Cultural Resource

Preservation Law:

The Enhanced Focus

on American Indians

## [Ms. Lauryne Wright\*]{.smallcaps}

## 

## To us the ashes of our ancestors are sacred and their resting place is hallowed ground. Our religion is the tradition of our ancestors\--the dreams of our old men, given them in the solemn hours of night by the Great Spirit; and the visions of our sachems; and is written in the hearts of our people.

> *Seathl, Duwamish chief*[^1]

# **I. INTRODUCTION**

In 1831 the United States Supreme Court first characterized the
relationship of Indian tribes to the United States as being like that of
a ward to a guardian, making the federal government a trustee.[^2]
Today, the concept of "trust" with respect to American Indians is more
aptly defined as a responsibility of federal agencies to foster trust
among Indian tribes through a government-to-government relationship that
reflects respect for their sovereign status.

That evolution in the concept of trust has occurred over the past 30
years, as cultural resource preservation laws have gradually adopted an
enhanced focus on American Indians, or Native Americans.[^3] These laws
have progressed from fostering scientific information gathering through
protection of archaeological research and preservation of ancient
cultures to recognition of American Indian cultural rights.

American Indian cultural rights protected today include control over the
disposition of human remains of lineal descendants, the return or
repatriation of objects of cultural patrimony,[^4] religious freedom and
the practice of sacred rituals, access to sacred sites on federal
property, and consultation with federal agencies regarding preservation
and protection of cultural resources.[^5] Additionally, the concept of
American Indian tribes as sovereign nations is formally recognized
through executive orders and official policy requiring that the
Department of Defense (DoD) and its military services conduct affairs
with American Indian tribes on a government-to-government basis.

# **II. FROM THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT (ARPA) TO THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)**

> My people, before the white man came you were happy. You had many
> buffalo to eat and tall grass for your ponies---you could come and go
> like the wind. When it grew cold you could journey to the valleys of
> the south, where healing springs are; and when it grew warm, you could
> return to the mountains of the north. The white man. . . dug up the
> bones of our mother, the Earth. He tore her bosom with steel. He built
> big trails and put iron horses on them.

Wovoka, Paiute[^6]

### The Archaeological Resources Protection Act

*1. Predecessor Provisions*

In the nineteenth century, American Indian personal property, including
remains of their deceased, was routinely collected by the federal
government, ending up in federal collections, public museums such as the
Smithsonian Institution, and even personal collections. In the twentieth
century, passage of the Antiquities Act of 1906[^7] set up a permitting
requirement (enforceable through criminal sanction) for excavation on
federal lands. This was to enable the government to control the data
recovery of archaeologists. The Act protected any historic or
prehistoric ruin or monument, or any object of antiquity situated on
land owned or controlled by the federal government, to include American
Indian lands. Although the Act protected antiquities, it did not protect
cultural rights. It neither recognized tribal laws nor tribal
jurisdiction over Indian lands.[^8]

In 1974, the Ninth Circuit Court of Appeals declared the Antiquities Act
unconstitutionally vague for failing to define the term "object of
antiquity."[^9] Overall, the Antiquities Act is still used for the
regulatory purpose of declaring national monument land,[^10] but the
Archaeological Resources Protection Act has essentially superceded its
permitting and prosecution sections.

*2. Passage of the Archaeological Resources Protection Act*

In 1979, passage of the Archaeological Resources Protection Act
(ARPA)[^11] strengthened federal control over "archaeological resources
found on non-Indian federal lands.[^12] Like the Antiquities Act before
it, ARPA prohibits unauthorized excavation, requiring private persons to
obtain permits to excavate on federal lands.[^13] Additionally, Indian
tribes[^14] must be notified 30 days prior to issuance of a permit if
excavation may result in harm to a tribal, religious, or cultural
site.[^15] Indian tribes are not required to obtain ARPA permits to
remove resources from their own reservations, and a tribe may issue
permits to its own members.[^16] Archaeological resources on Indian
lands belong to Indian tribes.[^17]

ARPA was devised by scientists to preserve and protect archaeological
sites, to include American Indian sites. No American Indians, however,
were involved in its drafting. In addition to prohibiting actual or
attempted excavation, removal, alteration, damage or defacement of
archaeological resources without a permit, ARPA provides for
criminal[^18] and civil penalties for selling, purchasing, exchanging,
transporting, receiving, or offering to sell, purchase, or exchange, in
interstate or foreign commerce, any archaeological resource excavated or
removed from federal or Indian land.[^19] Moreover, ARPA requires the
federal government to keep the location of archaeological sites
confidential if disclosure would create a risk of harm to the site.[^20]
Therefore, information regarding the location of ARPA sites on federal
land is not subject to Freedom of Information Act requests.[^21] Tribal
notification is not considered to be a public disclosure.

