Proposed Legislation in the United States

In July, 2002 sacred land protection legislation was introduced both at the federal level and in California. The Sacred Lands Protection Act (H.R. 5155), was introduced on July 18, 2002 by Congressman Nick Rahall (D, WV) and never moved out of committee, though S.B. 1828, The Native American Sacred Sites Protection Act, sponsored by California State Senator John Burton (D, San Francisco), was passed by both the state Assembly and Senate before being vetoed by Governor Gray Davis. Read an insightful critique of these two proposed pieces of legislation by cultural resources expert Thomas F. King, and California Gov. Davis’s rationale for vetoing S.B. 1828 on September 30, 2002.

On June 11, 2003 Rep. Nick Rahall (D, WV) re-introduced a revised Native American Sacred Lands Act (H.R. 2419). In contrast, Senator Ben Nighthorse Campbell (R, CO), Chairman of the Senate Indian Affairs Committee, has introduced the Indian Contracting and Federal Land Management Demonstration Project Act (S 288) and at a Senate hearing on June 18, Sen. Campbell invited the Sacred Land Protection Coalition to draft legislation for him to consider for introduction. Presumably, this draft legislation would meet the criteria endorsed in the December 2002 National Congress of American Indians’ resolution Essential Elements of Public Policy to Protect Native Sacred Places (SD-02-027).

Meanwhile, on June 26, 2003, California Governor Gray Davis’s staff released a “Traditional Tribal Cultural Sites” (TTCS) bill — a rewrite of the sacred site protection legislation Davis vetoed in 2002. The new TTCS bill evolved into S.B. 18, but in September it failed to gather enough votes to pass the state Assembly. S.B. 18 would have amended the law that established the state’s Native American Heritage Commission, and would have authorized the commission to bring legal action to prevent severe and irreparable damage to Native American cemeteries, places of worship, religious or ceremonial sites, or shrines located on public property. Also in Sacramento, the state Assembly in June passed an amendment to the California Coastal Act, A.B. 974, aimed at protecting sacred sites along the coast, but it too ultimately died in the face of strong opposition from developers and municipalities.

American Indian Religious Freedom Act

The American Indian Religious Freedom Act of 1978 (AIRFA) was originally intended to protect all forms of Native American spiritual practices, but the law failed to protect sacred sites in subsequent court tests. AIRFA was a policy statement that had no enforcement power, no “teeth.” In 1993, the Native American Free Exercise of Religion Act was introduced, which included provisions for sacred site protection; however, this was dropped and the section protecting the ceremonial use of peyote use was eventually passed as an amendment to AIRFA in 1994.

The four cases in which AIRFA failed were: 1) Sequoyah v. T.V.A. [620 F. 2d 1159 (1980)], a Cherokee effort to stop the Tennessee Valley Authority from flooding the Little Tennessee River above the Tellico Dam; 2) Badoni v. Higginson [638 F. 2d 172 (1980)], a Navajo effort to reduce the water level of Lake Powell and restrict tourists’ access to the Rainbow Bridge area in southern Utah; 3) Frank Fools Crow v. Gullet [706 F. 2d 856 (1983)], a Lakota effort to stop the state of South Dakota from expanding a parking lot in Bear Butte State Park in the Black Hills; and 4) Wilson v. Block [708 F. 2d 735 (1983)], a Hopi and Navajo attempt to preclude expansion of the Arizona Snow Bowl ski area in the San Francisco Peaks, near Flagstaff.

The GO Road Case

Lyng vs. Northwest Indian Cemetery Protective Association, known as the “GO Road” case, was a landmark 1988 Supreme Court ruling that has hindered all subsequent efforts to protect sacred sites. It was AIRFA’s final defeat. Though two lower courts had ruled that a Forest Service plan to build a logging road from Gasquet to Orleans in northern California (hence the name G-O Road), was a violation of Native American religious freedom because of its impact on an extensive sacred landscape, those rulings were overturned by the Reagan Court. Read the Supreme Court decision, including the late Justice William Brennan’s dissent.

National Historic Preservation Act (NHPA)

In the absence of statutory protections, native activists have been forced to use other laws, such as the National Historic Preservation Act, to protect sacred places. Read the original 1966 National Historic Preservation Act, along with amendments through 1992.

Section 106 of the Act deals specifically with traditional cultural properties, and requires federal agencies to consider the effect of their actions on any site that is eligible for inclusion in the National Register of Historic Places. National Register Bulletin 38 provides guidelines for using Section 106 to determine a site’s eligibility (and is recommended reading for those interested in understanding the complex issues surrounding protection of sacred land). Another good resource is the Advisory Council on Historic Preservation’s booklet on “Protecting Historic Properties: A Citizen’s Guide to Section 106 Review.”

