Property rights and sacred sites: federal regulatory responses to American Indian religious claims on public land.

• Author: Yablon, Marcia

INTRODUCTION

According to the National Trust for Historic Preservation, the Kw'st'an Sacred Sites at Indian Pass in Imperial County, California, are one of America's eleven most endangered historic places. (1) For thousands of years, American Indians from the Quechan tribe have undertaken spiritual pilgrimages to these sites and conducted religious ceremonies known as Keruk, in which they have cremated their dead and assisted in bringing them to the next world. (2) These sites are on the National Trust's list because, in addition to being rich in spiritual and cultural significance, Indian Pass is also rich in gold. Glamis Gold Ltd., a Canadian mining company, is seeking permission to extract the gold; if granted, such permission will result in "a massive 1,600-acre cyanide heap-leach gold-mine that will leave a gaping hole in the ground and a skyscraper-size mound of toxic waste." (3)

The situation at Indian Pass is not unique. Dozens and potentially hundreds of Indian sacred sites face similar threats. (4) For those seeking to protect such sites, both the problems and the solution are clear. Most sacred sites supporters believe that the Supreme Court's unwillingness to find that the First Amendment mandates the protection of sacred sites has led to this precarious and distressing situation. (5) They further believe that the only way to ensure the protection of these sites is either to overrule the Court's previous decisions (6) or to pass a comprehensive statute giving tribes the power to prevent the destruction or development of their sacred sites. (7) Those holding this view believe that anything less than these types of sweeping measures will be disastrous for the future of Indian sacred sites. Yet as widespread as this belief is, it may not be correct. Furthermore, it may actually be a good thing for society as a whole that these proposed protections have not succeeded.

Indian sacred sites are lands that hold significant spiritual value for an Indian tribe. These sites may be discrete geological monuments such as Bear Lodge (also known as Devils Tower) in Wyoming, a sixty-million-year-old rock formation made from the hardened magma of an extinct volcano, (8) or wide swaths of land such as the Indian Pass Sacred Sites, a series of trails running from Los Angeles to Mexico. (9) Some sites factor into a tribe's creation myth or are vital to the continuing practice of a tribe's religion. (10) For example, for the past 10,000 years, the Lakota have performed their most important religious ceremonies, such as yearly Sun Dances, at Bear Lodge. (11) Conversely, other sites are used less regularly and for multiple purposes. The Quechan tribe has used Indian Pass for a variety of religious purposes, including Keruk, the ceremony of bringing the dead into the next world; vision quests, where tribal members run in search of visions; and prayer circles. (12)

Just as there are different types of sacred sites, these sites face many different types of threats. For instance, Bear Lodge is a national monument and, as such, is in no danger of being demolished or developed. But for those tribes that believe Bear Lodge is a sacred site, simply having the site open to the public--especially for activities such as rock climbing--is seen as a serious threat. The threat to Indian Pass is even starker: Parts of it face destruction if developers are given the right to dig up the land and turn it into a leach mine. Although the threats to these sites are serious, the costs of protecting them are just as significant. The difficulty with sacred sites protection is that preventing development and other uses of these lands often has a huge economic impact. For instance, the Glamis gold mine alone may be worth as much as fifty million dollars. (13)

All sacred sites controversies involve the issue of control: Who has the right to control how these sites are used and who gets to use them? The difficulty of the issue is compounded by its magnitude. There are literally tens of thousands of sacred sites. For example, in South Dakota's Black Hills alone, "It]here are hundreds and estimated thousands of sacred sites." (14) Similarly, the shores of the Missouri River "have hundreds of Indian graves and sacred sites." (15) Furthermore, many of these sites encompass vast expanses of land. Indian Pass is estimated to cover "hundreds of square miles in southern California." (16) An area extending as much as fifteen miles inland along the entire 1100-mile length of the California coast is also considered a sacred site. (17) In fact, an expansive definition of sacred sites could encompass a sizeable portion of the undeveloped land in the United States. Accordingly, who decides which sites get protected has enormous ramifications.