Military installations encompassing archaeological sites must strive to
balance the right of public access with preservation and protection
responsibilities, including Indian tribe requests for non-disclosure of
site locations for religious or cultural reasons.[^22]

###  {#section-1 .unnumbered}

### B. The Native American Graves Protection and Repatriation Act {#b.-the-native-american-graves-protection-and-repatriation-act .unnumbered}

It was not until 1990, with passage of the Native American Graves
Protection and Repatriation Act (NAGPRA),[^23] that the American Indian
community was united with the scientific community in balancing science
with cultural rights. Congressman Morris Udall said it was the greatest
piece of legislation he had ever been associated with, advancing a civil
rights standard that hadn't been seen since the mid-1960s.[^24]

NAGPRA acknowledges a government-to-government relationship between the
United States and Indian tribes.[^25] It requires all federal agencies,
with the exception of the Smithsonian Institution,[^26] to consult with
lineal descendants, Indian tribes,[^27] and Native Hawaiian[^28]
organizations prior to intentional excavations and immediately following
inadvertent discoveries of cultural items on federal or tribal
lands.[^29] It also requires federal agencies and museums that receive
federal funds to inventory and, if requested, to repatriate[^30] Native
American cultural items to lineal descendants or culturally affiliated
Indian tribes and Native Hawaiian organizations.[^31] Cultural items
under NAGPRA include human remains, associated and unassociated funerary
objects, sacred objects, and objects of cultural patrimony.[^32]

*1. Consultation Requirement*

With respect to planned excavations on federal lands, NAGPRA requires
federal land managers to engage in prior consultation with potentially
affected lineal descendants, Indian tribes, and Native Hawaiian
organizations.[^33] Consultation, in addition to immediate notification,
must also take place with appropriate Indian tribes upon inadvertent
discovery of cultural items on federal lands.[^34]

Federal agency responsibility with respect to inadvertent discoveries
includes an initial cessation of activity for 30 days, reasonable
efforts to protect the discovered items, and immediate oral notification
to culturally affiliated Indian tribes, followed by written
confirmation.[^35] It is at this point that consultation with Indian
tribes takes place.

The purpose of such consultation is to positively identify and confirm
that what has been discovered is in fact a cultural item subject to
disposition under NAGPRA. Once such confirmation is achieved, Indian
tribes direct how, within the parameters of NAGPRA, the items are to be
protected or repatriated. Upon certification from an appropriate
authority[^36] that tribal notification has been accomplished, the
federal activity leading to the inadvertent discovery may be resumed,
and disposition of cultural items will be carried out pursuant to NAGPRA
repatriation procedures.[^37] Federal agencies cannot delegate these
responsibilities under NAGPRA, except to the Secretary of the Interior
upon his/her consent.[^38]

NAGPRA expressly provides that, "\[t\]his Act reflects the unique
relationship between the Federal Government and Indian tribes and Native
Hawaiian organizations and should not be construed to establish a
precedent with respect to any other individual, organization or foreign
government."[^39] The notion, however, that NAGPRA has established a
trust or fiduciary relationship between the government and American
Indians has been rejected. The U.S. District Court for the District of
Hawaii has held the preceding statutory language to be a "disclaimer
intended to ward off tangential repatriation claims from groups other
than Native Americans or Native Hawaiians rather than as establishing a
fiduciary obligation on the federal government."[^40]

*a. NAGPRA Jurisdictional Area---Federal or Indian Lands*

As indicated above, NAGPRA's reach is limited to cultural items found on
federal or Indian land. In *Romero v. Becken,*[^41] for example, human
remains were inadvertently found during construction of a golf course in
Universal City, Texas. The plaintiff claimed to be a lineal descendant
of the Lipan Apache[^42] chief Cuelgas de Castro. Ultimately, the Court
held that the remains were found on municipal land.[^43]

