European colonization inexorably and instantly changed Native land sovereignty and the relationship Native people have to their homelands. Many people think of our wild and natural spaces as “untrammeled” or unaltered wilderness, despite the fact that Native people have been living here for thousands of years. This concept of wilderness has been intentional, sometimes fluid, and has deeply influenced National Park Service (NPS) policies towards co-management and co-use of our National Park system lands in the United States (Spence). National Park system policies have excluded Native Americans from sovereignty over and use of their lands through exclusion and disenfranchisement, which has created a divergence between how land has been managed for thousands of years and current NPS policies (King 483).
By allowing tribes and native management a legitimate seat at the table, we will be able to diversify and optimize our future plans for land management. Modern laws such as ANILCA, TSGA, ISDA, NHPA, and AIRFA have encouraged the NPS to recognize this and create partnerships with tribes; however, these laws are still largely voluntary on the part of the NPS and tribes have little true power if the NPS chooses not to work with them. The NPS is currently in the process of grappling with how to properly integrate tribes into management processes; the agency still has a long way to go as far as properly recognizing both the harm that their policies have caused – and continue to cause – and the benefit of giving tribes agency over traditional lands.
Two pre-colonial laws shaped early European authority and claims to land, influencing how we view our wilderness and National Parks today. The first originates from ancient Roman law, and the second from a 1493 papal bull (a legal decree written by the pope). Both are part of the common law, law inherited from customs or established through judicial precedent rather than congressional statutory authority. Ancient Roman law had several legal classes for land, the most important of which for the creation of National Park system was res nullius, “property of no-one.” Res nullius encompasses land that has not been claimed yet or has been abandoned. Occupatio of res nullius, or the claiming of such land as private property, is done primarily through taking, claiming, and use of unoccupied land (Adams 6-7). Native people had inhabited the land for millennia, yet European authority to claim land in the New World as res nullius was decreed through the Inter Caetera by Pope Alexander VI in 1493 (Pope Alexander VI). This papal bull established the Doctrine of Discovery, which was the religious, legal, and political justification for colonization of the New World. Through this bull, the Pope demarcated all lands in the western hemisphere as open for colonization by Spain – expressly including those occupied by Native Americans. Since they were not Christian and therefore not considered “human” or able to claim land, it effectively categorized the Americas as res nullius (Doctrine of Discovery). Other European countries such as England later co-opted this papal authority.
It’s important to understand these early laws because they had a huge influence on the creation of the National Parks and tribal sovereignty. The Doctrine of Discovery was an explicit inspiration for Manifest Destiny and the Monroe Doctrine – both American claims to lands in the west – and was brought into common law by a series of U.S. Supreme Court cases known as the Marshall Trilogy. These three cases, named after Supreme Court Justice John Marshall, established the federal government’s relationship to tribes and authority over the land they occupied.
- Johnson v. McIntosh (1823) – Settled a dispute between two men who claimed to own the same land. Johnson had purchased the land from the Illinewek and Piankeshaw tribes, and McIntosh had received a patent for the land from the United States government. It was ruled in favor of McIntosh and established that tribes did not outright own their land to sell it. Only the federal government had that authority, integrating the Doctrine of Discovery into U.S. common law.
- Cherokee Nation v. Georgia (1831) – Cherokee Chief John Ross tried to establish his tribe as a foreign nation to protect it from state laws in Georgia. The Supreme Court established tribal sovereignty and the “doctrine of federal trust responsibility” with this case, ruling that tribes were “domestic dependent nations” distinct from both states and foreign nations. The relationship between the federal government was like that of a “ward to a guardian” and in exchange for the taking of tribal land, the government was responsible for protecting tribal nations and resources in trust.