Currently, federal land management agencies are responsible for the majority of decisions regarding Indian sacred sites located on federal land. Given that, in the past, land management agencies were often responsible for the decisions to destroy sacred sites, it is little wonder that most tribes and sacred sites supporters are dubious that these agencies will provide any real protection. (18) But such mistrust may no longer be justified. Land management agencies are increasingly working to protect sacred sites, and in many instances such agencies are able to provide a form of protection that most of society would find preferable to the protections available through the courts or Congress. Unfortunately, many scholars are still so caught up in the perceived lack of broad sacred sites protection that they seem unable to acknowledge that many of these sites are being preserved without any sweeping protections. This Note argues that agency management of Indian sacred sites, in conjunction with statutory consultation provisions and backed by judicial enforcement, is the best form of protection for these sites. In addition, it shows that because of the effectiveness of agency protections, the persistent scholarly arguments for broader judicial or legislative protections are no longer appropriate. This Note also examines the problems with relying on exclusively judicial or legislative protection. It concludes that, because of their greater flexibility, agencies are able to offer a method of sacred sites protection that is better for society as a whole, even if it is less desirable from the viewpoint of individual tribes.

Part I examines the history of Indian sacred sites protection. It discusses the historic lack of agency protection for these sites, the attempt and failure to win judicial protection for them in Lyng v. Northwest Indian Cemetery Protective Ass'n, (19) and the impact of Lyng on later sacred sites protection efforts. Part II focuses on recent federal agency efforts to preserve sacred sites, the effectiveness of these efforts, and the reasons behind this change in agency policy. Part III argues that agencies are better able to consider the interests of all users of sacred sites, and therefore that agency protection, when combined with statutory consultation provisions and judicial enforcement, is preferable to the exclusively judicial and legislative protections typically sought by sacred sites advocates. Part III also addresses common criticisms of agency accommodation and explains why agency protection does not leave tribes at the mercy of agency goodwill and changing politics.

1. THE HISTORY OF INDIAN SACRED SITES PROTECTION

   The distrust many sacred sites advocates feel toward land management agencies is warranted. Historically, these agencies have frequently allowed, and even actively encouraged, the development of Indian sacred sites. In 1979, for instance, the U.S. Forest Service approved the development and expansion of the government-owned Snow Bowl ski area on the San Francisco Peaks in the Coconino National Forest of Arizona, despite knowing that the Peaks were sacred to both the Navajo and Hopi tribes. (20) Similarly, in 1963, the National Park Service built the Glen Canyon Dam in northern Arizona, creating Lake Powell and submerging a sacred Navajo prayer spot. In addition to cutting off access to these now-submerged lands, the formation of the lake dramatically increased the number of visitors to Rainbow Bridge, a geological wonder and an important Indian sacred site. (21) Before the creation of the lake, few tourists visited the bridge, but after the lake was created, the bridge became a popular tourist destination, adding to the desecration of the site. The increased tourism was actively encouraged by the Park Service, which licensed the operation of tour boats and other tourist activities around the bridge. (22) In yet another instance of agency involvement in sacred site destruction, the Tennessee Valley Authority--a federal agency created by Congress to provide flood control, navigation, and electric power in the Tennessee Valley region--decided to flood lands along the Little Tennessee River, including burial grounds that were sacred to the Cherokee and integral to their religious practices. (23)

   These are just some examples that demonstrate the indifference agencies have often shown in the past toward the protection of sacred sites and Indian culture. (24) It is this history of indifference that has convinced many scholars and tribal advocates that agencies will never protect Indian sacred sites and that the only way to preserve these lands is through judicial or legislative measures. (25)

   1. Sacred Sites Litigation Prior to Lyng

      Throughout the 1980s, Indian tribes brought numerous First Amendment suits challenging the constitutionality of developing Indian sacred sites located on federal land. These tribes based their challenges on free exercise grounds, claiming that development on lands they considered sacred would unconstitutionally prevent them from observing religious rituals connected to these sites. (26) However, even before the Supreme Court's decision in Lyng v. Northwest...