CHAPTER 11 PROTECTION OF SACRED SITES AND CULTURAL RESOURCES: AN OBSTACLE TO MINERAL DEVELOPMENT IN INDIAN COUNTRY?

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 11
PROTECTION OF SACRED SITES AND CULTURAL RESOURCES: AN OBSTACLE TO MINERAL DEVELOPMENT IN INDIAN COUNTRY?
Daniel W. Hester
Fredericks and Pelcyger
Boulder, Colorado

I INTRODUCTION

Mineral development on Indian lands and federal lands is subject to statutory and constitutional provisions that provide varying degrees of protection to the environment, to cultural and historical resources and to sites that are sacred to practitioners of traditional Indian religions. This paper will focus on the application of the National Environmental Policy Act (NEPA),¹ the Archaeological Resources Protection Act (ARPA),² and the National Historic Preservation Act (NHPA)³ to mineral development activities within the boundaries of an Indian reservation. The question of the protection afforded Indian sacred sites provided by the First Amendment and the American Indian Religious Freedom Act (AIRFA)⁴ will be analyzed as they apply to sacred sites located on federal lands as well as those within an Indian reservation.

A primary purpose of this paper is to highlight the changes in the application of these statutory and constitutional provisions to on-reservation activities. Indian tribes "are unique aggregations possessing attributes of sovereignty over both their members and their territory..."⁵ As a result of tribal sovereignty over reservation lands, federal statutes affecting the environment, cultural resources and sacred sites operate differently on an Indian reservation than they do elsewhere. Generally, federal law requires increased involvement of tribal government and consideration of tribal concerns when on-reservation activity is involved.

There is a good reason this assortment of statutory and constitutional provisions are reviewed in one paper. In the reported cases that involve impacts to Indian cultural resources and sacred sites, various combinations of the federal laws discussed below are frequently relied upon by Indian plaintiffs seeking protection of their rights and their cultural heritage.⁶ Furthermore, these federal laws contain several common requirements which can be effectively and efficiently satisfied simultaneously in one process. It is hoped that this paper will assist tribes and their business partners to structure their mineral development projects in a manner that insures compliance with applicable law

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and minimizes the impacts to the tribe's cultural resources and their religious sites.

II THE ROLE OF NEPA IN MINERAL DEVELOPMENT ON INDIAN RESERVATIONS

A. OVERVIEW

The National Environmental Policy Act (NEPA),⁷ enacted by Congress in 1969, requires that federal agencies give consideration to the environmental impacts of their actions. Judge Skelly Wright, in a case that was decided soon after NEPA was adopted, succinctly summarized NEPA's principal objective. "NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department...Perhaps the greatest importance of NEPA is to require...agencies to consider environmental issues just as they consider other matters within their mandates."⁸ (Emphasis in original.) NEPA is best known, and feared, for its requirement that an environmental impact statement (EIS) be prepared for every major federal action significantly affecting the quality of the human environment.⁹ The EIS must, among other things, detail "the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] alternatives to the proposed action...."¹⁰ Once the EIS is completed, the environmental consequences of the proposed action must then be integrated into the agency decision-making.¹¹

An initial issue under NEPA is whether it applies to projects on Indian reservations. It does.¹² The statute's requirements have been imposed on projects involving federal action on or affecting

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Indian lands.¹³ This paper will not attempt to explore all aspects of NEPA. Rather, the focus will be on the narrower question of NEPA's application to mineral development on Indian reservations, the role of tribal government in the EIS process and some unique issues that have arisen in NEPA cases involving Indian lands.

