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Public Lands and American Indians: Traditional Use and Off-Reservation Treaty Rights
Public Lands and American Indians: Traditional Use and Off-Reservation Treaty Rights
BY YVETTE TOWERSAP TUELL
The public lands in the western United States are valued and considered significant by many individuals and groups. Native American tribal cultural and historical perspectives are different than they are for other user groups, given the tribes’ long historical ties to the land. Tribal beliefs and actions are often silent and unseen by the public, and are often misunderstood, denied, or ignored by the general public and by state and federal land managers. This is largely due to Indian displacement that occurred on what became public lands. In the Great Basin region, the removal of Native peoples from their indigenous homelands onto reservations made room for Euro-American settlers, ranchers, miners, and others, and for federal claims of ownership to the public domain. The removal of Indian people from their lands, whether forcible or voluntarily, generally stripped them of authorized use of those lands, creating a need for Native peoples to return surreptitiously to utilize necessary subsistence resources and traditional locations.
As part of the multilayered debates over public land use, American Indians and tribes are finally—and increasingly—voicing their concerns. For decades, as Americans “discovered” the wonders of the natural landscapes in the West, non-Indian activities have received the focus of attention. But Indians have always had a presence there, taciturn but active. Indian people were the original inhabitants of vast lands throughout the West. Since time immemorial, Native people have lived in the northern Great Basin region; these people, who are now known as the Bannock, Shoshone, and Northern Paiute, called themselves the Newe or the Numa, which translates to “the Indian people.” The sovereign Newe bands all lived within Bia Sogope, which means “our big lands” in Shoshoni, referring to the entire aboriginal territory of the Newe. As Euro-American settlement expanded into Indians lands in the nineteenth century, the federal government took ownership of those lands and transferred portions of them to states, private citizens, and even private companies. The United States retained and designated large areas for national purposes, such as national forests, parks, and monuments. Yet displaced American Indians remember that the public lands are the last vestiges of their tribal ancestral lands.
The United States has recognized the importance of preserving national, state, and local heritage sites and areas, and Congress has created federal heritage laws to identity, evaluate, and preserve historic properties for future generations. 1 Other federal statutes direct how to address natural resources, including water, wildlife, and vegetation—all vital to tribal groups. 2 These laws provide requirements for federal land managers to engage in meaningful and good faith consultation with tribes and to consider the American Indian historical land use and traditional cultural properties on public lands. 3 Tribes rely on sincere efforts in tribal consultation with federal agencies, as tribal members continue to exercise their inherent and treaty-reserved rights. Federal land managers are required to incorporate tribal rights and issues into their management plans.
The general public must understand that, far from being another special interest group, tribes have valid rights to the use of public lands based on their sovereign political status as tribal governments. Individual tribal members have inherent rights to engage in religious, ceremonial, and other activities not specifically ceded in treaties. 4 Given increasing competition on public lands, it is important for the general public to understand that tribal members continue to conduct traditional activities on these lands. For example, along rivers and streams where anadromous fisheries are present, Shoshone-Bannock Tribal members continue to hunt for Chinook salmon, using traditional spear poles during both day and night fishing. Gathering activities include digging camas, bitterroot, wild carrots, and other plants, along with harvesting pine nuts and chokecherries. Conflicting public perceptions and awareness of land ownership and management, as well as safety concerns, are pragmatic issues for tribal members. Two major recreational issues conflicting with tribal inherent rights and treaty-reserved rights will be addressed here.
Shoshone-Bannock tribal members harvesting pine nuts at Castle Rocks State Park, Idaho, 2012. Courtesy Yvette Tuell.
Rock Climbing and Archeological Protection
The conflicting cultural perspectives regarding use of the outdoors is evident in the case of the Cedar Fields Archeological District and the Snake River Recreational Area, located on the north bank of the Snake River, west of American Falls, Idaho. 5 Off-highway vehicle (OHV) use, rock climbing, and hiking are among the recreational activities that occur there. Cedar Fields, established as an archeological district in 1999, contains a significant concentration of Native American archeological and historic sites. 6 Due to tribal concerns over the degradation of archeological sites from an increase in unmanaged OHV use, the Bureau of Land Management began development of a management plan. 7 The issues raised by the tribes included damage to several thousand-year-old archeological sites and petroglyphs, obscene graffiti, unauthorized OHV use, and failure to protect traditional cultural properties within the boundaries of the archeological district.
