CHAPTER 7 SACRED SITES AND CULTURAL RESOURCE PROTECTION: IMPLICATIONS FOR MINERAL DEVELOPMENT ON -- AND OFF -- INDIAN LANDS

• Jurisdiction: United States

Natural Resources Development in Indian Country
(Nov 2005)
CHAPTER 7
SACRED SITES AND CULTURAL RESOURCE PROTECTION: IMPLICATIONS FOR MINERAL DEVELOPMENT ON -- AND OFF -- INDIAN LANDS
Stan N. Harris ¹
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico
Carla Mattix
Office of the Solicitor
Division of Parks and Wildlife
Washington, D.C.

Stan Harris practices in the areas of natural resources law and commercial litigation, advising clients at the judicial, administrative, and legislative levels on federal, state, and local environmental issues. His practice involves the representation of parties in oil and gas industry disputes, mining transactions, cultural property, and Indian lands disputes. He has represented clients on environmental infrastructure matters, including advice regarding waste water and safe drinking water facilities. Mr. Harris also represents clients in the area of general commercial litigation, including employment, insurance, and products liability disputes. Most recently, Mr. Harris and Modrall Sperling's Walter E. Stern co-authored the American Bar Association textbook Cultural Property Law: A Practitioner's Guide to the Management, Protection, and Preservation of Heritage Resources (2004).

Carla Mattix is an attorney in the U.S. Department of the Interior, Office of the Solicitor. Since 1995, she has provided legal services and litigation support to the National Park Service in the areas of natural resources law, environmental law, historic and archeological preservation, intellectual property, museum collections and administration and Native American concerns. Ms. Mattix has a JD from the Georgetown University Law Center and a BS in Engineering from Boston University. She is a member of the Virginia and DC Bars and has been admitted to practice before the U.S. Patent and Trademark Office. She lectures frequently for the National Park Service on cultural and historic resource issues and intellectual property law.

I. Introduction

"Cultural resources" -- also known as cultural property and heritage resources, among other terms -- have been broadly defined as "the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives." ¹ Over the past fifty years, a growing recognition of the importance of these resources to the history and fabric of the American people has led to enactment of various laws attempting to preserve and protect the nation's cultural heritage.

However, many of America's cultural resources exist on federal lands that also contain other valuable resources. For example, Native American cultural resources -- which can include pre-historic Indian ruins, historic Indian sites, and sacred sites of continuing cultural and religious importance to specific Indian tribes -- are often found on federally-owned or administered lands that are also rich in commercially valuable mineral resources. As such, development of mineral resources on federal lands is often tempered by federal laws protecting cultural resources. Likewise, state and tribal cultural resource laws often impact mineral development on state, tribal, and even private lands.

As with so many areas of resource development, however, there is no single law that deals comprehensively with cultural resources. Instead, a patchwork of federal, state, and tribal laws addresses various aspects of cultural resource protection, through various means. Although this paper is not an exhaustive treatment of all laws concerning the protection of cultural resources, ² it does outline and describe some of the more important federal, state, and tribal laws affecting cultural properties that, in turn, may impact mineral development on and off Indian lands.

II. The National Historic Preservation Act ("NHPA").

a. Background

The National Historic Preservation Act of 1966 ("NHPA") ³ is the perhaps the most important -- and is certainly the most litigated -- federal statute pertaining to cultural resource issues. As Congress made clear in its findings for the NHPA, "the preservation of the Nation's irreplaceable historic and cultural heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans ...." ⁴

In so doing, Congress created a procedural mechanism whereby relevant federal agencies are required to consult with interested parties to identify historic properties, assess the adverse affects of federally funded or permitted undertakings on such historic properties, and attempt to mitigate any such adverse effects on those historic properties. Congress provided an important role in the process for the states through State Historic Preservation Officers ("SHPOs."). ⁵

Moreover, with regard to Native Americans in particular, Congress amended the NHPA in 1992 to recognize that cultural and traditional properties important to tribes may be eligible for consideration under the NHPA's consultation scheme. As important, the 1992 NHPA amendments created opportunities for federally recognized Indian tribes to assume formal responsibility for the preservation of significant historic properties on tribal lands. ⁶ Section 101(d)(2) gives tribes the ability to perform any or all of the functions of a SHPO with respect to tribal lands. There are currently 39 Indian tribes that have established Tribal Historic Preservation Offices ("THPOs"). ⁷

Federal agencies must consult with the THPOs in lieu of the SHPO for undertakings occurring on, or affecting historic properties on, tribal lands. ⁸ Tribes have the option to participate in the program, and it is solely their decision. The NHPA amendments creating THPOs called for the Secretary of Interior to establish the requirements for an Indian tribe to assume SHPO duties. ⁹ The National Park Service is the agency the Secretary of the Interior has designated to administer NHPA programs delegated to it by the statute. NPS is developing a rule to establish the formal process by which a tribe may secure the Secretary of the Interior's approval to assume SHPO duties on tribal land. ¹⁰ In the absence of final regulations, NPS reviews tribal proposals to date in accordance with the existing statutory and regulatory requirements for SHPOs. ¹¹

b. Section 106 Consultation

The Advisory Council on Historic Preservation ("ACHP") is the entity charged to promulgate regulations implementing the consultation section of the NHPA, codified at 16 U.S.C. Section 470f, but more commonly known as "Section 106." ¹² The ACHP's most recent comprehensive rulemaking was issued in 2000, which regulations incorporated the requirements of the 1992 amendments. ¹³ Also, in 2004 the ACHP issued limited revisions to the Section 106 regulations in response to federal court decisions invalidating certain of the 2000 regulations. ¹⁴ Although the NHPA is essentially a procedural statute, requiring no particular substantive result, ¹⁵ failure to follow the NHPA's procedural requirements when applicable can result in an injuction of the undertaking. ¹⁶ In this regard, the NHPA is similar in effect to the National Environmental Policy Act. ¹⁷

Section 106 is both the heart and the hammer of the NHPA. Specifically, Section 106 mandates that any federal agency having jurisdiction over any proposed federal or federally assisted "undertaking" shall, prior to the approval of the expenditure of any funds or issuance of any license for the undertaking, (1) "take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register," and (2) "afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking." Broadly speaking, therefore, Section 106, when applicable, requires federal agencies to consult with appropriate consulting parties ¹⁸ before undertaking actions that might affect certain cultural properties.

In this regard, the Section 106 regulations state that such consultation should be coordinated with other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, and the Archaeological Resources Protection Act (which statutes are also discussed in greater detail below). ¹⁹ Further, although the regulations establish several potential steps in conducting such consultations (which steps are discussed below), consultation can be expedited by addressing multiple steps when the agency and the SHPO/TPHO agree it is appropriate. ²⁰

i. Step 1: Is the action an "undertaking?"

The first step of the Section 106 process is determining whether a proposed action is an "undertaking." In National Mining Association v. Fowler, ²¹ the federal appeals court with direct jurisdiction over the ACHP ruled that a definition of a Section 106 "undertaking" that included activities subject to state or local regulation administered pursuant to a delegation or approval by a federal agency was invalid because Section 106 "'applies by its terms only to federally funded or federally licensed undertakings."' ²² The ACHP accordingly revised its rule, which now defines a Section 106 undertaking as:

a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval. ²³

The important consideration, therefore, is whether any federal funds will be used, or any...