Executive Order 13007

Former President Clinton’s 1996 Executive Order 13007 instructed every federal agency to evaluate their policies regarding Native American sacred sites. Land managers were ordered to: “(1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites” and to “maintain the confidentiality of sacred sites.”

The Department of the Interior released an extensive study on the implementation of Executive Order 13007. DOI’s Office of American Indian Trust also produced a manual entitled Departmental Responsibilities for Protecting/Accommodating Access to Indian Sacred Sites.

Two related Executive Orders in the last decade are: E.O. 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations” (signed in 1994), and E.O. 13175, “Consultation and Coordination With Indian Tribal Governments” (signed in 2000). When considered along with E.O. 13007, they provide strong directives to federal agencies in the absence of specific legislation to address sacred lands.

Native American Graves Protection and Repatriation Act

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) has played a key role in protecting the burial grounds and sacred objects of Native Americans. Federal agencies, and federally funded museums and educational institutions, are required to return human remains, funerary items, sacred objects, and objects of cultural patrimony to tribes or other indigenous groups who are descendents of those who created the objects. The physical locations where human remains are placed during a death rite or ceremony are also protected. Read Law, Regulations and Guidance for carrying out NAGPRA.

National Park Service Policy

The 2001 edition of the National Park Service’s management guidelines includes Chapter 5: Cultural Resource Management, which explains how the NPS manages land use, interacts with Native American communities, preserves cultural/historic objects or structures, and allows for ongoing use of sacred sites. The NPS, which is part of the Department of the Interior, has based these guidelines on the laws described above. The NPS Web site also has an excellent summary of laws and regulations relating to the protection of cultural and natural landscapes, with links to each text.

National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA) was a Congressional effort to ensure that federal agencies consider the effects of their proposed actions on the environment. This Act created the Council on Environmental Quality (CEQ), and was followed by other executive orders and implementation documents which elaborate on the specific conditions under which the Act should be used. NEPA was a landmark piece of legislation in that it requires rigorous assessment of both the ecological and cultural impacts of federal undertakings. NEPA specifies that the federal government must “preserve important historic, cultural, and natural aspects of our national heritage.”

The Devils Tower Case

The U.S. District Court’s 1998 decision concerning Devils Tower affirmed the National Park Service’s policy promoting a voluntary ban on climbing during the month of June, along with other activities to educate the public about Native Americans’ relationship to and uses of the Tower. Read the decision.

American Antiquities Act

The American Antiquities Act of 1906 required permits for archaeological digs on federal property, and established penalties for illegal excavation and vandalism of ancestral sites. The Antiquities Act proved ineffective and was found by the courts to be constitutionally vague so it was strengthened with passage of the Archaeological Resources Protection Act of 1979.

Conflicting Laws and Treaties

Some laws from the distant past undermined native land stewardship and may still conflict with sacred land protection. Three examples are:

• The Homestead Act of 1862, which offered 160 acres of free land in the West to settlers willing to move and live on the homestead. This law led to 270 million acres of land passing into private hands.
• The 1872 Mining Law, which transferred public land to miners — and does to this day. Read the Mineral Policy Center’s critique of the 1872 Mining Law, “The Last American Dinosaur.”
• The Dawes Severalty Act of 1887, also known as the Allotment Act, which dissolved collective landholding on 112 reservations and offered “surplus” lands to homesteaders. From 1887 to the 1930s, the Indian land base was reduced from 140 million acres to 50 million acres.

Adding to this complex mix are myriad treaties negotiated in the 19th Century between the U.S. Government and Native Americans. Treaties are agreements between sovereign nations. Read the texts of hundreds of treaties (you can search by tribe, state, year, Act of Congress, etc.). Article VI of the U.S. Constitution states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

United Nations’ Declarations and Conventions

On the international level, the United Nations has some guidelines that impact land-based religious practitioners around the world. The 1948 Universal Declaration on Human Rights declares that freedom of religion is a fundamental human right. Article 18 reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

In 1994, a draft Declaration on the Rights of Indigenous Peoples was proposed. It was a far-reaching document that required many years of hard work by indigenous leaders to be approved by U.N. member nations. Two particular articles in the original draft (which endured unchanged for over a decade) had direct relevance to the protection of sacred lands. Article 13 stated: “Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains. States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.” Article 25 stated: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.” On September 13, 2007, the United Nations General Assembly approved a revised Declaration on the Rights of Indigenous Peoples. (See our blog posting for comments on changes made to the final declaration that removed the words “sacred places.”)