B. FEDERAL INVOLVEMENT IN MINERAL DEVELOPMENT ON INDIAN LANDS REQUIRING NEPA COMPLIANCE

NEPA compliance is required only where there is a major federal action. Because of the trust relationship that exists between the federal government and federally recognized Indian tribes,¹⁴ there is extensive involvement by the Department of Interior, the Bureau of Indian Affairs and other federal agencies in on-reservation activities involving Indian land and resources. NEPA's regulations broadly interpret the term major federal action to include "new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated or approved by federal agencies..."¹⁵

In the on-reservation mineral development context, the federal action most likely to implicate NEPA is the approval of leases by the Department of Interior. Federal law requires Interior approval of leases of Indian trust lands, including allotted trust lands owned by individual Indians, leased for mineral extraction.¹⁶ The

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Ninth and Tenth Circuits have both held that the federal approval of leases of Indian lands for mining purposes constitutes a major federal action under NEPA.¹⁷ And, in 1982, Congress enacted the Indian Mineral Development Act,¹⁸ which requires Interior approval of any agreement, joint venture or lease for mineral exploration, extraction, processing or development on Indian lands.¹⁹ In rendering its decision, the Act requires the Department of Interior to consider the potential environmental, social and cultural effects the lease or agreement may have on the tribe.²⁰ The Act further provides that Interior need not prepare any study on these efforts beyond that contained in an EIS prepared under NEPA if one is required.²¹

One reason Congress passed the Indian Mineral Development Act of 1982 was to provide tribes greater flexibility in developing their natural resources. Congress was concerned that the 1938 Indian Mineral Leasing Act only provided for leases which "ignores the possibility of joint ventures, joint production agreements, risk service contracts and other non-lease ventures [which] can provide the vehicle by which tribes can become directly involved in management decisions."²² Prior to passage of the 1982 Act, the Department of Interior had been asked to approve numerous non-lease ventures involving the development of mineral resources on Indian lands under 25 U.S.C. § 81. That section requires Interior approval of contracts for services relative to Indian lands. The Eighth Circuit has held that Interior approvals under 25 U.S.C. § 81 does not constitute a major federal action requiring compliance with

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NEPA.²³ The 1982 Act authorizes tribes to engage in a variety of mineral agreements and subjects all agreements to the same review and approval process.²⁴ While it has not been determined whether Interior's approval of non-lease mineral agreements under the 1982 Act constitutes a major federal action requiring NEPA compliance, it is clear that a review of the environmental, socioeconomic and cultural impacts of the agreement must be considered.

C. SPECIAL EIS ISSUES RELEVANT TO MINERAL DEVELOPMENT ON INDIAN LANDS

NEPA regulations require the involvement of tribal government when the impacts of an action within NEPA's jurisdiction will affect an Indian reservation. Tribal official consultation is especially important when an EIS is required. Beyond consultation requirements, the participation of tribal officials is essential to insure that the Department of Interior gives adequate consideration to the unique political and cultural concerns of the tribe in NEPA documents. And, as will be discussed later in this paper, tribal consultation may be mandated by other federal statutes if cultural, archaeological or religious sites or resources are threatened.²⁵

Once the Department of Interior determines on-reservation mineral development requires an EIS, any tribe affected by the project must be invited to participate in the scoping process to determine the range of issues to be addressed in the document.²⁶ Affected tribes are to be provided notice of NEPA related hearings,

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public meetings and to be provided access to related environmental documents.²⁷

The effective participation of the tribal government in the EIS process should be encouraged because of their unique concerns. Upon review of an EIS prepared for the Powder River coal region which would impact the Northern Cheyenne Tribe, Chief Judge Battin concluded the Tribe needed special treatment in the EIS.

Even if socioeconomic impacts on the Northern Cheyenne Tribe were somehow combined with the data from off-reservation communities and reported in the EIS on a country-wide basis, the assumption that the Northern Cheyenne Tribe can be treated merely as potentially affected citizens within the sale area is faulty. As stated earlier, the Northern Cheyenne Tribe is culturally discrete and its governmental structure, income, and services differ substantially from its off-reservation counterparts.²⁸

NEPA mandates consideration of issues that have special significance to Indian tribes. The Act states one of its objectives as the preservation of "important historic, cultural, and natural aspects of our national heritage..."²⁹ One court has even concluded that a project's cultural impact on a tribe may by itself be sufficient to require an EIS.³⁰ Any significant mineral development activity within an Indian reservation has great potential for having an impact on tribal members, on tribal government, and on tribal resources which are cognizable under...