Universal City had acquired the land through gifts of private landowners
and, pursuant to the Clean Water Act, was required to conduct an
archaeological survey of the project site prior to building the golf
course. Consequently, the Army Corps of Engineers (Army Corps) began
oversight of the project.[^44] The Court held that, "The fact that the
U.S. Army Corps of Engineers, a federal agency, was involved in a
supervisory role with the Texas Antiquities Commission does not convert
the land into 'federal land' within the meaning of the statute."[^45]

*b. Distinguishing 30-day Cessation Period from Period for Reasonable
Protection Efforts*

Although NAGPRA requires a 30-day cessation of activity upon the
inadvertent discovery of cultural items on federal or Indian lands,
efforts at protecting the items may be required to extend beyond the
30-day period. In *Yankton Sioux Tribe v. United States Army Corps of
Engineers,*[^46] the plaintiff tribe alleged the Army Corps failed to
satisfy its duty to secure and protect inadvertently discovered human
remains embedded in frozen lakeshore soil. The Army Corps filed a motion
to dismiss, arguing that it had satisfied NAGPRA's notification, tribal
certification, and 30-day cessation of activity requirements, and that
it took reasonable efforts to protect the accessible remains by removing
those that were "loose and scattered" before resuming activity.[^47]
Further, the Army Corps asserted the Court lacked authority to address
long-term protection of remains that might be exposed in the
future.[^48]

The Court denied the Army Corps' motion to dismiss, finding that neither
NAGPRA nor its implementing regulations[^49] relieved the Army Corps of
its duty to secure and protect inadvertently discovered human remains
upon the lapse of the 30-day cessation-of-activity period.[^50] The
Court determined that NAGPRA regulations do not specify a time period
within which a federal agency is relieved of the duty to secure and
protect inadvertently discovered human remains.[^51] The Yankton Sioux
Tribe went on to obtain an injunction against the Army Corps, requiring
it to cease all construction in that area, and prohibiting it from
denying tribal member access to the area.[^52]

*2. Inventory Requirement*

Basically, NAGPRA tells federal agencies that as of November 16, 1990,
if they have collections of certain American Indian items, they must
catalog or inventory those items to determine and disclose what is in
their possession.[^53] A summary of a federal agency's collection is to
be provided to lineal descendants, Indian tribes, or Native Hawaiian
organizations, as may be applicable.[^54]

Although NAGPRA requires efforts to identify the cultural affiliation of
cultural items, by express provision of the statute, requests for
additional documentation relating to affiliation are not to be construed
as authorization for new scientific studies of the items.[^55]
Clarification of the statutory parameters on permissible scientific
analysis and who may be qualified to determine cultural affiliation have
been provided by two NAGPRA lawsuits involving human remains recovered
from land controlled by the Department of the Navy on the island of
Oahu, Hawaii.

*a. Na Iwi O Na Kapuna O Makapu v. Dalton*

In *Na Iwi O Na Kapuna O Makapu v. Dalton*,[^56] a Native Hawaiian
organization objected to a physical anthropologist's examination of a
cranium[^57] to determine cultural affiliation. In this, the first DoD
project to fall under NAGPRA, the Navy awarded the Bishop Museum a
contract to inventory human remains disinterred from the Mokapu
Peninsula. The general objective was to accurately list human remains
and funerary objects and to determine the number of individuals
represented.[^58]

In conducting its inventory, the Bishop Museum did not perform DNA
analysis or generally conduct extensive metric or nonmetric analyses of
the remains. Its use of standard physical anthropological methods to
determine the various ages and sexes represented and, thereby, the
number of individuals present was upheld:

> Examinations done for the purpose of accurately identifying cultural
> affiliation or ethnicity are permissible because they further the
> overall purpose of NAGPRA, proper repatriation of remains and other
> cultural items.\[[^59]\]
>
> \* \* \*
>
> NAGPRA Section 3003(b)(2) merely prevents federal agencies and museums
> from conducting additional research after completion of the initial
> inventory. Section 3003(b)(2) is wholly inapposite to examinations
> conducted at the inventory compilation stage. The section\'s
> restrictive language only applies upon request by an Indian tribe or
> Native Hawaiian organization which receives or should have received
> notice \[of the completed inventory, . . . for\] additional available
> documentation to supplement the \[inventory\] information required by
> subsection (a) of \[Section 3003\].\" 25 U.S.C. Section 3003(b)(2)
> (emphasis provided). Because the Federal Defendant did not conduct its
> examination in response to a request for information, Section
> 3003(b)(2) is of no consequence.
>
> . . . Section 3003(b)(2)\'s restrictive language \[is included\] to
> prevent agencies and museums from using a request for additional
> documentation as an excuse to initiate new studies and further delay
> the repatriation process.\[[^60]\]

