona is not among them. In May 1999 Hopi Indians arrived at Wupatki to take golden eaglets for a religious ritual that culminates in the eagle's death. No tribe had ever sought to take eagles from a park under an Eagle Act permit. NPS regulations do not allow this.

So, the NPS professionals, from the park superintendent to the NPS director, denied the request, only to be overturned by the political appointees in the Interior Department. The immediacy of Interior’s action would again appear to speak of politics, not good history or law. Simultaneously, Interior was being condemned in court for mismanagement of Indian funds and the failure to turn over critical documents. Yet, much more than eagles at one national monument was at stake.

Claims of treaty rights to hunt in parks have been defeated in federal courts over the last decades in a number of parks. Tribes then pursued a different approach. They and their allies asserted that the 1978 American Indian Religious Freedom Act (AIRFA) exempted tribes from Park Service regulations that protect plants and animals if such taking is religious. In 1983, the NPS officially rejected the notion that AIRFA repealed NPS prohibitions on the taking of wildlife and other resources from parks.

On its way out the door in January 2001, the Clinton administration slipped a "midnight" special regulation under the door of the incoming Bush administration – allowing the Hopi to take the eagles in Wupatki. Appearing in the Federal Register on the first day of the Bush presidency, the special regulation blazed new ground. It was the first federal regulation ever proposed based upon the newly-enacted Religious Freedom Restoration Act (RFRA) of 1993. The clear implication was that the neutral and broadly applicable park rules that protect park wildlife did not create a compelling governmental interest powerful enough to incidentally interfere with the Hopi free exercise practices.

Those possessed with zeal to correct the past, often do not grasp how far and wide they cast the net to drag in one fish. 

Had this logic prevailed, in the effort to allow the Hopi's take of eagles, any religious believer, Indian or non-Indian alike (RFRA is not an "Indians only" law!), could argue for an exemption from the neutral and generally applicable rules that protect the parks because the rules may incidentally burden their First Amendment rights. The Bush administration allowed the midnight proposed special rule to die quietly.

Ten years later, the NPS director during the Obama administration declared in a meeting with the Eastern Band of Cherokee on July 16, 2010, that the NPS laws and regulations that protect park resources from Indian religious and traditional gathering were "wrong." Ever since the very first NPS service-wide rules, adopted in 1936, and reiterated in 1983, the NPS, in light of AIRFA, reaffirmed the protected status of park resources. No director ever proclaimed, without benefit of court order or congressional enactment, a duly-adopted NPS regulation as "wrong." The moral righteousness of the visionary few is superior to law.

And so, in 2015, the NPS discovered that conserving Indian Tribal cultural folkways was now found in the Organic Act of 1916. The NPS reversed the “wrong” regulations to allow the gathering of plants. If this rationale were correct, the day will come when that logic will support taking of park animals.

Some tribes have sought to make parks into private religious preserves where other Americans should be excluded, in varying degrees, from that which all Americans own. The Indians lost their claim in 1980 that Rainbow Bridge National Monument should be periodically closed to non-Indian visitors because it was a religious site. Despite this history, an NPS manager at Devils Tower National Monument in Wyoming attempted in 1995 to placate such demands, believing that the NPS can use its authority to coerce “respect” for Indian religion, as if respect is ever gained by compulsion. While the Park Service required permittees who lead guided climbs to not do so in June on behalf of protecting the Indian Sun Dance, a federal court in Wyoming in 1996 found that the NPS action violated the Establishment Clause of the First Amendment. Such conduct by an NPS official is almost incomprehensible. Few violations could be more serious.

But for some, sincere motivation trumps the First Amendment. The NPS then wisely retreated to recommending only a voluntary restraint by visitors during June to Devils Tower. The courts have continued to be consistent about this issue. In June 2009, the Supreme Court refused to hear claims at the San Francisco Peaks in Arizona that would compel the halt of development of federal lands because the lands are sacred to Indian Tribes. The central conclusion of the courts is that the parks (and other federal lands) cannot become government-managed religious shrines; that the Park Service cannot compel American citizens to conform their conduct to the religious necessities of other Americans.

Harsh as this may sound, it is one of the compromises made necessary by communal life in a diverse nation. The past is beyond punishment or redemption. We face the reality that there are 270 million more Americans since the frontier closed in 1890. We have said of our national parks that all of us will be dispossessed. We agree to it. We look forward to it, because that is the only system of strict preservation that can possibly work.

There are many Americans, of every racial and ethnic group, who can point to past wrongs and may claim correctly that the national parks left them out. While our park system must tell the most accurate story of all its citizens, compromising the parks as an act of contrition for Indian Tribes or any other group of displaced or wronged Americans does justice neither to the past nor the future. The parks are held by the citizens of the United States in common and belong to no one group in particular.

Sacrificing the parks to redress the wrongs of the past will succeed only in wronging the future. It remains, as Wallace Stegner said, “the best idea we ever had.” Then hands off the national parks, unless the motive, as with the history, rises beyond guilt to a gift for all generations.