The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations

• Author: Amanda M. Marincic
• Position: J.D. Candidate, The University of Iowa College of Law, 2018; B.A., University of St. Thomas, 2015
• Pages: 1777-1809

1777

The National Historic Preservation Act:

An Inadequate Attempt to Protect the

Cultural and Religious Sites of Native

Nations

Amanda M. Marincic*

ABSTRACT: The National Historic Preservation Act (“NHPA”) of 1966

established a federal policy of preserving historic places at the federal, state,

and local level. In 1992, the Act was amended to include sites of cultural

and religious significance to Native Nations on the National Register of

Historic Places. This Note argues how that inclusion, while a noble step in

the right direction for Native Nation relations with the federal government,

did not go far enough to adequately protect the cultural and religious sites of

Native Nations. This Note discusses the NHPA’s effectiveness in protecting

the cultural and religious sites of Native Nations, the origins and purpose of

the Act, the statutory framework of the Act, and the shortcomings of the Act.

The Note concludes by recommending that Congress amend the NHPA to

require that a federally-approved or funded project must not have any adverse

effects on a cultural or religious site in order to move forward, unless all of

the involved parties agree to move forward despite the adverse effects.

I.INTRODUCTION ........................................................................... 1778

II.BACKGROUND ............................................................................. 1781

A.THE NATIONAL HISTORIC PRESERVATION ACT AND

CULTURAL CONFLICTS ........................................................... 1781

B.THE STATUTORY FRAMEWORK OF THE NHPA ........................ 1786

C.THE ADMINISTRATIVE PROCEDURE ACT ................................. 1792

D.THE CIRCUIT SPLIT ON WHETHER THE NHPA CONFERS A

PRIVATE RIGHT OF ACTION .................................................... 1793

III. PROBLEMS AND ANALYSIS ............................................................ 1794

*

J.D. Candidate, The University of Iowa College of Law, 2018; B.A., University of

St. Thomas, 2015. I would like to thank the Iowa Law Review editorial boards for Volumes 102

and 103 for their help in editing this Note. I would also like to thank my family and friends for

their support, especially my parents, Patricia and Andrew Marincic, and my sister, Emily.

1778 IOWA LAW REVIEW [Vol. 103:1777

A.THE STATUTORY AND REGULATORY LANGUAGE OF THE

NHPA .................................................................................. 1795

1.The Statute and Regulations Provide Little

Actual Protection to Native Interests ......................... 1795

2.Section 106 Consultation is Too Easily Met .............. 1796

3.The Statute and Regulations Inherently

Disrespect Sovereign Immunity ................................. 1797

B.THE LACK OF ADEQUATE JUDICIAL REVIEW ............................. 1799

1.Standard of Review of Agency Decisions ................... 1800

2.The Circuit Split on the Private Right of Action....... 1802

3.Waiver of Sovereign Immunity ................................... 1804

IV. RECOMMENDATIONS ................................................................... 1806

A.THE NHPA SHOULD BE AMENDED TO PROVIDE THAT AN

UNDERTAKING CANNOT ADVERSELY AFFECT A HISTORIC

SITE ...................................................................................... 1806

B.CONGRESS SHOULD AMEND THE NHPA TO EXPLICITLY

CONFER A PRIVATE RIGHT OF ACTION .................................... 1808

V. CONCLUSION .............................................................................. 1809

I. INTRODUCTION

Since Europeans first set foot in North America, conflicts between Native

Nations and North American governments have been rampant. Both Native

Nations and the United States’ government have attempted to ease tensions,

with some attempts more genuine than others. However, the United States’

government has consistently disrespected Native Nations. From broken

treaties, forced assimilation, brutal massacres, and mass removal of entire

tribes to different parts of the country, the United States’ disregard toward

Native Nations’ lives and cultures has been a consistent theme in Native

American relations.1

For centuries, North American governments recognized the sovereignty

of Native Nations, primarily evidenced by treaty-making.2 In 1871, however,

the United States effectively broke with this tradition by discontinuing treaty-

making, an action which effectively relegated Native Nations to a position

1. For an eloquent account of the major points of Native Nations’ interactions with the

early European settlers and a more detailed narrative of the western Native Nations’ dealings with

the growing United States, see generally DEE BRO WN, BURY MY HEART AT WOUNDED KNEE: AN

