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PROTECTING THE TRIBAL SACRED:CONSULTATION UNDER THE FEDERAL CULTURAL PROPERTY LAWS

Jeanette WolfleyAssistant Professor University of New Mexico School of Law

What are Cultural Resources?Cultural resources must be defined by the particular tribe and in the particular contextIncludes sacred sites where ceremonies were conducted, spiritual renewals , locations for gathering of medicinal plants and minerals or for use in ceremoniesLocated on and off-reservation in tribal aboriginal territoriesHow are cultural resources tied to tribal cultures and impacted?Origin or creation storiesSacred landscapesStories of plants, animals, birdsSongsPrayers Ceremonies and practicesLanguagesGatherersSpiritual, medicine person, societies, familiesCommunity, societyNational Historic Preservation ActEnacted in 1966 to protect historic and cultural properties. 16 U.S.C. Sec. 470 to 470W-6

Amended in 1992 to: (1) provide opportunities for tribes to manage cultural resource programs on Indian lands known as Tribal Historic Preservation Offices (or THPOs) and (2)establishes extensive federal agency consultation requirements with tribes when there is federal undertaking.The 1992 Amendments state that federal agencies shall consult with any Indian tribe and Native Hawaiian organization that attaches religious or cultural significance to properties that might be affected by a federal undertaking.16 U.S.C. Sec. 470a(d)(6((B)Section 106 ProcessSection 106 of NHPA requires each federal agency to do two things prior to carrying out, approving financial assistance to, or issuing a permit for a project that may affect properties listed or eligible for listing in the National Register of Historic Places Agency must consider the impact of project on historic propertiesAgency must seek the Advisory Councils comments on project

NHPANHPA is a procedural, not a substantive statuteThe Ninth Circuit has stated NHPA requires federal agencies to stop, look and listen before proceeding with an agency action. This stop, look and listen process imposes procedural obligations on federal agencies to inventory historic properties, and consult with Indian tribes and SHPOsTribes have a right to be consulted regardless of where the federal undertaking is located, even outside the reservation boundariesStep 1: Federal UndertakingThe existence of federal undertaking is the trigger for Section 106 compliance. If no undertaking, then the requirements of Section 106 do not apply.To what sorts of actions does Section 106 apply?Direct undertaking by a federal agencies Dam constructionBuilding demolitionConstruction of fences and livestock watering facilitiesMost ground disturbing activities under jurisdiction of federal agenciesIndirect undertaking by federal agency Federal financial assistance grants for housing, transportationIndirect assistance like block grants for community development or law enforcementFederal approvals, permits or licenses for non-federal activities are undertakings Approval of mining activitiesAuthorizations for activities or use of public lands under the jurisdiction of Forest Service or BLMPermits include Grants of rights-of-way across public landsOn the ground activities carried out pursuant to a federal lease permit or license e.g. placement of rip-rap in Colorado River was and NHPA undertaking

Generally, courts will examine the type of federal approval given to the project and whether approval was a prerequisite to projectThe key questions to ask are:Will the project be carried out by or on behalf of a federal agency?Will federal funds be used?Will any federal permits, license or approval be required?If no, then there is no undertaking and the process is over.Step 2: Consult to Identify Cultural PropertiesIf an undertaking exists, federal agency must begin the Section 106 process by identifying any National Register listed or eligible properties in the area of potential effects. The 1992 amendments protect [p]roperties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register 16 USC Sec. 470w(5)Prior to 1992 amendments, Bulletin No. 38 established guidelines for Traditional Cultural Properties (TCPs) Under Bulletin 38, natural objects or landscapes associated with the traditional beliefs of a Native American group about its origin, its cultural history, or the nature of the world may be National Register eligible, and subject to NHPA protection.

Culture is understood to include the traditions, beliefs, practices, lifeways, arts, crafts, and social institutions of any community, be it an Indian tribe, a local ethnic group, or the people of the nation as a whole. Bulletin 38.Areas like mountain peaks, valleys, and buttes may be considered TCPs.Identification of TCPs is accomplished by the federal agency Reviewing existing informationSeeking information from appropriate consulting partiesTribal consultationTribal engagement with federal agency is imperative at this point educate and identify the TCPs

