⚖️Native American Legal Studies Unit 7 – Sacred Sites and Cultural Preservation

Key Concepts and Definitions

• Sacred sites are places of spiritual, cultural, and historical significance to Native American communities
  • Can include mountains, rivers, burial grounds, and ceremonial sites
• Cultural preservation refers to the protection and maintenance of a community's cultural heritage, including tangible and intangible elements
• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
  • Recognized by the U.S. government through treaties and legal precedents
• Free, prior, and informed consent (FPIC) is the principle that indigenous communities have the right to be consulted and give consent before any actions affecting their lands or resources are taken
• Traditional Cultural Properties (TCPs) are sites eligible for inclusion in the National Register of Historic Places due to their cultural significance to a living community
• Cultural resource management (CRM) is the process of identifying, assessing, and protecting cultural resources, including sacred sites and traditional cultural properties

Historical Context

• Native American sacred sites have been threatened by colonization, westward expansion, and development since the arrival of European settlers
• The Indian Removal Act of 1830 forced many Native American tribes from their ancestral lands, disrupting their connections to sacred sites
• The General Allotment Act of 1887 (Dawes Act) divided tribal lands into individual allotments, leading to the loss of communal land and access to sacred sites
• The Indian Reorganization Act of 1934 aimed to restore tribal sovereignty and protect Native American lands, but many sacred sites remained unprotected
• The termination era of the 1950s and 1960s further eroded tribal sovereignty and led to the loss of more sacred sites
• The American Indian Religious Freedom Act (AIRFA) of 1978 recognized the right of Native Americans to practice their traditional religions and access sacred sites

Legal Framework

• The National Historic Preservation Act (NHPA) of 1966 established the National Register of Historic Places and the Section 106 review process for federal undertakings
  • Section 106 requires federal agencies to consider the effects of their actions on historic properties, including sacred sites
• The American Indian Religious Freedom Act (AIRFA) of 1978 affirmed the right of Native Americans to practice their traditional religions and access sacred sites
  • However, AIRFA did not provide specific legal protections for sacred sites
• The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 requires federal agencies and institutions receiving federal funds to return Native American cultural items, including human remains and sacred objects, to lineal descendants or culturally affiliated tribes
• Executive Order 13007 (1996) requires federal agencies to accommodate access to and ceremonial use of Native American sacred sites and avoid adversely affecting their physical integrity
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, recognizes the rights of indigenous peoples to maintain and protect their cultural heritage, including sacred sites

Sacred Sites: Identification and Significance

• Sacred sites are identified by Native American communities based on their cultural, spiritual, and historical significance
  • Significance may be tied to creation stories, ancestral connections, or ceremonial practices
• Sacred sites can include natural features such as mountains (Bear Butte), rivers (Colorado River), and forests, as well as human-made structures like burial mounds and rock art sites
• The significance of sacred sites is often tied to the continuation of traditional cultural practices and the maintenance of community identity
  • For example, the Sun Dance ceremony, practiced by many Plains tribes, is often held at sacred sites
• Sacred sites may also be associated with important historical events or figures, such as treaty signing locations or the birthplaces of significant leaders
• The identification and documentation of sacred sites often rely on the traditional knowledge of tribal elders and cultural practitioners
  • Oral histories, place names, and cultural maps can provide valuable information about the location and significance of sacred sites

Cultural Preservation Challenges

• Development projects, such as dams (Dakota Access Pipeline), mines, and roads, can threaten the physical integrity of sacred sites and disrupt traditional cultural practices
• The lack of specific legal protections for sacred sites leaves them vulnerable to damage or destruction
  • For example, the San Francisco Peaks in Arizona, sacred to several Southwest tribes, have been threatened by a proposed ski resort expansion
• Limited tribal resources and capacity can hinder efforts to identify, document, and protect sacred sites
• The need to maintain the confidentiality of sacred site locations to prevent vandalism or misuse can conflict with the requirements of legal protection processes
• The differing worldviews and values of Native American communities and dominant society can lead to misunderstandings and conflicts over the management of sacred sites
  • For instance, the use of sacred sites for recreational activities (rock climbing) may be seen as disrespectful by Native American communities
• Climate change and environmental degradation pose growing threats to sacred sites, particularly those tied to natural features or ecological systems

