CHAPTER 10 SACRED SITES: CULTURAL RESOURCES AND LAND MANAGEMENT IN THE WEST
| Jurisdiction | United States |
(Nov 1997)
SACRED SITES: CULTURAL RESOURCES AND LAND MANAGEMENT IN THE WEST
Gough, Shanahan, Johnson & Waterman
Helena, Montana
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[W]e will not be able successfully to teach our people that this is a sacred place. If the ski resort remains or is expanded, our people will not accept the view that this is a sacred Home of the Kachinas. The basis of our existence as a society will become a mere fairy tale to our people. Wilson v. Block, 708 F.2d 735, 740 n. 2 (D.C. Cir. 1983).
No disrespect for those [Indian religious] practices is implied when one notes that such beliefs could easily require de facto ownership of some rather spacious tracts of public property. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 453 (1988).
I. INTRODUCTION
Although consideration of historic resources has always been part of the calculus of public land natural resource developers,1 these historic resources have infrequently been religious in character.2 Developments in this decade in the courts, Congress, and the White House have begun to fundamentally change the way federal agencies and private developers consider and, to an increasing extent, accommodate Indian cultural resources on, and off, the public lands.3 To be sure, no federal law exists that provides Indians with a sacred sites "veto" of natural resource development off-reservation,4 yet Indian tribes, either alone or in concert with environmental
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organizations have, in some notable instances, been successful in delaying or stopping natural resource development on lands significant to a tribe's religious or cultural interests.5 And, this administration has escalated policy development that would allow greater accommodation by federal agencies of Indian religious needs on public land. This paper will explore this still-developing policy area by first looking at the body of federal laws that provide the legal foundation for consideration of Indian religious and cultural resources. Second, the paper will examine the interplay between Congress and the courts in the area of First Amendment protections for the free exercise of Indian religions. Third, the paper will examine three critical executive branch policy pronouncements that have moved federal agencies towards greater accommodation of these types of American Indian cultural resources. Finally, the paper will discuss the potential for First Amendment establishment concerns that these policies raise.
II. FEDERAL LAWS AND INDIAN CULTURAL RESOURCES
A. National Environmental Policy Act and Federal Land Management Laws
1. National Environmental Policy Act
The National Environmental Policy Act (NEPA)6 requires federal agencies to use all practicable means in the implementation of their programs, "to the end that the nation may preserve important historic, cultural, and natural aspects of our national heritage."7 In order to ensure that this consideration is made by a federal agency, NEPA requires the agency to prepare an "environmental impact statement" for every "major federal action significantly affecting the quality of the human environment."8 This statement must include analysis of reasonable alternatives to the proposed action and "any irreversible and irretrievable commitments of resources..."9
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The regulations of Council on Environmental Quality (CEQ) establish threshold criteria to determine the significance of impacts. An impact may exceed NEPA's significance threshold depending on the degree to which it affects the "unique characteristics of the geographic area such as proximity to historic or cultural resources" or "districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places...."10 Cases are divided on whether or not the proposed demolition of a National Register-listed or eligible property is a "major federal action" under NEPA.11 Although there is no requirement that the impact of a project upon a sacred site or cultural resource be considered within a cultural or religious sense, advocates have argued that because NEPA's regulations define the "human environment" to include "the relationship of people with that environment" and the "effects" of a project include "cultural and social effects" that, at least, consideration of "secular" cultural concerns should be made in NEPA documents.12 The public participation requirement of NEPA provides the opportunity for comments by, and consultation with, Indian tribes concerned about impacts to sacred sites.
When the decision is made to prepare either an EIS or EA, the document may be challenged for failure to consider alternatives, cumulative impacts or mitigation involving cultural resources.13 Courts have held that an EIS must include a thorough discussion of the historic and cultural resources involved in the project, the impacts to those resources and the alternatives that would avoid the impacts to the resources.14 Courts are in disagreement as to whether a
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supplemental EIS must be prepared when new information regarding historic resources is discovered.15
NEPA provides for consideration of historic and cultural resources but, of course, has no substantive protections.16 The key point on NEPA, is that like the National Historic Preservation Act,17 it does not require federal agencies to avoid or minimize adverse effects on historic and cultural resources.
2. Federal Land Policy and Management Act
The Federal Land Policy and Management Act (FLPMA)18 is the BLM's organic act and requires the agency to manage the "public lands [ ] in a manner that will protect the quality of...historical...and archeological values."19 BLM's regulations direct managers to consider "the long term needs of future generations for both renewable and non-renewable resources."20 BLM resource management plans (RMPs) typically consider management of historic and cultural resources.21 FLPMA's designation of "Areas of Critical Environmental
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Concern" (ACEC) have been used to protect cultural resources and sacred sites.22 The BLM Manual contains specific provisions concerning implementation of cultural resource management.23
3. National Forest Management Act of 1976.
The National Forest Management Act (NFMA)24 requires that land resources management plans (LRMP) consider protection of cultural resources on U.S. Forest Service land. Implementing regulations for NFMA require that forest planning include the identification, protection, and "management of significant cultural resources."25 In addition, specific management actions shall be "assessed prior to project implementation for potential...cultural...impacts...."26 Finally, the Forest Service Manual contains specific directives concerning cultural resource considerations.27
4. Surface Mining Control and Reclamation Act of 1977; the Mineral Leasing Act and 1872 Mining Law
The Surface Mining Control and Reclamation Act (SMCRA)28 provides significant protection for cultural resources and can extend federal legal consideration of cultural resources
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to private properties. SMCRA expressly forbids mining which would adversely affect qualified cultural resources unless approved jointly by the Office of Surface Mining (OSM) and the federal, state, local or tribal land manager.29 SMCRA permit applicants must identify all properties eligible for listing in the National Register as part of the application process.30 In addition, "any person" may petition the permit-issuing agency to declare "lands" unsuitable for mining.31
Regulations of the Mineral Leasing Act of 192032 impose historic and cultural resource protection requirements, consistent with NHPA and NEPA, including identification survey work. Operation plans may be subject to substantive changes to avoid cultural or historic resources.33 Regulations governing leasing of other solid minerals incorporate similar unsuitability criteria to protect cultural resources.34 BLM regulations require operators to "take such action as may be needed to avoid, minimize or repair...[d]amages to...historical...values of the lands."35
Finally, operations under the 1872 Mining Law must consider historic and cultural resources.36 Plans of operations, which require the approval of the BLM or U.S. Forest Service, will trigger NHPA and NEPA compliance. BLM regulations provide that operators "shall not knowingly disturb, alter, injure, destroy or take...any historical, archeological, or cultural district, site, structure, building or object."37 Upon discovery of such properties, the operator is
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to notify the agency of the discovery and the agency has 10 days to evaluate the site and decide on any salvage action.38 And, although the Mining Law of 1872 does not allow land management agencies the discretion to say "no" to mining to protect cultural resources, the Blackfoot tribe in Montana was successful in urging the Department of the Interior to use the FLPMA withdrawal authority to withdraw federal lands in the Sweet Grass Hills to stop development of a gold mine on lands considered sacred to tribes in the United States and Canada.39
5. United States Park Service
The national park system and the National Historic Landmark program served as the foundation for the establishment of the National Register of Historic Places in NHPA. The NPS plays a significant role in the implementation of NHPA. The U.S. Park Service "1988 Management Policies," presently under revision, established a policy that the Park Service "to the extent consistent with each park's legislated purposes will develop and execute its programs in a manner that reflects knowledge of and respect for the cultures, including religious and subsistence traditions, of Native American tribes...Management decision will reflect knowledge and understanding of potentially affected...
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