By: Dean Suagee Director First Nations Environmental Law Program Vermont Law School PROTECTING SACRED LANDS AND TRADITIONAL CULTURAL PLACES WITH CULTURAL RESOURCES LAW An Outline of Federal Law (with some thoughts on biodiversity)

THE FIRST AMENDMENT DOES NOT APPLY Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) Except maybe to justify “accommodation” through “voluntary” actions and avoid an Establishment Clause challenge -- Bear Lodge Multiple Use Ass’n v. Babbitt

Historic Preservation Act (NHPA) Overview of 3 Major Federal Statutes that apply to Cultural Resources & Historic Properties Archaeological Resources Protection Act (ARPA) Native American Graves Protection & Repatriation Act (NAGPRA) Both ARPA & NAGPRA establish permit reqs. NHPA establishes a review & consultation req.

NATIONAL HISTORIC PRESERVATION ACT (NHPA) Entities with Roles in the Program: National Park Service (NPS) Advisory Council on Historic Preservation All Federal Agencies State Historic Pres. Officers (SHPOs) Indian tribes Native Hawaiian organizations (NHOs)

National Register of Historic Places NHPA--protects places that are listed or eligible for listing on the National Register Criteria for Eligibility Associated w/Significant Events Associated w/the Lives of Significant Persons Distinctive Characteristics Yielded, or Likely to Yield, information Important in prehistory or history

Traditional Cultural Properties (TCPs): Indian “sacred sites” as that term is used in an Executive Order (issued in 1996) may be TCPs. A Property is Eligible for the National Register B/C Association w/Cultural Practices/Beliefs of a Living Community that are: 1. Rooted in that Community’s History, & 2. Important in Maintaining the Continuing Cultural Identity of Community

Roles & Rights of Tribes Lands within Tribal Territorial Jurisdiction A tribe can assume any or all of SHPO roles for “Tribal Lands” –All lands w/in the exterior boundaries of any Indian Reservation & –All dependent Indian Communities

---A right to be consulted in the section 106 process when an undertaking would affect a historic place with religious & cultural significance.--- Lands Beyond Tribal Jurisdiction

Requirements for Outcomes of the Section 106 Process Typically concluded by a Memo of Agreement No Agreement: –Agency decision to proceed w/undertaking must be made by the head of the agency--such a decision cannot be delegated National Historic Landmarks--must minimize harm Transportation funding--only if no prudent & feasible alternative

South Lawrence Trafficway, Kansas

Proposed Imperial Mine, California

13 Confidentiality Information on traditional cultural properties tends to be sensitive Information can be limited to need for determination of eligibility Information may be withheld from disclosure -- section 304 Agency may choose not to seek eligibility determination, and protect by alternative means

Penalties under ARPA Criminal -- If commercial or “archaeological value” and the cost of restoration and repair less than $500, a misdemeanor carrying up to 1 year incarceration and a $100,000 fine If over $500, a felony carrying up to 2 years incarceration and a $250,000 fine Civil penalties Civil forfeiture of equipment, vehicles, and tools used in the attempted or actual taking of protected archaeological resources

15 Native American Graves Protection and Repatriation Act (NAGPRA) Places and Things Covered 1. Human Remains 2. “Cultural Items” 3. Federal Lands 4. “Tribal Lands”

NAGPRA (cont.) Repatriation -- human remains and cultural items (funerary objects, sacred objects, and objects of cultural patrimony) currently held or controlled by federal agencies and “museums” Graves Protection -- human remains and cultural items embedded in federal and “tribal lands” Rights of “ownership or control” of items excavated or removed from federal or tribal lands after the enactment (November 1990)

NAGPRA (cont.) Protection of Graves and Imbedded Cultural Items 1. Intentional Excavations (a) Federal Lands (b) Tribal Lands 2. Discovery Situations Disposition of Human Remains and Cultural Items Enforcement 1. Federal Enforcement 2. Private Actions in Federal Court

18 Embedded Remains and Cultural Items on Federal and Tribal Lands Intentional Excavations –ARPA Permit –Tribal notice and consultation on federal lands; development of action plans –Tribal notice and consent on tribal lands; must have proof of consultation or consent Inadvertent discoveries –Notice and consultation –30 day cessation of activities –Reasonable effort to protect the items discovered

BIODIVERSITY AND TRADITIONAL CULTURAL PROPERTIES: IN SEARCH OF SYNERGY AND A PARADIGM SHIFT Preserving Biodiversity in an Age of Mass Extinction – Thesis: The policies underlying the Endangered Species Act and the efforts of Indian tribes and their members to carry on traditional cultural practices that make use of animals and plants do share some common ground, at least in theory. Can we find common ground in practice?

Critiques of the ESA Single Species Approach Is Too Narrow The Act Applies Too Late Threshold Set Too Low – Survival Rather than Recovery Penalizes Landowners Who Have Left Land Undisturbed

Traditional Cultural Places and Biodiversity Some Scenarios – Tribal cultural practices make use of the endangered or threatened species » (1) Listed species is an animal » (2) Listed species is a plant – Tribal cultural practices make use of species that live in community with listed species

Five Principles Assistance to Tribes for tribal programs to promote healthy ecosystems and avoid need for conservation restrictions, which shall only be imposed if five standards are met: – reasonable and necessary for conservation of species; – conservation purpose cannot be achieved by regulation of non-Indians; – least restrictive alternative; – no discrimination against Indian activities; and – voluntary tribal measures are not adequate.

Administration of the ESA – the Appendix to the Secretarial Order Recovery – (1) Solicit tribal participation if species occurs on Indian lands, affects trust resources, or affects exercise of tribal rights. – (2) Cooperate with tribes to minimize social, cultural and economic impacts. – (3) What if recovery plan affects a TCP?