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At the end of May, the U.S. Forest Service announced that the Bush Administration’s “midnight regulation“ requiring permits and fees for gathering “Special Forest Products” such as beargrass, willows, sedges, berries and nuts (including acorns) would be delayed indefinitely.

After being delayed twice by the Obama Administration, with a new public comment period that generated numerous letters, it was apparent that any rule attempting to regulate traditional gathering activities would be met with strong opposition from tribes, tribal organizations, and individuals across the country. The new rule would have also imposed permits and fees for personal (non-traditional) gathering such as berry-picking, with different harvest levels to be determined for each plant species.

Various forms of this rule have been proposed by the U.S. Forest Service over the past two decades, and CIBA has been a strong voice in opposition to the imposition of permits and/or fees for gathering plants used in traditional practices. We view such regulation as unreasonable interference with American Indian religious freedom and a failure of the U.S. government to meet its trustee obligations to tribes. We also strongly believe that imposing permits and/or fees would violate the Environmental Justice mandate established by the Clinton Administration, since many traditional tribal practices are crucial to the subsistence lifestyles pursued by tribal members.

The previous draft of the national rule spawned an effort by agency staff and tribal organizations, including CIBA, to develop a statewide policy that ensures free access to gathering sites on lands managed by the U.S. Forest Service and Bureau of Land Management within the state. This policy was the subject of numerous Listening Sessions and formal tribal consultation by the agencies, and after much input, was adopted in July 2007. However, the Bush Administration’s national rule would have overridden the statewide policy, along with local agreements between tribes and the agencies. Many Forest Service employees submitted comments opposing the imposition of permits and fees for traditional gathering, and are fully aware of the problems such a regulation would cause, both for on-the-ground enforcement and for agency-tribal relations.

The Bureau of Land Management (BLM) remained firm in their commitment to the statewide policy throughout our struggle to defeat the national Forest Service rule, and CIBA appreciates the support of their staff as well as staff of the Forest Service, U.S. Department of Agriculture, Native American Rights Fund, Seventh Generation Fund, National Congress of American Indians, Los Angeles City/County Native American Indian Commission, Alliance of Forest Workers and Harvesters, California Native American Heritage Commission, Representative Nick Rahall (D-WV), and the Senate Committee on Indian Affairs for their support and assistance.

Tribes and tribal organizations across the U.S. firmly support free and unfettered access to continue traditional gathering practices, and CIBA staff and members are grateful for the assistance we received in getting the word out about this detrimental proposal. In the words of one basketweaver, “We don’t want to be made into criminals again, but we will not stop gathering just because someone in Washington DC thinks they know better than we do how to sustain traditional plants.”

CIBA strongly supports increased regulation of commercial harvesting, which requires permits and fees, but has not been adequately regulated to insure long-term sustainability. Commercial harvest of edible mushrooms, huckleberry foliage, and basketweaving plants such as beargrass has caused conflict between traditional and commercial gatherers. However, traditional tribal gathering practices should not be regulated along with commercial harvest for profit.

The 2008 Farm Bill enacted by Congress codifies the U.S. Department of Agriculture’s responsibility to ensure free access to tribal members for traditional gathering purposes on lands managed by the Forest Service. This includes harvest of trees used for canoes and other traditional purposes. CIBA staff will be following the Forest Service’s implementation of these Farm Bill provisions. After this long battle to maintain existing gathering freedoms, CIBA staff is now returning to the task of implementing the Statewide Traditional Gathering Policy, which we hope will set the stage for the Forest Service’s new direction under the Obama Administration. This policy allows free access to gathering areas on lands managed by BLM and the Forest Service in California, and also directs the agencies to incorporate tribal traditional management practices to restore and enhance traditionally important plant resources and promote ecosystem health.