- Worcester v. Georgia (1832) – Established that only the federal government, not the states, have authority over native nations, and reaffirmed the sovereign nature of tribal governments. (Wiseman)
The relationship of the federal government, American people, and tribal nations to western lands were all shaped by the decisions in the Marshall Trilogy. Native tribes did not own their land or the wildlife on it and were instead nations dependent on the federal government. The land was res nullius in a legal sense due to the Doctrine of Discovery. Native communities were also devastated by European diseases, which killed around 50 million or up to 90% of the population, reinforcing American ideas of a vast wilderness (Mann 110-127). As westward expansion under Manifest Destiny began, the public perception of Native people’s role in this “wilderness” continued to shift.
The idea of National Parks was first conceived by the painter George Catlin in 1833 after traveling the west, when he proposed “some great protecting policy of government” that would preserve western spaces as a “nation’s Park containing man and beast, in all the wild and freshness of their nature’s beauty” (Spence 10). In Catlin’s time, the west was seen as an “Indian wilderness” and Native communities were considered inseparable from and essential to the idea of vast and wild spaces in the west, while still an obstacle to be overcome (Spence 10-11). After the Civil War western colonization began in earnest, causing the dispossession of Native communities through treaties and forced removal from their land to reservations. The perceived necessity of westward expansion and conflicts with tribes soured American’s impressions of Native people, and the prevailing attitude and federal policy become one of Indian removal. At the same time, conservation of the western landscape became a mounting concern.
The Yellowstone Park Act created our first National Park in 1872, and some of the earliest policies and attitudes of National Park management were that Native people did not belong in the land. Yellowstone National Park was quickly occupied by the U.S. military, with one of its chief goals being the protection of tourists and wildlife from local tribes, often violently (Spence 55-70). Celebrated early advocate for the National Parks and founder of the Sierra Club, John Muir wrote in My First Summer in the Sierra in 1911 of the “strangely dirty and irregular life these dark-eyed, dark-haired, half-happy savages lead in this clean wilderness” (Monahan). In 1916, the National Park Service was created. By 1964, the passage of the Wilderness Act and its definition of wilderness as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain” reflected the National Park Service’s “institutionalized notions of static, past-tense tribes and tribal cultures that threatened to displace its concern for living, dynamic and evolving modern tribes” (PL 88-577, King 485). Transitioning through federal Indian policy eras of co-existence, removal, assimilation, reorganization, and termination, we are now in the era of self-determination and growing federal support for autonomy of Native tribes. In the light of this modern policy change, the need to collaborate with and cede certain authority to tribal governments has grown. As such, the National Park Service must also contend with the discriminatory and exclusionary beliefs at the very foundation of the organization.
The National Park Service is a federal agency contained by the Department of the Interior. The NPS currently administers 423 units that include the National Parks, Monuments, Seashores, historic sites, and wilderness areas (NPS Website). It is unique among land management agencies within the U.S. in that it has a ‘dual mandate’ to “to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment [of them] … as will leave them unimpaired for the enjoyment of future generations” (U.S. House, H.R. 15522). Because of this, a tricky balance must be maintained between recreation, tourism, and conservation, a juggle which is unique to NPS public land.
The Service has legal responsibilities to tribes outlined in the Constitution, treaties, statutes, and court decisions. Because of the sovereign “ward” relationship the U.S. has with tribes, the NPS has an obligation to protect tribal resources in “trust.” The Indian Self-Determination Act of 1975 (ISDA) first authorized the Secretary of the Interior to allow collaborations between tribes and NPS units (U.S. P.L. 93-638). Section 403(b)(2) of the Tribal Self-Governance Act of 1994 created an impetus, however, clarifying that collaboration was a primary goal and that “transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities strengthens the Federal policy of Indian self-determination” (U.S. House, H.R. 3508).
To this purpose, the American Indian Liaison Office (AILO) within the NPS was created in 1995 to facilitate relationships between tribes, the NPS, and the Bureau of Indian Affairs (BIA) (King 488). The AILO trains NPS employees to interact with tribes on a government-to-government basis, reconciles conflict between tribes and the NPS, and advocates for favorable federal Indian law and NPS regulations. Some of the realms it serves for tribes are wildlife management, land rehabilitation and protection of sacred sites and cultural resources (NPS Website). Today, many tribes have management and use agreements with the National Park Service that are negotiated via the AILO. The NPS treats tribal relationships as government-to-government, as established through the Marshall Trilogy and later reinforced through statute (American Indian Liaison Office). Only the 574 tribes that are federally recognized have a formal sovereign relationship with the U.S. government and can make contracts with or consult with the NPS and AILO (American Indian Liaison Office).