INDIAN HISTORY OF THE AMERICAN WEST (1970). For a rich discussion of Euro-Americans’

changing perception of the Native peoples from desired allies to “inferior races,” see generally

RICHARD WHITE, THE MIDDLE GROUND: INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES

REGION, 1650–1815 (2d ed. 2011).

2. See WHITE, supra note 1, at 435–36.

2018] THE NATIONAL HISTORIC PRESERVATION ACT 1779

unequal to the federal government.3 The effect of this action was

compounded by the passage of the Dawes Act in 1887. The Dawes Act gave

the president of the United States the power to unilaterally divide reservation

land to allot the land to individual Native Americans.4 Furthermore, the Act

asserted federal law over Native Americans.5 The Dawes Act not only forced

upon Native Americans Western views of property ownership and

individualized society, but the Act also effectively extended the authority of

the federal government directly over Native Americans on reservations.6 Since

the passage of the Dawes Act, tensions between Native Nations and the federal

government have not eased.

The National Historic Preservation Act (“NHPA”), as amended in 1992

to include Native cultural and religious sites on the National Historic Register,

is arguably a step in the right direction for Native American relations.

However, the NHPA does not account for the cultural differences that prevent

understanding of Native Nations’ religions and cultures. This failure of

understanding in turn prevents adequate protection of Native sites. This Note

argues that, while a commendable step, the NHPA does not go far enough in

protecting Native Nations’ cultural, religious, and historic sites.7

The NHPA’s ability to effectively protect Native Nations’ cultural sites is

hampered by the difficulties the statute itself imposes, as well as the cultural

barriers between Native Nations and the United States. The NHPA provides

one of the few avenues for Native Nations to protect their cultural sites.8

Strengthening the NHPA would not only provide more effective protection

of Native Nations’ cultural sites, but it would also signal to Native Nations that

the United States is serious about respecting Native Nations’ culture, religion,

and sovereignty.

Beginning in 2016, the Standing Rock Sioux Tribe engaged in a highly-

publicized, year-long legal battle with Energy Transfer Partners regarding the

construction of the Dakota Access Pipeline (“DAPL”). The Tribe initially

3. Charles Rennick, Comment, The National Historic Preservation Act: San Carlos Apache

Tribe v. United States and the Administrative Roadblock to Preserving Native American Culture, 41 NEW

ENG. L. REV. 67, 69 (2006) (citing Sharon O’Brien, Tribal Governments, in AMERICAN INDIANS AND

U.S. POLITICS: A COMPANION READER 4, 42 (John M. Meyer ed., 2002)).

4. Dawes Severalty Act of 1887, ch. 119, 24 Stat. 388, 388 (repealed 2000).

5. Id.

6. Id.

7. The NHPA explicitly states that agencies must consult Native tribes when an

undertaking will affect property that has a religious or cultural connection to those tribes.

Throughout this Note, “cultural sites” includes both religious and cultural sites.

8. Another avenue is the First Amendment, which is often ineffective. See Peter J. Gardner,

The First Amendment’s Unfulfilled Promise in Protecting Native American Sacred Sites: Is the National

Historic Preservation Act a Better Alternative?, 47 S.D. L. REV. 68, 72 (2002) (“[T]he First

Amendment may not ‘be asserted to deprive the public of its normal use of an area,’ and th e use

by . . . ‘relatively few persons of public lands for religious purposes does not release the

government from its statutory responsibility to manage such lands for the benefit of the public at

large.’” (footnotes omitted)).