At the April, 2004 meeting of the 12th United Nations Commission on Sustainable Development, indigenous representatives presented two statements regarding the sacredness of water and the importance of local management of traditional territories for a sustainable future. Tom Goldtooth, Executive Director of the Indigenous Environmental Network, told the Commission: “Communities must declare all water sources as sacred sites.” Read the Indigenous Peoples’ Caucus Statements as presented to the U.N. Commission in New York.

Considering sacred lands from an international perspective, and in a human rights context, is instructive because it shifts the focus from the U.S. Constitution and the American legal system to a wider frame of reference.

Also significant is the United Nations’ Convention on Biological Diversity which has an important clause in Article 8 (j) requiring countries that sign the convention to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.” The United States has not signed the convention.

A New International Movement to Protect Sacred Natural Sites (2005)

Beginning in 2003, an important, new international movement for the protection of sacred places began building momentum. At the Vth World Parks Congress in South Africa in September 2003, delegates produced the Durban Recommendations on the Cultural and Spiritual Values of Protected Areas (download the pdf file and then see V.13 on pages 168-170), which called for the recognition of the spiritual values of protected areas around the world, and the full inclusion of indigenous communities and spiritual leaders in the management of sacred natural sites.

Then, from May 30 to June 2, 2005, a major symposium convened in Tokyo, Japan — “Conserving Cultural and Biological Diversity: The Role of Sacred Natural Sites and Cultural Landscapes.” This meeting brought together 200 people from every continent to document and discuss how sacred natural sites — and the local communities that care for them — nurture and protect biodiversity. U.N. experts from the U.N. Educational, Scientific and Cultural Organization (UNESCO), the Convention on Biodiversity (CBD), the U.N. Permanent Forum on Indigenous Issues (PFII) and the Food and Agriculture Organization (FAO), along with The World Conservation Union (IUCN), met with numerous indigenous people, protected area managers, scientists and academics. The discussions were aimed at protecting sacred places, and surrounding ecosystems, through existing international instruments, new laws and improved land management policies.

A number of important documents have emerged as this historic cultural preservation movement continues to grow. Symposium participants in Japan drafted and approved the Tokyo Declaration, which urges the development and implementation of UNESCO and IUCN’s Draft Guidelines for the Conservation and Management of Sacred Natural Sites, and the dissemination of CBD’s Akwé: Kon voluntary guidelines for the conduct of cultural, environmental and social impact assessment regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities. (Note: Akwé: Kon is pronounced agway-goo, and is a Mohawk term meaning “everything in creation.”) The Akwé: Kon guidelines are available in English, French and Spanish.

Also relevant are:

• The Playa del Carmen Declaration on Indigenous Spirituality, Nature and Sacred Sites (April 2005):
• UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage (October 2003);
• The Yamato Declaration on an Integrated Approach to Safeguarding Tangible and Intangible Cultural Heritage (October 2004); and
• The Ramsar Convention on Wetlands (February 1971).

IUCN Sacred Natural Sites Guidelines and Motion 53

From 2006-2008, with colleague Rob Wild, Project Director Christopher McLeod edited and wrote guidelines for the management of sacred natural sites in protected areas around the world. In 2008, IUCN and UNESCO published Best Practices Volume 16, Sacred Natural Sites – Guidelines for Protected Area Managers, and launched the publication at the World Conservation Congress in Barcelona, Spain. IUCN members also passed Motion 53, “Recognition and conservation of sacred natural sites in protected areas.” As a result, sacred site management is now an accepted category of conservation practice with internationally recognized guidelines, principles and policies, all supported by more than a dozen case studies. The guidelines are now being field tested in protected areas around the world. The book is a milestone achievement that affirms that sacred places are the oldest protected areas on the planet.

For Comparison: A Law in Australia Intended to Protect Sacred Lands

For perhaps the one law in the world that explicitly protects indigenous peoples’ sacred lands, consider Australia’s Northern Territory Aboriginal Sacred Sites Act. The Northern Land Council and the Central Land Council are Aboriginal-controlled organizations that monitor this legislation and the use of and activities on Aboriginal lands.The Central Land Council report “Our Land, Our Life” provides details about how the Land Councils operate and explains current difficulties with land rights and sacred site protection in Australia. The report states that the 1989 act “is not strong enough as Aboriginal people say it provides miners with the ’legal’ means to destroy sites.”