In 2012, during the public involvement process, members of the Twin Falls BLM Resource Advisory Council (RAC) with varying interests in public lands weighed in on the issues. 8 My nomination to the RAC, approved by the Secretary of the Interior, was to represent tribal interests; the majority of the other RAC members, however, had no knowledge of tribes and tribal rights and activities on public lands. They were surprised to learn that in the Shoshone-Bannock Tribes’ (Tribes) consultation with Twin Falls District BLM officials, the Tribes had offered strong opposition to the proposed rock climbing and recreational uses of the BLM lands. Rock climbers have their own reverence of the land, and most members of the advisory council expected the Indians to share the rock climbers’ respect for the cliffs and exhilaration in climbing them.
Members of the public who attended the planning meetings in January 2012 also voiced their conflicting perspectives. I expected the majority of the non-Indian public to oppose any tribal request to discontinue rock climbing in the Cedar Fields area. That expectation was fulfilled when two special interest groups who represented the rock climbers expressed derision and disrespect toward the Indians’ cultural perspective of rock climbing. Tribal members offered their cultural and ceremonial views of the sandy and rocky cliffs of the Cedar Fields area. Tribal people regard natural rock formations as representative of the earth’s power; they are perceived as a living force, alive and powerful. Rock shapes often appear as the outlines of animals and people, and tribal stories explain the power of rocks and the intrinsic relationship between humans and nature. “These places are sacred,” Shoshone-Bannock tribal member Merceline Boyer said at one of the meetings. “It’s where our ancestors went and it’s where we still go today. We want this land protected.” 9
The opposing view of rock climbers was striking. From the Tribes’ perspective, climbers are newcomers, based on their own claim of using the rock cliffs only since the 1990s. Once “discovered” by the rock climbers, the granitic rock cliffs had become a popular destination for recreationalists. A local climber, Jack Brennan of the Eastern Idaho Climbers Association, stated, “We think there should be a common ground between the BLM and rock climbers. Climbing has been taking place in these areas for years. We should not have our freedoms taken away now.” 10 This expansive concept of “freedoms” is synonymous with rights, whereby citizens believe they have a right to use public lands for specific activities. However, although public land managers can permit activities in specific areas, rock climbers enjoy no guaranteed rights. Conversely, federally recognized tribes have long-held traditions on public lands or treaty-reserved rights: there is no question that they retain strong tribal rights on public lands.
As an RAC member, it was my responsibility to express the tribal concerns and to help shape the proposed RAC recommendations to the BLM managers. After verbal discussions and a long, hot site visit to the Cedar Fields area, where the RAC members visually experienced the quietness and felt the heat and power of the rock cliffs, it seemed that the non-Indian RAC members were coming to understand the tribal perspectives. At the final RAC meeting, several members offered heartfelt thanks to me, as the tribal representative, for sharing such transcendent tribal beliefs with them. Unfortunately, the final RAC recommendation reflected the makeup of the council, and while RAC members had learned much about tribes and their cultural traditions, the council’s final recommendations—to allow continued use by recreationalists, to mitigate vegetation losses within the archeological district, and to camouflage climbing bolts pounded into the rock cliffs—did not reflect that new education. None of the concerns raised by the tribes was addressed in the RAC’s recommendations. In the fifteen-member advisory council, only Yvette Tuell voted against the recommendation, stating, “Just because you can have multiple-use on public lands, doesn’t mean you should have multiple-use.” 11
While the BLM has not completed the NEPA process to determine the final management plan for this area, it remains to be seen how federal land managers will balance protection of American Indian cultural resources and treaty rights with recreational uses allowed on public lands.
Traditional Tribal Camping
Concurrent with the rise of outdoor recreation is the emergence of a large camping industry offering the latest in gear and activities. Tribal definitions of camping are different than those of the non-Indian recreational camper, and when land managers develop camping regulations focused on non-Indian campers, conflicts result with traditional tribal camping practices. Land managers, determined to provide state-of-the-art campground amenities, develop and impose camping fees, identify developed and dispersed camping areas, establish parking restrictions or fees, and restrict parking or driving off roads. But the growing number of campers compromises the ability of tribal members to carry on with their long-held traditions of hunting, fishing, gathering, and conducting ceremonial and spiritual activities.
The Shoshone-Bannock Tribes have responded with a policy statement clarifying that camping, even though not expressly stated in treaties, is considered an important intrinsic, reasonable activity under exercising treaty rights.