The Bureau of Indian Affairs in the Department of the Interior serves a similar role as the AILO, except as a direct intermediary between the federal government and tribes. The bureau has several natural resource programs intended to aid tribes, largely through allocating federal funds to tribes and providing legal and technical assistance (U.S. Department of the Interior). Tribes, the AILO, and the BIA all work together closely.
Because of the direct relationship between the federal government and tribes, most negotiations stay between tribes and the NPS; however, there are outside actors such as non-government organizations (NGOs), corporations, and interest groups who have had influence on tribal rights in National Parks, largely through litigation or lobbying. NGOs that advocate for Indian law include the Native American Rights Fund and the Association on American Indian Affairs. Conservation organizations, such as the Sierra Club and Earth Justice, have also joined either individual tribes or tribal coalitions in suits against the NPS or mining and fossil fuel interests. They share conservation goals with tribes and work with them to create federal land designations and protections. Often user groups such as anglers, hunters, and stockmen support these efforts as they help preserve the lands they use for recreation and their livelihoods.
Tribes themselves are culturally diverse and have distinct needs and relationships to land. There can be tensions between tribes, and members within tribes do not always agree on the best course of action. Tribes can form broad alliances, such as in 1996 when members of six tribes – the Timbishas, the Miccosukees, the Pai ‘Ohana in Kaloko-Honokohau National Historical Park, the Hualapai on the edge of Grand Canyon National Park, the Navajos near Canyon de Chelly, and Sandoval Indian Pueblos in New Mexico – formed the Alliance to Protect Native Rights in National Parks (Wilkinson). Not all tribes are federally recognized, with unrecognized tribes having little avenue for negotiations with the NPS. Use agreements are usually very specific, negotiated between one NPS unit and one or multiple tribes.
Problem definition, noted by Primm, can be a tool for different policy actors to define issues in natural resource management (137-141). There are multiple ways to frame any issue and each definition must be viewed in its political, cultural, and historical context (Primm 137-141). For Native tribes, the emphasis is on the religious, moral, and ecological, as well as the precedent of use. In contrast, the NPS places greater emphasis on management while still acknowledging the importance of Native claims.
Native people have been fighting for their land and autonomy since Europeans first arrived. The land in question is sacred: sites of spiritual significance, places where the world is said to have been created, where man first emerged, where ancestors were buried. The underlying issue then, at its very core, is a moral one. National Parks may be tourist destinations for many, but to Native communities “[the land is] everything: identity, the connection to our ancestors, the home of our nonhuman kinfolk, our pharmacy, our library, the source of all that sustained us” (Ptak). While few would deny the moral imperative of NPS land repatriation to tribes, the reality, obviously, is that the situation is much more legally complex than simply returning land to tribes. In the absence of new legislature, tribes must work with the existing legal policies in place and negotiate with the NPS – which has other legal obligations and use-group relationships to balance.
Tribes can often be in direct conflict with oil, gas, uranium, mining, or timber interests who disagree on land use priorities; however, many extractive activities are prohibited in National Parks and pose larger issues directly outside park boundaries. More commonly, tribes struggle with the NPS when the agency wishes to complete projects that impact cultural sites and religious freedom.