Confidentiality of information is a critical factor for many tribesConfidentiality is critical for religious and cultural beliefs but also to protect the integrity of the sites.Agency must make a reasonable and good faith effort to identify sites and as part of its Section 106 analysis. 36 CFR Sec. 800.4(b0(1).Federal agency must be careful and diligent concerning its consultation obligations under Section 106.In Sandia Pueblo v. United States, the Tenth Circuit found the USFS failed to comply with Section 106 requirements concerning identification of historic properties and consultation with Indian tribes and Pueblos concerning the Las Huertas Canyon in the Sandia Mountains.The Tenth Circuit court stated,Because communications from the tribesindicated the existence of traditional culturalproperties and because the Forest Service should have known that tribal customs mightrestrict the ready disclosure of specific information,we hold that the agency did not reasonable pursue the information necessary to evaluate the canyons eligibility for inclusion in the National Register.Step 3: Assess Adverse Effects of the UndertakingIf historic properties are found, then the effect of the agency undertaking must be assessed.An effect occurs (1) whenever any condition of the undertaking causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archeological or cultural characteristics that qualify the property for the National Register, or (2) when an undertaking changes the integrity of location, design, setting, materials, workmanship, feeling or association of the propertyWhen an effect is identified, the federal agency in consultation with the tribe/SHPO must determine if the effect would be adverse.Adverse effects include destruction, damage, alteration, removal , or change in the character of the property.An agency, with the SHPO/THPO can make a finding of no adverse impact on the property.If there is no adverse effect, the Section 106 process is over Step 4: Resolve Adverse Effects of UndertakingIf an adverse effect is found, the federal agency must prepare a Preliminary Case report and request comments from the Advisory Council and consult to seek ways to avoid, mitigate, or minimize the adverse effects. See 36 CFR Sec. 800.6(a), (b).Where the parties can agree upon how the adverse effects can be resolved, a MOA is developed. Once signed it evidences the federal agencys compliance with Section 106.In Navajo Nation et al v. U.S. Forest Service, the Forest Service made a Finding of Adverse Effect and sought ways to avoid, minimize or mitigate adverse effects. An MOA was reached which required the USFS to continue to consult with tribes, and guarantee access to the peaks for traditional cultural activities.When challenged, the district court and Ninth Circuit held the MOA fully satisfied the USFS obligations under the NHPA.If adverse effects remain unresolved, the agency may reach a final decision, and notify the parties and public.Native American Graves Protection and Repatriation ActEnacted in 1990NAGPRA has two main features 1.Repatriation of collections in the possession of federal agencies and institutions receiving federal funds, and2.Disposition of NA remains and cultural items discovered on federal or tribal lands after November 16, 1990.NAGPRA applies to human remains defined as the physical remains of a human body of a person of NA ancestry. 43 CFR Sec. 10.2(d)(1).The DOI interpreted this to mean remains belonging to a culture predating European exploration, whether or not the remains are related to an existing Indian tribe.In Bonnischsen v. U.S., (aka Kennewick Man), 367 F.3d 864 (9th Cir. 2004), 9,000 year-old human remains were found on lands managed by the Army Corps of Engineers.The Corps repatriated under NAGPRA, and the decision was challenged by a group of scientists who wanted to study the remains. The case was remanded.The Corp requested DOI assistance who determined the remains were NA and affiliated with several tribes making a claim for them. The Corp denied the plaintiffs request to study. Plaintiffs sought judicial review to the Ninth Circuit.The Ninth Circuit held that human remains must bear a significant relationship to a presently existing tribal people or culture to be Native American.There are two types of removal from or excavation of NA cultural items from federal or tribal lands.1. Intentional. Where an agreement or consultation has resulted in a plan or agreement prior to the discoery of a NAGPRA protected item, the discovery is called an intentional excavation. The disposition of the items must follow the plan or agreement. 2. Unintentional excavation or discovery. The person must notify the federal or tribal official immediately upon discovery of NAGPRA items or remains.NAGPRA provides a process of cessation of activities, notification and protection of the cultural items.Removal of cultural items from tribal lands without permission of the tribe is a violation of NAGPRA and is subject to criminal penalties. U.S. v. Carrow, 119 F.3d 796 (10th Cir. 1997)

National Environmental Policy ActEnacted in 1969With regard to cultural property issues, NEPA states that it is the continuing responsibility of the Federal Government to use all practical means to, among other things, preserve important historic, cultural, and natural aspects of our national heritage. 42 U.S.C. Sec. 4331(b)(4)NEPA encourages coordination Section 106 responsibilities with NEPA reviews, and agencies may use NEPA process to comply with NHPA, Sec. 800.8(c).One way of addressing this is to develop an Environmental Impact Statement which must be include in every federal agencys recommendation or report on major federal actions significantly affecting the quality of the human environment. 42 U.S.C. Sec. 4332(e)What is a major federal action?Projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agenciesAdoption of official policy, such as rules, regulationsAdoption of formal plans which guide or prescribe alternative uses of federal resourcesApproval of specific projects or permitsLike the NHPA, NEPA is a procedural statute requiring no specific outcome.Tribal consultation comes into play when developing the EIS.In Havasupai Tribe v. U.S. , 752 F. Supp. 1471 (D. Ariz. 1990), affd 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959 (1992), Forest Service proposed in a EIS to develop a uranium mine on aboriginal lands of Tribe. Tribe contended federal agency did not adequately consider its religious and cultural interests in the mine site.However, tribe refused to identify or provide the location of the specific sites they claimed were threatened.The District Court noted the many efforts the agency has engaged in to consider the tribes cultural concerns, and held that the agency had acted reasonably in drafting the EIS

Archeological Resources Protection ActEnacted in 1979Purpose is to secure for the present and future benefit of the American People the protection of archaeological resources and sites. 16 U.S.C. Sec. 470aa(b)Creates a permitting scheme designed to foster cooperation between researchers and federal land managers.ARPAs enforcement provisions render injury or disturbance of archeological remains on public landsand Indian lands a crime, punishable by criminal and civil penalties.ARPA prohibits the sale, offer for sale or transportation of archeological resources removed from public or Indian land in violation of the law, and prohibits transportation of such resources in interstate or international commerce in violation of state or local law. 16 U.S.C. Sec. 470ee(c).Archeological resource is defined as any material remains of past human life or activities which are of archeological interest [and] is a least 100 years of age. 16 U.S.C. Sec. 470bb(1)ARPA requires that Indian tribes that own or have jurisdiction over lands from which archeological resources are removed under an ARPA permit must consent to the disposition of such resources. 16 U.S.C. Sec. 470dd.ARPA does not require a permit for activities already provided for under other authorities, i.e. mining, mineral leasing, reclamation and other multiple uses.Tribal and State LawsIn addition to federal protections, many tribes and states have enacted laws protecting cultural resourcesCultural resources located on state or private lands are outside the scope of federal jurisdiction. Individual state laws should be consulted.For example, New Mexico has a Cultural Properties Act with a detailed permitting scheme for excavation and disposition of remains, N.M. Stat. Ann. 18-6-1 to 23