The FDA Is Pissing Off Native American Farmers

The United States of America is home to 566 federally recognized Native American tribes. And with its new, hugely impactful set of agricultural rules, the FDA is ignoring each and every one of them.

That's the sentiment, at least, put forward by a variety of tribal leaders, including Shannon McDaniel, the Choctaw nation's executive director for tribal operations. Last week, McDaniel addressed a letter to FDA officials in which he accused the agency of failing to consult with tribal leaders—a legal requirement—before issuing an updated draft of the Food Safety Modernization Act (FSMA). The multifaceted group of laws aims to increase the traceability of food-borne illnesses by regulating how all domestic meat and produce are raised, harvested, and processed. But enforcement of these laws will be costly, and with many Native Americans employed by the agriculture industry, tribal populations might suffer from them disproportionately.

In January 2013, the FDA updated the 2010 law, releasing details on how new requirements for practices like crop fertilization and water sanitation would be enforced. But before it did so, McDaniel and other tribal organizations claim, it failed to meet its obligation to confer with US tribes. (When reached for comment, FDA spokesperson Jennifer Dooren disagreed: "The FDA has met with tribal representatives to discuss the proposed Food Safety Modernization Act rules," she said. "The agency will continue to meet with tribal representatives and other interested stakeholders to discuss any concerns.")

Although McDaniel was unavailable for comment, his office sent MUNCHIES a statement summing up the Choctaw people's take on the issue.

"The Choctaw Nation has a long, rich history as an agricultural people," the statement reads. "Choctaw farmers have adapted through centuries, skillfully developing land-management practices to preserve the environment. The new FMSA rules would have a major impact on predominantly rural areas such as Oklahoma. The Choctaw Nation believes Executive Order 13175 required that tribal nations should have been actively included in FSMA consultations in developing the new rules and the FDA's decisions on those rules."

First issued by President Bill Clinton in 2000, EO 13175 was a promise made by the federal government to "establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications." Reaffirmed during the Bush administration and again by Obama, it's a binding legal obligation that tribes say has been completely elided during the development of the FSMA.

"It was an egregious oversight," says Janie Hipp, director of the Indigenous Food and Agriculture Initiative at the University of Arkansas and a member of the Chickasaw Nation, whose reservations, like the Choctaws, are in Oklahoma. Hipp, who formerly advised USDA Secretary of Agriculture Tom Vilsack on on tribal relations, is uniquely qualified to speak to the FDA's handling of the FSMA. The agency has made a couple of isolated attempts to speak with tribal leaders, she points out; it held a two-hour webinar with representatives back in 2013, and last April met with a group of New Mexico tribes. But these efforts fall far short of meeting the legal requirement to confer with tribes in a meaningful, well-organized way, Hipp says.

"You can't do consultation through a couple of webinars," she said. "The issue is too complicated."

Complicated, indeed. FSMA legislation, which will take effect in installments starting this summer, will touch every aspect of the US food system. It will place tighter controls on the operations of food processing facilities; it will dictate how fertilizers such as manure can be used; it will set standards for how food is packaged, and even how it's exported, among many other changes. All farms and food processors will be subject to an increased amount of scrutiny, in the form of inspections, and, of course, all of this will come at a cost to farms. A great cost, explains Hipp.

"The costs are going to be substantial," she says. "Let's say a small producer makes $10,000 in a year, after all the bills are paid. And then it costs them $5,000 to comply with the rules, according to the FDA's own cost-benefit analysis? Those added costs could, in many cases, force them out of businesses."

That's a concern shared by many small farmers, who, since the FDA's 2013 announcement, have petitioned the agency to make significant changes to the FSMA before it goes into effect. But it's one of special worry to Native Americans, Hipp says.

"Agriculture is the second-largest employer in Indian country," she says, "and that's divided up pretty evenly between livestock and crops," both of which will be governed by FSMA legislation. The majority of Native American producers are small-scale, Hipp says, and it's doubtful they'll be able to support all the increased costs associated with the training and certification processes they'll be required to complete, let alone the costs they'll incur as they change how they plant, harvest, and package crops, or how they raise their livestock.

It's not just individuals, or individual tribes, that are upset about how the FDA has handled the implementation of the FSMA. The National Congress of American Indians, the nation's largest, oldest, and most representative group of Native Americans, released a statement on the FSMA that reads, in part, "the FDA enacted new legislation without consultation with tribes, which is in conflict with Executive Order 13175 that recognizes tribal rights to self-government."

McDaniel, of the Choctaw Nation, believes that because the FDA failed to uphold its end of the bargain when developing the FSMA, Native Americans should be freed from the obligation of following its Produce Rule, which governs the growing, harvesting, and packing of produce, and is likely to be the most complicated and costly for tribal growers. He asks in his letter that the FDA "exempt tribal nations, their lands, and their members from application of the proposed rule."

Hipp stresses that food safety has long been important to Native American food producers, and that that's not what's at issue here.

"No one's against having a safe food supply—that is not the point," she says. The question, Hipp says, is whether the FDA's new legislation will effectively shut down a vast network of small, traditional farms.

"Are we actually deploying something that will drive people into the margins?"