Only a hundred and fifty years ago, the Shoshone and Bannock people were experts at knowing and utilizing their vast geographic homelands for natural resources upon which they relied for food, water, trade, and economy. Transportation was generally via foot or horses along common routes, many of which became modern transportation corridors across the region. As necessary, travel was done regularly and quickly, with temporary lodging made along the route. Organized travel was common and necessary; tribal camp leaders had the responsibility to designate camp sites for individual families. 12 Camps were made in a variety of locations, usually near a water source, and Indians used the nearby vegetation (sagebrush, tulees, willows, lodgepole pines, and other types of brush and trees) or natural caves or cliffs for shelter, winter windbreaks, and enclosures for animals. Lava flows were commonly used as camping grounds, as well as for defensive purposes along travel corridors. 13 Water sources in the lava fields lured water fowl and other wildlife, which the Indians relied on for subsistence. 14 Plant foods provided necessary nutrients. The size of camps ranged from single families to large encampments, depending on the season and purpose, whether they were for trading or socializing.
At the Fort Bridger Treaty negotiations held in Utah Territory in 1868, Bannock Chief Taghee set forth conditions: “I want the right to camp and dig roots on Camas Prairie when coming to Boise City to trade.” 15 For the highly mobile Shoshone and Bannock people, camping was an intrinsic activity that was directly related to off-reservation treaty rights to hunt, fish, or gather resources. At the signing of the 1868 Fort Bridger Treaty, it was understood that the Indians would make a reservation their home but would retain off-reservation hunting rights. In essence, they gave up their homelands in exchange for reserved rights for treaty annuities and for hunting, fishing, and gathering off reservation, including the related right to camp. Yet for decades, tribal people furtively returned to their traditional homelands to harvest needed subsistence foods, away from the eyes of non-Indians. In the 1950s, tribal members reported that they crossed fences and moved camp if they encountered ranchers or farmers.
Contemporary tribal camping involves scouting a location for fishing and hunting, conducting individual ceremonial and spiritual activities, and gathering plants, wood, rocks, Indian paint (minerals), or any other traditional product. Either en route or near the selected campsite, wood is gathered for the fire. Once located by the family elder, a particular site might be used by a family for generations. Unfortunately, as more campers flock to popular areas on public lands, the result is that tribal members are sometimes no longer able to camp at their traditional sites.
In 2005, Congress passed the Federal Lands Recreation Enhancement Act, which established fees for recreational uses, including camping. 16 Federal land managers, faced with increased recreational use, have imposed restrictions, permits, and fees for campground visitors, including tribal members. Depending on the federal land owner, highly desirable campsites are either reserved via a national reservation system, or they are used on a firstcome, first-served basis. This creates a competitive system that is incongruent with treaty rights. Although tribal members are appreciative of the new modern conveniences offered at developed campgrounds, above all they value access to traditional tribal camp sites.
The Shoshone-Bannock Tribes responded to the 2005 legislation by issuing a statement of policy, declaring that enrolled tribal members who are eligible to exercise off-reservation treaty rights are exempt from utilizing the federal campground reservation system and from paying campground or other fees at developed campgrounds. 17 The statement reads:
Recognizing and Exercising Tribal Rights
Tribes continue to press for recognition and the exercise of tribal inherent and treaty rights to camp, gather, fish, hunt, or perform religious and ceremonial activities on public lands. While public land managers often enumerate the long list of federal laws, executive orders, and agency guidelines in federal land management plans, the challenge of actually implementing the intent of tribal traditional use on public lands is often underrealized. Whereas land-use conflicts on public lands have traditionally centered on ranching, mining, recreation, and wildlife management, for American Indian tribes the conflict extends into political and constitutional issues of federal and state laws, and treaties. Centuries-long lifeways are at stake, as tribes are constantly forced to adjust to competing uses of their aboriginal lands. American Indian history is not in the past—it is directly applicable to present-day management of public lands. The challenge is to maintain tribal rights even as conversations continue to determine how best to use the public lands. The ongoing conflict of “living to use the land” versus the Native American philosophy of “living on and with the land” is still not fully resolved in public lands management.