*b. Monet v. Hawaii*

The second lawsuit involved a claim of lineal descendency over the same
Mokapu remains. In *Monet v. Hawaii*, [^61] the plaintiff, unlike the Na
Iwi O Na Kapuna O Mokapu, proposed to establish his lineal descendency
through DNA studies. Monet alleged the Marine Corps lacked authority to
determine the appropriate recipient of cultural items due to lack of
expertise. The Court dismissed Monet's complaint, finding the Marine
Corps to be a federal agency with authority to determine cultural
affiliation of cultural items under NAGPRA, rendering its expertise
irrelevant. Additionally, because the Marine Corps had not completed its
inventory at the time the complaint was filed, the Court found the issue
of repatriation not ripe for decision. The Ninth Circuit affirmed this
decision.[^62]

*3. Repatriation Claims*

Priority for repatriation claims of cultural items goes to lineal
descendants of the individual whose body, funerary and/or sacred objects
are being claimed.[^63] Notably, lineal descendants, unlike Indian
tribes, do not have to be federally recognized by the Bureau of Indian
Affairs (BIA).[^64] If lineal descendency cannot be ascertained, those
claiming a cultural affiliation gain priority. Cultural affiliation
involves a traceable group relationship to present-day federally
recognized Indian tribes or Native Hawaiian organizations.[^65]

More than one tribe may claim affiliation.[^66] The NAGPRA Review
Committee settles such disputes, as well as issues involving unclaimed
property.[^67] In the absence of lineal descendants or groups claiming
cultural affiliation, repatriation efforts focus on federally recognized
Indian tribes.

#### 

#### Repatriation and the Kennewick Man

The most highly publicized NAGPRA repatriation case to date involves
human remains dubbed "the Kennewick Man," determined to be 9,000 years
old. The remains were discovered at an Army Corps work site along the
Columbia River near Kennewick, Washington, which is federal, aboriginal
Indian land.[^68]

As described in *Bonnichsen v. United States,*[^69] the Army Corps,
after completely covering the discovery site under tons of dirt topped
with plants,[^70] decided to grant custody of the Kennewick Man to a
coalition of Indian tribes based on the age of the remains and their
discovery within the United States.[^71] Plaintiff scientists and
religious groups challenged the Army Corps' decision, attempting to halt
transfer of the remains to Indian tribes under NAGPRA by claiming the
remains were not descended of an American Indian and seeking an
opportunity to study them.

The Army Corps denied plaintiffs' request to study the remains, despite
the Army Corps' representation that it buried the site to preserve its
archaeological value for further study.[^72] Local Indian tribes opposed
scientific study of the remains on religious grounds.[^73]

Ultimately, the Court agreed with plaintiffs. In the final outcome, the
Court set aside the decision awarding the remains to the tribal
coalition, enjoined transfer of the remains to the tribes, and required
that archaeologists be allowed to study the remains. With respect to
NAGPRA, the Court said, "The term 'Native American' requires, at a
minimum, a cultural relationship between remains or other cultural items
and a present-day tribe, people, or culture indigenous to the United
States...The evidence in the record would not support a finding that
Kennewick Man is related to any particular identifiable group or
culture, and the group or culture to which he belonged may have died out
thousands of years ago."[^74] The Court noted that, "Congress did not
create a presumption that items of a particular age are 'Native
American.'" [^75]

**III. The National Historic Preservation Act**

> *What we are told as children is that people when they walk on the
> land leave their breath wherever they go. So wherever we walk, that
> particular spot on the earth never forgets us, and when we go back to
> these places,*
>
> *we know that the people who have lived there are in some way still
> there, and that we can actually partake of their breath and of their
> spirit.*
>
> *Rina Swentzell, Santa Clara Pueblo*[^76]