The policy problem is also largely legal. On NPS land units, treaties – broken or not – often manifest as reserved trust rights that allow for hunting by Native people or management authority by tribes (Nie 1-4). These treaties and various religious freedom and self-determination laws create avenues for tribes to advocate for their interests. The exact powers that some of these laws give are not clearly defined yet and are still being explored by tribes that are wary of establishing negative legal precedents. National Parks are often adjacent to or contain lands that the federal government seized in violation of treaties that were made with tribes before the Indian Appropriations Act of 1871 ended the federal practice of treaty-making (Rice). The federal government is in many cases acting in direct conflict with treaty law by holding land. A recent example is McGirt v. Oklahoma, where judges determined that half of Oklahoma is Indian reservation land under a broken treaty (Wamsley). Even where taking is acknowledged the U.S. does not typically return land, in favor of offering a monetary settlement. Usually, payment is not seen as an acceptable substitute for cultural land which is viewed as a relative (#LandBack).
Another way of defining the problem in the context of management is ecological. Tribes have rich ecological knowledge and relationship with their land, and this knowledge can be invaluable in solving complex management problems (#LandBack). A classic example of this is U.S. fire suppression efforts. Until the 1960s the U.S. wildfire policy was total suppression, based on the belief that wildfires were ecologically destructive and ‘bad.’ This altered the fire regime to intense and destructive crown fires (Pyne). Prior to colonization, Native people managed the landscape through extensive periodic burning (Mann 283-8). When Native people are removed from lands, so are their traditional harvesting and management practices which have kept ecosystems in check for millennia; exclusion has caused complex ecological management problems in National Parks.
There are multiple routes that tribes can go down to gain usufruct rights (rights to use public resources) and protection of land. King notes in “Co-management or Contracting?” that the four main types of collaboration are land transfers and exchanges, co-management, agreements, and tribal parks (488). Agreements are formalized contracts or policies that allow for usufruct gathering and hunting rights for tribes or management agreements, as two examples. Land transfers, exchanges, and co-management are rare and involve preexisting reservations or tribal land later designated as a National Park, or tribes taking on day-to-day management of National Park operations (King 489-90). Tribal parks are parks established on reservations by tribes and funded through the BIA and NPS (492). Another way to categorize policy processes, explored later in this section, is by the laws or programs that enable NPS-tribal cooperation. The NPS coordinates the consultation process through the AILO in order to identify and protect tribal resources, facilitate dialogue between the NPS and tribes, and consult tribes when NPS or Department of Interior (DOI) actions or plans may have tribal implications. Consultation is the main policy process through with tribes can collaborate with the NPS in most cases. (512 DM 4).
The consultation process is initiated as early as possible (512 DM 5). In the initial planning stage, an appropriate DOI official will provide at least a 30 days notice to the tribe, giving an adequate description of the project, a timeline, and outcomes. Tribes may also initiate a consultation. In the proposal development stage, the NPS solicits the views of the affected tribe(s) through negotiations, tribal leader task forces, and a single or series of open tribal meetings. Sensitive tribal information on sacred locations and ceremonies will remain confidential. Afterwards, the NPS may implement a post-consultation review process, and is required to prepare an annual Consultation Summary Report (512 DM 5).
The NPS must incorporate tribal views in their decision making processes, but it is not required to comply with tribes’ suggestions unless it has an explicit legal obligation; the DOI’s policy is expressly “to identify, protect, and conserve tribal trust resources; carry out its trust relationship with federally recognized Indian tribes and tribal members; and consult with tribes on a government-to-government basis whenever [NPS] plans or actions have tribal implications” (512 DM 4). Tribes and NPS units will often formalize their relationship and joint goals with Memoranda of Agreement or Understanding (MOAs or MOUs).
There are three main laws that trigger a consultation process. The National Historic Preservation Act of 1996 compels the NPS to identify and list historic locations, structures, objects, and archaeological sites. Federal projects are subject to a process called Section 108 review, where the NPS must determine if a project will affect a site and if so, work to avoid or minimize that harm (NPS Website). The Tribal Historic Preservation Program provides grant funding for Indian management of historic preservation. The Native American Graves Protection and Repatriation Act (NAGPRA) similarly protects Native burial and archaeological sites (NPS Website). Both of these acts trigger consultation procedures for the NPS. The American Indian Religious Freedom Act of 1978 (AIRFA) states a federal policy of respecting Native rights to practice their religions. Courts have determined that agencies must consult with tribes on projects that may affect religious practice and pay attention to their concerns, but tribes ultimately have no power over a final decision.
