CULTURAL RESOURCES AND HISTORIC PRESERVATION IN INDIAN COUNTRY: An Outline of Federal Law

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PROTECTING SACRED LANDS AND TRADITIONAL CULTURAL
PLACES WITH CULTURAL RESOURCES LAW An Outline of
Federal Law (with some thoughts on biodiversity)
By Dean Suagee Director First Nations
Environmental Law Program Vermont Law School
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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
Assn v. Babbitt
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Overview of 3 Major Federal Statutes that apply
to Cultural Resources Historic Properties

• Historic Preservation Act (NHPA)

• Archaeological Resources Protection Act
  (ARPA)

• Native American Graves Protection
  Repatriation Act (NAGPRA)

Both ARPA NAGPRA establish permit reqs. NHPA
establishes a review consultation req.
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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)

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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
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Traditional Cultural Properties (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 Communitys History, 2.
Important in Maintaining the Continuing
Cultural Identity of Community

• Indian sacred sites as that term is used in an
  Executive Order 13007 (issued in 1996) may be
  TCPs.

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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

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

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WWW.achp.gov/regsflow.html
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South Lawrence Trafficway, Kansas
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Proposed Imperial Mine, California
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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

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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

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Native American Graves Protection and
Repatriation Act(NAGPRA)

• Places and Things Covered
• 1. Human Remains
• 2. Cultural Items
• 3. Federal Lands
• 4. Tribal Lands

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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)

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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

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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

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BIODIVERSITY AND TRADITIONAL CULTURAL
PROPERTIESIN 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?

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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

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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

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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.

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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?