### A. The National Historic Preservation Act of 1966 {#a.-the-national-historic-preservation-act-of-1966 .unnumbered}

The National Historic Preservation Act of 1966 (NHPA)[^77] established a
program for preserving historic properties throughout the nation.[^78]
Section 106 of the NHPA requires federal agencies to take into account
the effect of their undertakings on any district, site, building,
structure, or object that is included in or eligible for inclusion in
the National Register.[^79] Additionally, federal agencies must afford
the Advisory Council on Historic Preservation (ACHP) a reasonable
opportunity to comment on such undertakings[^80]

*1. The NHPA Section 106 Process*

Generally known as the "Section 106 process," the "reasonable
opportunity to comment" portion of NHPA Section 106 is accomplished
through consultation of the federal agency with other interested
parties.[^81] Participants in the process include an agency official,
the ACHP,[^82] and consulting parties.[^83] Consulting parties include
the State Historic Preservation Officer (SHPO); Indian tribes[^84] and
Native Hawaiian organizations;[^85] representatives of local governments
with jurisdiction over the area of effect; applicants for federal
assistance, permits, licenses, and other approvals; and any additional
consulting parties, including the public.[^86]

The agency official has approval authority for the undertaking and can
commit the federal agency to take appropriate action for a specific
undertaking as a result of Section 106 compliance.[^87] A key player in
the Section 106 process is the SHPO, representing the interests of a
state and its citizens.[^88] A SHPO is designated in each state by the
Governor or chief executive or by state statute to administer the State
Historic Preservation Program.[^89] With respect to the Section 106
process, the SHPO advises federal agencies and assists them in carrying
out their NHPA Section 106 responsibilities.[^90]

In *Attakai v. United States*, [^91] a 1990 NHPA case presaging future
action by Congress, the U.S. District Court for the District of Arizona
ruled on claims brought by members of the Navajo tribe. Navajo
plaintiffs sought to enjoin the Department of the Interior and the
Bureau of Indian Affairs (BIA) from constructing fences and livestock
watering facilities on land apportioned to a neighboring Hopi tribe by
the Navajo-Hopi Land Settlement Act. The plaintiffs' principal claim was
that defendants did not engage in consultation with the SHPO in
determining the existence of historic properties as required by NHPA
regulations.[^92] Plaintiffs also contended that the defendants were
required to consult with them or the entire Navajo tribe as part of the
Section 106 process.[^93]

Upholding plaintiffs' claims,[^94] the *Attakai* Court noted that NHPA
regulations "clearly require that an Indian tribe participate as a
consulting party and that it must concur in any agreement regarding
undertakings which affect its lands."[^95] However, because the
undertakings were to take place on the Hopi Reservation, the Court found
that it was the Hopi tribe that must concur in any agreement, as opposed
to the Navajo tribe.[^96] Nevertheless, the Court determined that NHPA
regulations required the Navajo tribe to be afforded an opportunity to
participate in the Section 106 consultation as they "clearly contemplate
participation by Indian tribes regarding properties beyond their own
reservations," regardless of whether they are non-Indian lands.[^97]

*2. NHPA Section 110*

Section 110 of the NHPA requires federal agencies to assume
responsibility for preservation of historic properties they own or
control and to establish a program ensuring that historic properties
under their jurisdiction and control are identified, evaluated and
nominated to the National Register.[^98] A secondary claim in the above
*Attakai* case involved federal agency responsibilities under NHPA
Section 110, wherein plaintiffs contended that defendants failed to
establish a program to inventory historical sites on the Hopi
Partitioned Lands.

In rejecting this claim, the United States District Court for the
District of Arizona stated, "There is nothing in section 110 of the Act
which suggests that Congress intended to impose the obligations of that
section on federal agencies with regard to Indian lands...Congress
provided for federal responsibilities with regard to protection of
historic resources on Indian lands in section 106 on a project specific
basis."[^99] Therefore, per this District Court, a federal agency does
not have NHPA Section 110 responsibilities on Indian lands.