Case Studies and Landmark Decisions

• Lyng v. Northwest Indian Cemetery Protective Association (1988): The Supreme Court ruled that the Free Exercise Clause did not prohibit the U.S. Forest Service from constructing a road through a sacred site in the Six Rivers National Forest, despite the adverse effects on Native American religious practices
• Bear Lodge Multiple Use Association v. Babbitt (1998): The 10th Circuit Court of Appeals upheld the National Park Service's voluntary climbing ban at Devils Tower National Monument during the month of June to respect Native American ceremonial practices
• Navajo Nation v. U.S. Forest Service (2008): The 9th Circuit Court of Appeals ruled that the use of recycled wastewater to make artificial snow at a ski resort on the San Francisco Peaks did not violate the Religious Freedom Restoration Act (RFRA), despite the sacred significance of the peaks to several Southwest tribes
• Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (2016): The tribe challenged the construction of the Dakota Access Pipeline near their reservation, arguing that it threatened sacred sites and water resources. While the Obama administration halted construction for further review, the Trump administration later approved the pipeline's completion
• Bears Ears National Monument (2016): President Obama designated 1.35 million acres in southeastern Utah as a national monument, recognizing the area's sacred significance to several Native American tribes. However, President Trump later reduced the monument's size by 85%, sparking legal challenges from tribes and environmental groups

Contemporary Issues and Debates

• The tension between tribal sovereignty and federal land management policies continues to shape debates over sacred site protection
  • For example, the proposed Oak Flat copper mine in Arizona threatens a sacred site for the San Carlos Apache Tribe, but the project has been supported by some members of Congress
• The role of consultation and free, prior, and informed consent (FPIC) in sacred site protection is an ongoing point of contention
  • Some argue that current consultation processes under the NHPA and other laws are inadequate and do not give tribes a meaningful voice in decision-making
• The potential for co-management arrangements between tribes and federal agencies is being explored as a way to improve sacred site protection and incorporate traditional knowledge into land management practices
  • For instance, the Bears Ears Inter-Tribal Coalition has proposed a collaborative management plan for the Bears Ears National Monument
• The need for stronger legal protections for sacred sites, such as a "Native American Sacred Lands Act," is advocated by some tribal leaders and organizations
  • However, others caution that such legislation could lead to the disclosure of sensitive information about sacred site locations
• The growing recognition of the interconnections between sacred site protection, cultural preservation, and environmental conservation is shaping new alliances and strategies for advocacy
  • For example, the Standing Rock Sioux Tribe's opposition to the Dakota Access Pipeline garnered support from environmental groups and sparked a broader conversation about indigenous rights and climate justice

Strategies for Protection and Advocacy

• Strengthening tribal historic preservation programs and developing cultural resource management plans can help tribes proactively identify and protect sacred sites
  • For example, the Navajo Nation has established a Tribal Historic Preservation Officer (THPO) and a Cultural Resource Protection Act to manage cultural resources on Navajo lands
• Building coalitions with other tribes, environmental organizations, and human rights groups can amplify the voices of Native American communities and generate broader support for sacred site protection
  • The Bears Ears Inter-Tribal Coalition, which includes five Southwest tribes, has been a powerful advocate for the protection of the Bears Ears National Monument
• Engaging in public education and outreach can help raise awareness about the significance of sacred sites and the importance of cultural preservation
  • For instance, the Pawnee Nation of Oklahoma has developed educational materials and tours to share the history and cultural significance of the Pawnee ancestral lands
• Utilizing international human rights frameworks, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), can provide additional tools for advocacy and help hold governments accountable for protecting sacred sites
• Exploring legal strategies, such as challenging development projects under the National Historic Preservation Act (NHPA) or the National Environmental Policy Act (NEPA), can help delay or prevent the destruction of sacred sites
  • For example, the Quechan Tribe successfully sued the Department of the Interior to halt the construction of a proposed solar energy project near a sacred site in California
• Developing co-management agreements and memoranda of understanding (MOUs) with federal agencies can give tribes a greater role in the management and protection of sacred sites on public lands
  • The Kasha-Katuwe Tent Rocks National Monument in New Mexico is co-managed by the Bureau of Land Management and the Pueblo de Cochiti, ensuring that the tribe's cultural and spiritual values are respected in the management of the site