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9 Ariz. J. Envtl. L. & Pol'y 1 (2018-2019)

handle is hein.journals/arijel9 and id is 1 raw text is: 





             ARIZONA JOURNAL

                              OF

ENVIRONMENTAL LAW & POLICY


               VOLUME 09            FALL 2018               ISSUE 1


THE SHIFTING LANDSCAPE OF ANCESTRAL LANDS:
   TRIBAL   GATHERING OF TRADITIONAL PLANTS IN NATIONAL PARKS

                                 Andrew Schrack*

     I. Introduction                                                      1
     II. Historical Gathering Rights in National Parks                    2
       A. Treaties                                                        3
       B. Congressional Acts and Presidential Proclamations               5
       C. Agreements                                                      7
     III. Shifting Legal Landscape                                       10
       A. 2016 Regulatory Changes                                        12
         1. Criticism of the Regulations                                 15
     IV. Eastern Band of Cherokee Indians Case Study                     17
       A. United States v. Burgess                                       20
       B. EBCI Actions Post-Trial                                        22
     V. Conclusion                                                       23


     I. Introduction

            The National Park Service (NPS) acknowledges that Native American
     tribes have deep historical, cultural, and religious ties to the lands that the NPS
     was created to conserve.' The national park system was established through the
     National Park Service Organic Act of 1916 (Organic Act) to conserve the
     scenery and the natural and historic objects and the wild life therein and to
     provide for the enjoyment of the same in such manner and by such means as will
     leave them unimpaired for the enjoyment of future generations.2 However, in the
     process of conservation, the new legal regime stripped away the historic uses of
     these ancestral lands from many Native American tribes. In most national parks,


     * J.D. Candidate, May 2019, The University of Tennessee College of Law; B.A. Political Science,
     2015, The University of Memphis. I am grateful to the Eastern Band of Cherokee Indians and
     James W. Kilbourne, Jr., for providing sources and research on this topic. I would also like to
     thank Professor Becky Jacobs for her guidance in writing this article.
     1 NAT'L PARK SERV., U.S. DEP'T OF THE INTERIOR, MANAGEMENT POLICIES 2006 § 1.11 (2006),
     https://www.nps.gov/policy/MP_2006.pdf [https://perma.cc/Z3YW-9B7B].
     2 National Park Service Organic Act of 1916, Pub. L. 64-235, 39 Stat. 535 (1916).

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