Published September 3, 2015
The National Forest Service (NFS) is currently seeking comments on proposed policies that guide the agency’s working relationships with American Indian Tribes and Alaska Native Corporations. On the surface this seems like a positive step forward, and in some ways it does offer an opportunity for improving these relationships. However, there are some areas of concern that need to be addressed.
The Proposed Directives are to be included in the American Indian and Alaska Native Relations Forest Service Manual 1500, Chapter 1560 and Forest Service Handbook 1509.13, Chapter 10. According to the National Register posting, the proposed directives “modify Forest Service staff roles and responsibilities, establish staff training standards, describe authorities for working with Indian tribes, delineate consultation procedures, explain the historical trust and treaty responsibility underlying the government-to-government relationship, and outline Dispute Resolution options within the Forest Service.” Based on multiple conversations with Forest Service administrators, the underlying goal is to help increase the awareness and sensitivity of Forest Service Staff to the legal rights of Indigenous peoples and to highlight the unique legal relationship that they have with the United States Government. This comes after several concerning episodes where Forest Service Staff have exhibited disrespectful and legally questionable behaviors towards Indigenous peoples, while they were involved in ceremonies on National Forest Service lands.
The United States Government has a legal obligation to consult with Indigenous peoples when taking any action that will have an impact on the Indigenous peoples, their lands, or way of life.
One of the troubling things about the Proposed Directives is that they give the staff of the National Forest Service the final authority to determine which activities have the potential to result in an impact sufficient to require consultation. Though, NFS Director, Fred Clark, has stated that these decisions will be made in close cooperation with the local Indigenous people, there is nothing in the directives that would require the Forest Service to honor the right of the Indigenous peoples to determine what activities constitute an impact to their cultural and traditional way of life. This presents a great danger to us all. It is vitally important that Indigenous people continue to be recognized as the only legitimate authority on their customs, traditions and way of life. And, on determining which activities present the potential to impact that way of life.
A great example of this danger can be seen in the situation that unfolded around the San Francisco Peaks. In that situation, a for-profit Ski Resort was given permits to process reclaimed waste water, in order to make snow. It was determined that this snow making activity did not interfere with the traditional and cultural uses of the Indigenous people, who accessed the site for religious and cultural purposes. However, more than a dozen Tribes vehemently opposed the action, because the use of reclaimed waste water would defile the area and eliminate the Tribes’ ability to utilize the land for sacred purposes. By allowing Snow Bowl to use waste water collected from hospitals and mortuaries, the Forest Service eliminated the ability of Indigenous peoples to use the site for ceremonial purposes. The waters involved have come in contact with illness and death, which makes it forbidden for ceremonial use by many Indigenous peoples. Additionally, the chemicals found in the water were shown to present some serious health concerns. For instance, some chemicals found in the waste water were identified as endocrine disruptors. According to the National Institute of Environmental Health Sciences, “Endocrine disruptors are chemicals that may interfere with the body’s endocrine system and produce adverse developmental, reproductive, neurological, and immune effects in both humans and wildlife.” This means that the presence of endocrine disruptors in the contaminated waters on the mountain eliminates the viability of the traditional medicinal plants collected on that site by the Indigenous peoples, making them unusable. Though the Indigenous people weren’t physically restricted from access to the area, they were constructively evicted, as a result of the destruction of the elements needed to fulfill their traditional and cultural purposes. When the voices of the Indigenous peoples are not given full authority to determine which activities present an impact, our sacred places are endangered, and our traditional and cultural way of life is placed at risk.
Another problem with the Proposed Directives is that they leave out a vital aspect of the consultation requirement, consent. The United States has been working to craft their consultation language for several years. In that process, they have been careful to avoid any language that ties consultation to consent, limiting it to consultation and coordination. The language in the Proposed Directives seeks to bring NFS policies into alignment with other policies that already define consultation in this limiting manner. This position is out of step with the rest of the legal world. Legal consultation has historically been tied to a consent provision that requires gaining the Free, Prior and Informed Consent (FPIC) of Indigenous peoples, before moving forward with any actions that may impact them. The language in the Proposed Directives states that the National Forest Service is only required to consult and coordinate. It makes no mention of obtaining consent. FPIC is tied to consultation requirements for the express purpose of giving Indigenous Peoples the right to say NO, to activities that negatively impact their cultural and traditional way of life. By leaving this language out of the Proposed Directives, the NFS eliminates the ability of Indigenous peoples to effectively protect their way of life. If there is no mechanism for addressing negative impacts then all of the other provisions become meaningless.
The Proposed Directives also fail to recognize the voices of traditional spiritual leaders in the consultation process. Executive Order 13007 requires all Departments and Agencies within the United States Government to address any and all “procedures implemented or proposed to facilitate consultation with appropriate Indian tribes and religious leaders and the expeditious resolution of disputes relating to agency action on Federal lands that may adversely affect access to, ceremonial use of, or the physical integrity of sacred sites.” Yet, the Proposed Directives leaves out any requirement to consult with traditional spiritual leaders. Traditional spiritual leaders are the keepers of the wisdom traditions in our communities. It is vital to our cultural survival that they be included in any and all discussions related to our ceremonial life and the protection of our sacred sites. Limiting the language to include only government to government consultation eliminates entire groups of Indigenous peoples from these discussions. The solution proposed was for Indigenous peoples to catalog all of the known sacred sites and the cultural and traditional purposes attached. This violates the oral tradition that keeps our way of life alive. It is a living breathing thing that cannot be encapsulated in one standardized document. If we hope to keep our spiritual traditions intact then we must ensure that our spiritual leaders are involved in these discussions. In fact, we must ensure that the voices of ALL Indigenous peoples are heard. The Proposed Directives also fails to acknowledge all of the Indigenous peoples that have, for one reason or another, not entered into recognition agreements with the Federal Government. This is discriminatory and a violation of the U.S. obligations under International Law. It also places many of our sacred places at higher risk of exploitation.
These are only a few areas of concern. I encourage everyone to review the Proposed Directives and to submit comments to the National Forest Service as soon as possible. The comment period ends on September 22, 2015, so time is of the essence.Remember – Your voice can only be heard if you raise it!
You can find information of the Proposed Directives on the U.S. Forest Service website:
Additional information may be obtained at http://www.fs.fed.us/spf/tribalrelations/bundledconsultation.shtml.
You can send comments electronically by following the instructions at the Federal eRulemaking portal at http://www.regulations.gov. Comments also may be submitted by email to email@example.com or by mail to Tribal Relations Directives Comments, USDA Forest Service, Attn: Fred Clark—OTR, 201 14th Street SW., Washington, DC 20024.
Sherri Mitchell (Wena’ Gamu’ Gwasit) was born and raised on the Penobscot Indian Reservation. She is an Indigenous Rights attorney, writer and teacher. She’s been an adviser to the American Indian Institute’s Healing the Future Program and the Spiritual Elders and Medicine Peoples Council of North and South America. Sherri speaks around the world on issues related to Indigenous rights, nonviolence, and the traditional Indigenous way of life. Sherri is the Director of the Land Peace Foundation, an organization committed to protecting Indigenous Rights and the Indigenous Way of Life.
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