Federal agencies sued over Biden administration guidance on indigenous knowledge; records released

Federal agencies sued over Biden administration guidance on indigenous knowledge; records released

In December, the Biden administration released guidance designed to promote the use of indigenous knowledge and beliefs in federal agencies’ decisions, and to give tribes more control over the dissemination of their indigenous knowledge.

As the White House put it,

Indigenous Knowledge is a body of observations, oral and written knowledge, innovations, practices, and beliefs developed by Tribes and Indigenous Peoples through interaction and experience with the environment. The Biden-Harris Administration has formally recognized Indigenous Knowledge as one of the many important bodies of knowledge that contributes to the scientific, technical, social, and economic advancements of the United States and our collective understanding of the natural world.

Indigenous knowledge and beliefs can be useful, or they can be harmful quackery. Examples of harmful indigenous and traditional beliefs include using cautery as a “remedy” for illnesses. Cautery “involves placing a heated metal object, usually a nail or a small rod much like a branding iron, on the patient’s skin. The procedure is painful, burning the skin and leaving a permanent scar.” And it doesn’t cure the illness it is used to treat.

Despite the uneven quality of indigenous knowledge, the Guidance for Federal Departments and Agencies on Indigenous Knowledge says that “Agencies should also include Indigenous Knowledge as an aspect of best available science,” and that “Indigenous Knowledge … may be used in HISA [Highly Influential Scientific Assessment] documents.”

Distinguishing between good and bad indigenous knowledge and practices can be challenging and politically taboo. In this day and age, we are not supposed to recognize that some cultures are superior to others. Such common sense is deemed prejudiced. So if you visit the National Museum of the American Indian, you find a hodgepodge of Native American displays, with little attempt to focus on the most important tribes or explain their role in American history. There is no effort to focus on the major or more significant Native American tribes as opposed to the more backward or insignificant tribes (examples of significant tribes are those that contributed words to the English language, crops to world cultivation, and examples of durable self-government cited by the Founding Fathers).

So when the Biden administration last year issued guidance about the use of indigenous knowledge, I was curious about what prompted it, and what that would entail. I submitted a Freedom of Information Act request about the guidance on behalf of Liberty Unyielding and the Bader Family Foundation. When two federal agencies did not comply with my request — the Office of Science and Technology Policy and the National Science Foundation — the Bader Family Foundation sued them in federal court on May 1.

In response to that lawsuit, the agencies have finally begun producing some of the records we sought. If you would like the records they produced, I will be happy to email them to you, if you email me a request for them at hfb138@yahoo.com.

One of the more than 2,000 pages of records they produced is the October 11, 2022 comment of the United South and East Tribes Sovereignty Protection Fund, which ties indigenous knowledge to “religious beliefs”and seeks implementation of an “ideology.” It also seeks to curb access to information under the Freedom of Information Act, and to obtain federal funds for tribal staff involved in sharing of indigenous knowledge, including for “spiritual elders.”

It notes that its “Indigenous Knowledge” is “based on our cultural, spiritual and religious beliefs.” If the Biden administration seeks to rely on “religious beliefs” in government decisionmaking, that could create constitutional problems under the Establishment Clause. The comment states that “It is important that federal agencies work with Tribal Nations and our identified cultural and spiritual leaders to accurately define Indigenous Knowledge to incorporate holistic beliefs and practices respective to each Tribal Nation. The use and application of Indigenous Knowledge in federal decision-making processes must also reflect this ideology and federal agencies must respect our willingness or unwillingness to share Indigenous Knowledge and cultural information.”

The comment also notes that “In comments submitted in May 2022, USET SPF recommended that the federal government should actively protect sensitive Indigenous Knowledge and cultural information from being accessed through mechanisms such as Freedom of Information Act (FOIA) requests or from being shared on publicly available maps, guides, or other online tools/databases.”

It states, “federal agencies receiving Indigenous Knowledge from Tribal Nations should not share this information with other federal agencies in the absence of express Tribal Nation consent….We should be the sole determiners regarding whether this information should be shared or withheld…..federal agencies should actively work with Tribal Leaders to determine what information should be redacted from public dissemination and protected from FOIA requests. Furthermore, federal agencies must inform Tribal governments when FOIA requests are made to access our information and let us determine whether such requests should be withheld or redacted. Similarly, federal agencies must inform Tribal governments when the agency receives these requests, what entity is requesting this information, and the information being requested. Tribal Leaders, Tribal Historic Preservation Officers, and other individuals we expressly identify, should be recognized as authorities to claim what Indigenous Knowledge and cultural information should be withheld or redacted from public dissemination. Additionally, we should also be the sole and final arbiters in identifying what constitutes Indigenous Knowledge — not the federal government.”

Additionally, it says,”Federal agencies must actively identify and advocate for upfront funding to support Tribal government staff in the review of project proposals and applications since these will often include the use and sharing of Indigenous Knowledge. Appropriate compensation must also be provided to Tribal departmental staff and spiritual and cultural elders expressly identified and recognized by Tribal Leaders since they participate and serve in critical roles in the sharing of Indigenous Knowledge….our Tribal government staff, technical experts, and identified spiritual and cultural elders should also receive just compensation and support from federal agencies. Federal agencies should provide funding and support for these activities in all areas of federal policy and decision-making, which includes areas such as infrastructure construction, forest management, stewardship/co-stewardship, and management of other natural, environmental, agricultural, and wildlife resources.”

The comment is found at this link: https://libertyunyiel1.wpenginepowered.com/wp-content/uploads/2023/08/pp.-125-31-of-2nd-piece-Part-1-USET-SPF-comments-on-behalf-of-eastern-southern-tribes-right-to-withhold-tribal-info-suppress-info-from-FOIA-requests-state-govts-compensate-tribal-govts.pdf

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com


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