CHAPTER 6 MANAGING CULTURAL RESOURCE ISSUES ON INDIAN LANDS
| Jurisdiction | United States |
(Mar 2011)
MANAGING CULTURAL RESOURCE ISSUES ON INDIAN LANDS
Wellborn Sullivan Meck & Tooley, P.C.
Denver, Colorado
REBECCA W. WATSON is a shareholder with the law firm Welborn Sullivan Meck and Tooley, P.C. Ms. Watson has more than 30 years of legal and policy experience in the fields of conventional and renewable energy, natural resources and federal environmental law. As Assistant Secretary of the Interior Department, she had oversight of the Bureau of Land Management, Minerals Management Service and the Office of Surface Mining and led 12,000 employees and managed a $1 billion budget. Prior to her service in the Interior Department, Ms. Watson served as the Assistant General Counsel for Energy Policy at the U. S. Department of Energy in the George H. W. Bush administration. Ms. Watson is a graduate of the University of Denver Law School and has been a partner and counsel in two Washington D.C. law firms and served as Managing Partner for a firm in Helena, Montana. She began the practice of law in Wyoming. Ms. Watson focuses her practice on public land access and development for solar, wind, geothermal, wood biomass and oil and gas with an emphasis on federal environmental law. She represented the first solar project on federal lands, prepared industry comments on the Geothermal Steam Act of 2005, advised wind energy developers on mineral rights and counseled companies permitting natural gas wells and pipelines.
I. Introduction
Opportunities for tribes and their partners to engage in economic development projects on Indian lands are at a high. A strong interest in developing "new energy" (as well as conventional energy) on Western public lands has brought a renewed focus to the natural resources on tribal lands. The scale of renewable energy projects and the need for new transmission make the large expanses of land and abundant resources found on federal and Indian lands attractive locations for renewable energy projects. Like federal lands, however, Indian lands carry an added layer of federal laws and bureaucracy that can be a disincentive to some private developers. This paper will focus on an area of law-cultural resource protection-that applies to federal and Indian lands.1 Knowledge of, experience in and sensitivity to managing cultural resource considerations can make the difference between a project that is timely and successfully completed and a project that is subject to delay or community resistance. Project proponents that can successfully manage cultural resource compliance may find opportunities on Indian and federal lands that other developers have ignored. Tribes that have developed "blueprints" for cultural resource compliance on their reservations may find new business coming to their communities.
This is an area of law that is complex, first, because it is a reflection of the complicated, and changing, relationship between the federal government and Indian tribes2 and Indian tribes and the larger community. Second, multiple federal and tribal laws overlap and require a coordinated compliance strategy. Two fundamental laws that apply to activities on tribal lands--the National Environmental Policy Act ("NEPA")3 and the National Historic Preservation Act ("NHPA")4 --create complex bureaucratic processes with multiple players that are not always well-meshed. Two other federal statutes that apply in certain circumstances, the Native
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American Graves Protection and Restoration Act ("NAGPRA")5 and the Archeological Resource Protection Act ("ARPA")6 overlap the coverage of NHPA, but have different requirements and processes. Each tribe may have its own individual cultural resource laws that require compliance. Finally, addressing cultural resource compliance requires something unique in federal environmental law-recognition of and sensitivity to religious, spiritual and cultural values. Two other federal laws, the American Indian Religious Freedom Act ("AIRFA")7 and Religious Freedom Restoration Act ("RFRA")8 have attempted to assist with this consideration.
This paper begins with an introductory discussion of several key concepts that are foundational to cultural resource protection on Indian lands. This section is followed by detailed discussions of the several relevant federal laws on cultural resource protection, including: NEPA; NHPA Section 106 process and tribal cultural resource protection laws; NAGPRA; ARPA; and AIRFA and RFRA in the context of Indian sacred sites and environmental justice considerations.
II. Key Concepts in Cultural Resource Law Compliance
A brief discussion of several fundamental Indian law concepts may be helpful before approaching the particular requirements of the individual cultural resource laws. To be sure, it is well beyond the scope of this paper to discuss these topics in detail, but identification of these principles should help illuminate the requirements of federal cultural resource protection. Recognition of tribal sovereignty, the government-to-government relationship and federal trust responsibility is an important first step in understanding how tribes relate to project proponents, federal agencies and state and local governments in the context of cultural resource management. Consultation implements these legal relationships and an understanding of Indian Country will clarify the applicability of certain cultural resource laws.
A. Tribal Sovereignty and the "Government to Government" Relationship
The concept of inherent tribal sovereignty is critical to understanding the relationship of tribes to the federal government and to non-federal third parties. Sovereignty is the inherent authority of indigenous tribes, as domestic nations, to govern themselves within the borders of the United States as delineated in treaties, the Constitution, federal law, executive orders and court decisions.9 In 1831, the U.S. Supreme Court held that the tribes reserved their sovereign powers, subject to the authority of Congress over Indian affairs, and that state laws did not apply to the tribes.10 More recently, the Court has limited the scope of a tribe's sovereignty on their reservation as to nonmembers in criminal11 and civil12 matters. The "government-to-
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government" relationship recognizes this unique legal relationship between sovereigns-an Indian tribe and the federal government. The government-to-government relationship was described by President Clinton in an Executive Memorandum13 and directs agencies that undertake activities affecting "Native American tribal rights or trust resources" to implement them in a "knowledgeable, sensitive manner respectful of tribal sovereignty." More significantly, agencies were ordered to consult, "to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments."14 The government-to-government relationship requires direct consultation between appropriate federal officers and tribal officials.
Practice Tips:
• Sovereignty will dictate who/how to approach a tribe.
• State and local laws are limited on Indian lands.
B. Federal Trust Responsibility
The doctrine of the federal government's trust responsibility to Indian tribes begins with the treaties between the United States and the tribes and the holding of the U.S. Supreme Court that tribes are "domestic dependent nations" whose "relation to the United States resembles that of a ward to his guardian."15 As early as 1790, Congress imposed limitations on tribal land sales general trust relationship between the United States and Indian people"17 where the federal government "has charged itself with moral obligations of the highest responsibility and trust."18 The federal trust responsibility to Indian tribes applies to all federal agencies, and most agencies have developed policies and procedures to implement this responsibility.19 Inherent in this relationship is an enforceable fiduciary responsibility on the part of the federal government to Indian tribes to protect their lands and resources, unless altered by mutual agreement.20
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Typically, the Bureau of Indian Affairs ("BIA") will exercise the federal government's approval authority over any agreement to operate on tribal or allotted lands. It is the BIA's approval that is the "federal action" triggering compliance with federal cultural resource laws.
C. Consultation
Consultation is a key component of how the government's trust responsibility and recognition of tribal sovereignty are implemented. Consultation is a critical component of each of the laws to be discussed-NEPA, NHPA, NAGPRA, ARPA, AIRFA, and RFRA.21 As President Obama noted at his first tribal meeting, "[m]eaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship."22 In 2000, President George W. Bush issued an Executive Order directing federal agencies to improve their consultation and coordination with tribal governments.23 In November, 2009, President Obama identified a failure of the federal government to implement the 2000 Executive Order and directed all federal agencies to promptly develop consultation implementation plans.24 At its most basic, consultation consists of notifying a tribe about a proposed project and seeking their input. "Successful consultation is a two-way exchange of information, a willingness to listen, and an attempt to understand and genuinely consider each other's opinions, beliefs, and desired outcomes.25 Project proponents should tread carefully in initiating consultation with an affected tribe. It is important, first, to consult with the federal agency that is preparing the NEPA document or has the statutory duty to...
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