The Indian Self-Determination Act (ISDA), discussed previously, gave tribes the ability to demand contracts and compacts, “636 contracts,” that allow tribes to take over programs meant to “benefit Indians because of their status as Indians” (King 495). This definition has been expanded by a 1988 amendment to include programs under agencies other than the BIA that have “special geographic, historical, or cultural significance” to tribes, such as natural resource management with the NPS (King 495). Contracts allow for tribes to plan and administer programs, functions, services, or activities (PFSAs), while compacts allow the tribe to assume a greater degree of autonomy over both funding and administering of PFSAs (Indian Health Service). For contracts, the tribe submits for review a Letter of Intent and a Self-Determination Contract proposal, which is followed by negotiations with the agency and either approval or declination. For compacts, the tribe produces a draft compact and negotiates with the Agency Lead Negotiator (ALN) (Indian Health Service).
While good on paper, much of the policy process is undermined by lackluster participation on the part of the National Park service and its employees, and the voluntary or cooperative nature of many of the acts and programs; treatment of tribal governments can vary widely between NPS units. In 2017, a report of tribal experiences with the consultation process was published as a joint effort between the Department of Justice, the Department of the Interior, and the Department of the Army. They found that many tribes felt that agency consultations were completed as “box-checking” procedure and not to have a genuine dialogue. Federal staff often had inadequate knowledge of tribal cultures and treated them more like stakeholders than sovereign governmental entities. The consultation process was also often perceived as inconsistent and not properly involving tribes in important decisions that affected them (“Improving Tribal Consultation”).
It should also be noted that more than 200 tribes within the U.S. are unrecognized by the federal government, excluding them from the benefits that sovereign tribal nations have. Additionally, only 40% of recognized tribes are self-governance tribes who participate in the Tribal Self-Governance Program. This has created some alienation between tribes more open to assimilating and those who are not (King 499). For some, participating in federal programs and operating their tribal government in a way that reflects western models erodes their sense of identity.
Routes to more inclusive policies between tribes and the NPS might include creating a system-wide policy for usufruct rights, such as the NPS’ 2016 Final Rule allowing recognized tribes to collect plants on parklands (81 FR 45024). Federal obligations to tribes during consultation processes should be strengthened, giving authority to tribes similar to the Endangered Species Act or the National Environmental Protection Act. These laws make groups able to sue or halt projects that are damaging to natural resources. Consultation should be strengthened regardless, and tribes should have the full information they need to analyze the impacts of federal projects and activities.
Despite these shortcomings, the tribal self-determination laws and policies of the last 50 years have had a significant positive impact on tribal sovereignty and collaboration with the National Park Service. The Clinton, Obama, and Biden administrations have all published executive orders affirming the executive branch’s commitment to the government-to-government relationship with tribes, as well as their commitment to dialogue and improving the consultation process. The National Park Service, like any agency, is imperfect and continually trying to improve its procedures and contend with its exclusionary foundations. This does not excuse it, but furthering dialogue with tribes and giving their concerns power will give the NPS a chance to correct systemic issues, if they will listen. Tribes will likely continue to, and should, gain more avenues to connect with traditional lands located within National Parks. It will probably not be a straightforward path – little in policy is – but the National Park Service has an obligation to tribes; not only to acknowledge the ecological, spiritual, and cultural significance of tribal relations with their homelands, but to allow them to realize those connections through collaboration and humanity.
AILO – American Indian Liaison Office, within the National Park Service.
AIRFA – American Indian Religious Freedom Act
ANILCA – Alaska National Interest Lands Conservation Act
BIA – Bureau of Indian Affairs, within the Department of the Interior
DOI – Department of the Interior
NAGPRA – Native American Graves Protection and Repatriation Act
NHPA – National Historic Preservation Act
NPS – National Park Service
ISDA – Indian Self-Determination Act
TSGA – Tribal Self-Governance Act of 1994
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