A new National Park Service policy to greatly involve Native Americans in natural resource decisions in parks has some wondering if it could lead to tribal hunting seasons in Yellowstone and other parks/NPS file

Editor's note: This updates with comments from Professor Robert Keiter, the Wallace Stegner Professor of Law, University Distinguished Professor, and founding Director of the Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah.

The National Park Service has moved to strengthen "the role of American Indian and Alaska Native Tribes, Alaska Natives entities, and the Native Hawaiian Community in federal land management," a development Park Service Director Chuck Sams said "will help ensure tribal governments have an equal voice in the planning and management" of the park system.

Interior Secretary Deb Haaland, an enrolled member of the Pueblo of Laguna in New Mexico and the first Native American to serve as Interior Secretary, and Sams, an enrolled member, Cayuse and Walla Walla, of the Confederated Tribes of the Umatilla Indian Reservation in southeastern Washington and northeastern Oregon, have worked to see more Native American involvement across the public lands, particulary when it involves Traditional Ecological Knowledge (the on-going accumulation of knowledge, practice and belief about relationships between living beings in a specific ecosystem that is acquired by Indigenous people over hundreds or thousands of years through direct contact with the environment, handed down through generations, and used for life-sustaining ways--NPS) 

The decision to establish a formal policy supporting "co-stewardship of national park lands and waters through working relationships with American Indian and Alaska Native Tribes, relevant Alaska Native entities, and the Native Hawaiian Community" is perhaps the biggest step they've taken in that direction. 

In a policy statement issued Tuesday, the Park Service said it was inviting tribes and the Native Hawaiian Community to be more involved in stewarding natural resources in the National Park System.

“All national parks are located on Indigenous ancestral lands and this policy will help ensure tribal governments have an equal voice in the planning and management of them,” Sams, who was not made available to discuss the new policy, said in the release.

“I have been an advocate for co-stewardship of federal lands for more than 27 years and I am pleased to see a national emphasis placed on this necessary work," Sams added in the release. "Through increased and collaborative engagement with tribes, Alaska Native entities, and the Native Hawaiian Community, we will make better land-management decisions, acknowledge and hopefully heal some deep wounds, benefit from Traditional Ecological Knowledge, and better interpret the history of the lands we administer and all the plants and animals that live in them.” 

The release said "[C]o-stewardship is a broad term that includes formal co-management (through legal authorities), collaborative and cooperative management (often accomplished through agreements), and self-governance agreements (including annual funding agreements). "

A section of the nine-page policy statement said:

To increase opportunities for Indian and Alaska Native Tribes and Native Hawaiians to fully participate in Federal decision making and to safeguard their interests, the NPS will strive to engage in co-stewardship where:

1. Federal lands or waters, including wildlife and its habitat, are located within or adjacent to an Indian or Alaska Native Tribe’s lands; or
2. an Indian or Alaska Native Tribe has subsistence or other rights, including treaty-reserved rights, or interests in Federal lands or waters even when that Indian or Alaska Native Tribe’s lands are not adjacent to those Federal lands or waters; or
3. the Native Hawaiian Community has rights or interests in those Federal lands or waters.

Another section states that, "[T]he NPS will give due consideration to tribal recommendations and Indigenous knowledge in the planning and management of Federal lands and waters. To the maximum extent practicable, the NPS will incorporate tribal, Alaska Native, and Native Hawaiian forest land, agriculture, traditional food gathering and propagation, access to inholdings, and range land management plans in its planning efforts."

While Sams told USA Today on Tuesday that superintendents across the system were "very hungry" to develop stronger relationships with tribes, the policy did draw some concern from superintendents, who privately questioned whether they had the authority to enter into such agreements without specific direction from Congress.

There are some units of the National Park System with such specific authority in their enabling legislation, such as Canyon de Chelly National Monument in Arizona, Grand Portage National Monument in Minnesota, and Big Cypress National Preserve in Florida. And in the Park Service release, the agency noted that it was "committed to identifying and increasing co-stewardship through opportunities like these:

• Acadia National Park has been involved in a multi-year project with the Wabanaki Nations of Maine on traditional gathering of sweetgrass within the park. The interdisciplinary work focuses on Wabanaki stewardship approaches through centuries of learned Indigenous knowledge, as well as cultural protocols to assert Indigenous sovereignty within natural and cultural resource management on ancestral lands. This research project aims to provide a template of culturally appropriate engagement between Native American gatherers and national parks. The results of the project have proven how effective incorporation of Indigenous knowledge can be, how plant gathering has a positive impact on the plant colonies when gathered in a culturally appropriate traditional manner, and how beneficial it is to include this knowledge at the initial stages of a project.
• Statue of Liberty National Monument and Ellis Island have cooperative agreements in place with the Stockbridge-Munsee Community Band of Mohicans, the Delaware Tribe of Indians, and the Delaware Nation. The agreements were critical pieces of the park’s efforts to greatly improve visitor experiences on Liberty Island and Ellis Island. In addition to increasing access to park areas and improving security screening, Tribal consultation resulted in a project to beautify Liberty Island through plantings and landscape changes.
• Mount Rainier National Park is currently collaborating with the Nisqually Tribe to publish a report on the results of five years of traditional plant gathering research on three species traditionally harvested by Nisqually tribal members on Mount Rainier. It will offer summary considerations and recommendations for administering traditional plant gathering activities in a manner that minimizes impact to harvested plants and associated plant communities. Furthermore, consultation with the Cowlitz Indian Tribe and Yakama Nation helped develop the Ohanapecosh Visitor Center exhibits to give visitors historical and contemporary context of the traditionally associated Taidnapam."