Regardless, tribes continue to fight on for their tribal rights to access public lands, to protect natural and cultural resources from degradation, to ensure the sustainability of native populations of wildlife and native plants, and to educate the general public about Native
American traditional practices. Tribes are using federal laws and programs, including the National Historic Preservation Act, Federal Energy Regulatory Commission, and Federal Lands Recreation Enhancement Act, to their benefit. Another effective strategy is establishing intertribal coalitions to collaborate on common issues; the Upper Snake River Tribes, Coalition of Large Tribes, Bears Ears Inter-Tribal Coalition, and Rocky Mountain Tribal Leaders Council are a few examples. Collaboration and communication with federal land managers have the promise to achieve common goals of maintaining the natural character of public lands to benefit future generations of tribal people and the general public.
Notes
1 National Historic Preservation Act of 1966, 54 U.S.C. §3001 (2016); Archaeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa; Native American Graves Protection and Repatriation Act of 1990 (NAG- PRA), 25 U.S.C. 3001.
2 National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321; Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701; Endangered Species Act of 1973, 16 U.S.C 1531; Mineral Leasing Act of 1920, as amended through Public L. No. 113–67, 30 U.S.C. 181; National Indian Forest Resources Management Act (NIFRMA), Public L. No. 101–630, 104 Stat. 4532 (November 28, 1990); Healthy Forest Restoration Act (HFRA), Section 303 of Public L. No. 108–148 (December 3, 2003); Tribal Forest Protection Act of 2004, Public L. No. 108–278 (July 22, 2004).
3 Consultation and Coordination with Indian Tribal Governments, November 6, 2000, Exec. Order No. 13175, 65 Fed. Reg. 218 (2000); Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, February 11, 1994, Exec. Order No. 12898, 59 C.F.R. Part 7629 (1994).
4 American Indian Religious Freedom Act of 1978 (AIR- FA), 42 U.S.C. 1996; Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb; Indian Sacred Sites, May 24, 1996, Exec. Order No. 13007, 61 C.F.R. Part 104 (1996).
5 Department of Interior, Bureau of Reclamation and Bureau of Land Management, Twin Falls District, American Falls Archeological District, undated brochure.
6 Department of the Interior, Bureau of Reclamation, Pacific Northwest Region, Snake River Area Office, “American Falls Resource Management Plan, Finding of No Significant Impact and Final Environmental Assessment,” September 1994.
7 Department of the Interior, Bureau of Land Management, “Notice of Intent To Prepare a Resource Management Plan (RMP) Amendment and Associated Environmental Assessment for the Castle Rocks and Cedar Fields Areas, Burley Field Office, ID,” 76 Fed. Reg. 163 (August 23, 2011).
8 Interests represented on the RAC include energy, ranching, recreation, mining, state agencies, academic, environmental, and tribal
9 Kimberlee Kruesi, “Feds Seek Alternatives to Restricting Rock Climbing Area,” Magic Valley News, January 26, 2012, https://magicvalley.com/news/local/feds-seek -alternatives-to-restricting-rock-climbing-area/article _36051395-c105-5b0a-80c3-e8cff52902f7.html.
10 Kruesi.
11 Kimberlee Kruesi, “Advisory Group Recommends Multiple-use for Cedar Fields,” Magic Valley News, September 21, 2012, https://magicvalley.com/news/local/advisory -group-recommends-multiple-use-for-cedar-fields /article_39aad7df-32cc-5574-9328-298f6ce7c4c6.html.
12 Yvette Tuell, “Native Leadership, Diplomacy and Negotiation: The Power of Rhetorical Discourse and Persuasion” (unpublished paper, University of Utah, Salt Lake City, 2014), 15.
13 Benson Gibson, “Survivors of the Bannock War” (unpublished manuscript, 1991), 37.
14 L. Suzann Henrikson, “Bison Freezers and Hunter- Gatherer Mobility: Archaeological Analysis of Cold Lava Tube Caves on Idaho’s Snake River Plain,” Plains Anthropologist 48, no. 187 (2003): 263–85.
15 Idaho Statesmen, August 29, 1867; D. W. Ballard to C.I.A., Boise City, August 31, 1867, roll 3, Letters Sent and Miscellaneous Records, 1863–70, Idaho Superintendency, National Archives; as cited in Brigham D. Madsen, The Northern Shoshone (Caldwell, ID: Caxton Press, 2007), 52. On the Fort Bridger Treaty, see 15 Stat. 673 (July 3, 1868).
16 Federal Lands Recreation Enhancement Act of 2005, 16 U.S.C. §6801.
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