Tools for Action
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 G-O Road Case
Lyng vs. Northwest Indian Cemetery Protective Association, known as the “G-O 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, and our full sacred site report.
National Historic Preservation Act
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 Bill 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. The department’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 descendants 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 park service manages land use, interacts with Native American communities, preserves cultural/historic objects or structures, and allows for ongoing use of sacred sites. The park service, which is part of the Department of the Interior, has based these guidelines on the laws described above. Its website 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 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 because it requires rigorous assessment of both the ecological and cultural impacts of federal undertakings, specifying that the federal government must “preserve important historic, cultural, and natural aspects of our national heritage.”
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 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 (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.”
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 Rep. Nick Rahall (D-W.V.) and never moved out of committee, although The Native American Sacred Sites Protection Act (S.B. 1828), sponsored by California State Sen. John Burton (D-San Francisco), was passed by both the state Assembly and Senate before being vetoed by Gov. Gray Davis. Read an insightful critique of these two proposed pieces of legislation by cultural resources expert Thomas F. King, and Davis’s rationale for vetoing S.B. 1828.
In June 2003 Rep. Nick Rahall (D-W.V.) reintroduced a revised Native American Sacred Lands Act (H.R. 2419), but the bill never became law. In contrast, Sen. Ben Nighthorse Campbell (R-Colo.), chairman of the Senate Indian Affairs Committee, introduced the Indian Contracting and Federal Land Management Demonstration Project Act (S. 288) and at a Senate hearing on June 18, 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 Gov. 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 it failed to gather enough votes to pass the state Assembly. The bill 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 June, the California Assembly passed an amendment to the California Coastal Act, A.B. 974, aimed at protecting sacred sites along the coast, but it too died in the face of strong opposition from developers and municipalities.