What remains to be seen is how the policy statement is implemented on the ground in the parks. The Tribal Self Governance Act passed by Congress in 1994, which authorized the Interior secretary to enter into funding agreements with tribes that cover programs, services, functions and activities of the Interior Department other than those of the Bureau of Indian Affairs, prohibits agreements that would have tribes perform responsibilities that are "inherently Federal."

Section 403(k) of the act also prohibits agreements "if the statute establishing the existing program does not authorize the type of participation sought by the Tribe." 

A similar co-stewardship policy for the Bureau of Land Management, also announced Tuesday, contained language stating that, "BLM cannot cede to a Tribe any inherently Federal function or otherwise exceed BLM’s legal authority, which generally prohibits the BLM from ceding complete decision-making authority over Federal lands to a Tribe." (Emphasis added.)

The Park Service policy statement did not include that specific language.

Jenny Anzelmo-Sarles, the Park Service's chief spokesperson, said Wednesday in an email that "[U]nder the Act, a self-governance tribe can administer any non-[Bureau of Indian Affairs] program, service, function, or activity that is administered by the Department of Interior including those that represent special geographic, historical, or cultural significance to the tribe."

She also said that, "[T]he new NPS policy cements and expands existing NPS policies (like the 2006 management policies) and practices related to co-stewardship and advances co-stewardship of public lands as a matter of expected business practice. The NPS has been ahead of the curve of other federal agencies in coordinating with tribal nations, however this new policy places a greater emphasis on working beyond the traditional framework of consultation as equals in planning and management."

Robert Keiter, the Wallace Stegner Professor of Law, University Distinguished Professor, and founding Director of the Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah, said Wednesday afternoon that Sams' policy closely follows a Secretarial Order that Haaland signed in 2021 and which addressed the government's responsibility to "protect the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes, including the Native Hawaiian Community."

"Both of those orders are couched in language that certainly seems to preserve the federal land management agencies', or in this instance, the Park Service's, final decision-making authority when resource management issues that are of interest to the tribes come up, that the tribes are in a position to, and the Park Service's directed to, have some consultation with them in making a final decision as to which way to go," said Keiter. "The agency retains that final decision making authority. Even language in the code stewardship section [of the policy document] recognizes that there are limitations on how far the Park Service can go in the role that it grants to tribes, or for that matter, any other governmental or other entity."

At Public Employees for Environmental Responsibility, Jeff Ruch noted that the Park Service, in announcing the new policy, made "no mention" of following the National Environmental Policy Act in implementing the policy.

"Are agreements that affect management of park resources subject to NEPA? I would think so," Ruch, PEER's Pacific director, said in an email. "There is also no mention of public consultation. Is the public shut out of any new policy development? Do the tribes have superior rights than the public?"

Whether the policy would lead to tribal hunting seasons in the parks remains to be seen. Though it does state that "the NPS is required to honor its treaty and trust responsibilities to protect tribal interests," Anzelmo-Sarles said the Park Service's 2006 Management Policies, which govern superintendents' on-the-ground actions, give the agency discretion to deny hunting not specifically mandated in a park.

Furthermore, hunting "may take place only after the Service has determined that the activity is an appropriate use and can be managed consistent with sound resource management principles," read the Management Policies. "Hunting and trapping, whether taking place as a mandated or a discretionary activity, will be conducted in accordance with federal law and applicable laws of the state or states in which a park is located."

Yet Tom Wadsworth, a game warden for the Shoshone-Bannock tribes, maintains the Fort Laramie Treaty of 1868 reserved tribal rights to hunt in Yellowstone to this day. Speaking recently to tribal members gathered in the park, he added that "I want y’all to realize that hunting doesn’t just mean going out and hunting animals. It also means fishing, it also means gathering — we did not have a word in our language to differentiate between those things," according to a story in WyoFile, a nonprofit news organization in Wyoming.

The article also quoted John Washakie, an Eastern Shoshone Business Council member and historian, who said, “I think what we’re asking for is to allow us to tell our story, but also allow us to have access. Give us access. We won’t disturb things, we won’t bother things. We’ll just take what we need.” 

Mike Murray, chair of the Coalition to Protect America's National Parks, wasn't familiar with the 1868 treaty, but said he could "imagine there could be other instances in which current park management practices do not conform with treaty rights from the mid-to-late 1800s and it will require considerable legal review and negotiation to determine the appropriate interpretation and resolution of applicable authorities."

Concerns voiced over tribal involvement with park operations were heightened in April 2021 by an article in the Atlantic magazine that called for national parks to be returned to tribes.

"Some of this is ridiculous," George Wuerthner, who has been studying Yellowstone for nearly 50 years and has published published 38 books on national parks and other environmental issues, said Wednesday of the new policy. "It's a creeping attempt to gain control of the parks. For instance, where do the Nisqually have to gather 'traditional' plants in Mount Rainier or [the Wabanaki] sweetgrass in Acadia? The same plants are growing on [Forest Service] lands surrounding the park. There is no need to gather them in Rainer.

"And shouldn't we have places where you can't gather plants, hunt wildlife or whatever? It's the same argument made by hunters who oppose new parks because they can't hunt there when 99 percent or whatever the number may be of the public and private lands are open to hunting," he said. "This is a threat to all wilderness and parks in Alaska. And no one is protesting. This is a big deal. A really big deal. And what do we have from conservation groups? Silence. In a sense, these groups are culpable in the dismantling of our parks and other protected areas. I do not think I exaggerate."