Transcript What are Cultural Resources? - ailc

PROTECTING THE TRIBAL SACRED:
CONSULTATION UNDER THE FEDERAL CULTURAL
PROPERTY LAWS
Jeanette Wolfley
Assistant 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 context
 Includes sacred sites where ceremonies were
conducted, spiritual renewals , locations for gathering
of medicinal plants and minerals or for use in
ceremonies
 Located on and off-reservation in tribal aboriginal
territories
How are cultural resources tied to tribal
cultures and impacted?










Origin or creation stories
Sacred landscapes
Stories of plants, animals, birds
Songs
Prayers
Ceremonies and practices
Languages
Gatherers
Spiritual, medicine person, societies, families
Community, society
National Historic Preservation Act
 Enacted 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 Process
 Section 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
properties
Agency must seek the Advisory Council’s comments on
project
NHPA
 NHPA is a procedural, not a substantive statute
 The 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 SHPOs
 Tribes have a right to be consulted regardless of where
the federal undertaking is located, even outside the
reservation boundaries
Step 1: Federal Undertaking
 The 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 construction
Building demolition
Construction of fences and livestock watering facilities
Most ground disturbing activities under jurisdiction of federal
agencies
 Indirect undertaking by federal agency –
 Federal financial assistance grants for housing,
transportation
 Indirect assistance like block grants for community
development or law enforcement
Federal approvals, permits or licenses for non-federal
activities are undertakings –
Approval of mining activities
Authorizations for activities or use of public lands under
the jurisdiction of Forest Service or BLM
 Permits include –
 Grants of rights-of-way across public lands
On 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 project
 The 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
Properties
 If 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 information
Seeking information from appropriate consulting
parties
Tribal consultation
Tribal engagement with federal agency is imperative at
this point educate and identify the TCPs
 Confidentiality of information is a critical factor for
many tribes
 Confidentiality 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 tribes
indicated the existence of traditional cultural
properties and because the Forest Service
should have known that tribal customs might
restrict the ready disclosure of specific information,
we hold that the agency did not reasonable pursue
the information necessary to evaluate the canyon’s
eligibility for inclusion in the National Register.”
Step 3: Assess Adverse Effects of
the Undertaking
 If 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 property
 When 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
Undertaking
 If 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 agency’s 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 Act
 Enacted in 1990
 NAGPRA has two main features –
 1.
Repatriation of collections in the possession of
federal agencies and institutions receiving federal
funds, and
 2. 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 Act
 Enacted in 1969
 With 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
agency’s 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
agencies
 Adoption of official policy, such as rules, regulations
 Adoption of formal plans which guide or prescribe
alternative uses of federal resources
 Approval of specific projects or permits
 Like 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), aff’d 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 tribe’s cultural
concerns, and held that the agency had acted
reasonably in drafting the EIS
Archeological Resources Protection
Act
 Enacted in 1979
 Purpose 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.
 ARPA’s enforcement provisions render injury or
disturbance of archeological remains on public lands
 and 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 Laws
 In addition to federal protections, many tribes and
states have enacted laws protecting cultural resources
 Cultural 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