### B. The National Historic Preservation Act Amendments of 1992 {#b.-the-national-historic-preservation-act-amendments-of-1992 .unnumbered}

*1. Tribal Historic Preservation Officers and the Section 106 Process*

The 1992 NHPA amendments emphasized and strengthened the role of
American Indians and Indian tribes. As interpreted by the ACHP, the 1992
revisions:

> ...embody the principle that Indian tribes should have the same extent
> of involvement when actions occur on tribal lands as the SHPO does for
> actions within the State; this includes the ability to agree to
> decisions regarding significance of historic properties, effects to
> them and treatment of those effects, including signing Memoranda of
> Agreement.[^100]

Accordingly, the ACHP's revised regulations[^101] now contain specific
provisions for involving Indian tribes when actions occur on tribal
lands,[^102] with enhanced consultation with Indian tribes and Native
Hawaiian organizations throughout the Section 106 process. Pointedly, an
express provision is now made for "Tribal historic preservation
officer\[s\]" (THPOs).[^103] The revised NHPA regulations provide that:

> For a tribe that has assumed the responsibilities of the SHPO for
> section 106 on tribal lands...the tribal historic preservation officer
> (THPO) appointed or designated in accordance with the act is the
> official representative for the purposes of section 106. The agency
> official shall consult with the THPO in lieu of the SHPO regarding
> undertakings occurring on or affecting historic properties on tribal
> lands.[^104]

For tribes that have not assumed SHPO functions, federal agencies are
required to consult with a representative designated by the Indian
tribe, in addition to the SHPO, regarding undertakings occurring on or
affecting historic properties on its tribal lands.[^105] These Indian
tribes have the same rights of consultation and concurrence that THPOs
are afforded; yet the SHPO remains a consulting party in the Section 106
process. For federal undertakings occurring on non-tribal lands to which
any Indian tribe or Native Hawaiian organization attaches religious or
cultural significance to potentially affected properties, federal
agencies must still consult with the Indian tribe or Native Hawaiian
organization.[^106]

The NHPA amendments of 1992 not only adopted new terminology, but also
provided greater deference to federal agency and SHPO decisionmaking in
the section 106 process. This, in turn, provided greater deference to
THPOs. Essentially, the ACHP no longer reviews routine decisions agreed
to by a federal agency and a SHPO/THPO. Such decisions include adverse
effect findings and most Memoranda of Agreement. Thus, the ACHP has
"recogniz\[ed\] that their capability to do effective preservation
planning has grown substantially since 1986."[^107]

*2. Recognizing Government-to-Government Relationships*

The NHPA 1992 amendments incorporated language that succinctly
acknowledges the sovereign status of Indian tribes with respect to
Section 106 consultation. This point of cultural sensitivity is
addressed not once, but twice, in NHPA regulations:

-   Consultation with an Indian tribe must recognize the
    government-to-government relationship between the Federal government
    and Indian tribes...and should be conducted in a manner sensitive to
    the concerns and needs of the Indian tribe or Native Hawaiian
    organization.[^108]

```{=html}
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```
-   Consultation with Indian tribes should be conducted in a sensitive
    manner respectful of tribal sovereignty.[^109]

# 

# **IV. The American Indian Religious Freedom Act and complementary religious protections**

> We will dance when our laws command us to dance, we will feast when
> our hearts desire to feast. . . It is a strict law that bids us to
> dance. It is a strict law that bids us distribute our property among
> our friends and neighbors. It is a good law. And now, if you are come
> to forbid us to dance, begone.

#####  Anon., Kwakiutl, 1886

> *(Protesting anti-potlatch law)*[^110]

There is not any one American Indian religion, yet most if not all seem
to include stewardship of land and natural resources.[^111] For American
Indians, natural resources can have a religious significance, such as
sacred sites or native plants used in ceremonies.[^112]

The U.S. Constitution's First Amendment precludes Congress from enacting
legislation prohibiting the free exercise of religion.[^113] To ensure
American Indians received protections equivalent to those of the First
Amendment Free Exercise clause, Congress passed AIRFA, which, in its
entirety, states:

> On and after August 11, 1978, it shall be the policy of the United
> States to protect and preserve for American Indians their inherent
> right of freedom to believe, express, and exercise the traditional
> religions of the American Indian, Eskimo, Aleut, and Native Hawaiians,
> including but not limited to access to sites, use and possession of
> sacred objects, and the freedom to worship through ceremonials and
> traditional rites.[^114]

AIRFA represents the first cultural resource preservation law enacted
specifically for American Indians, as opposed to the NHPA or ARPA.

### A. AIRFA Protections Do Not Extend Beyond Those of the First Amendment's Free Exercise Clause {#a.-airfa-protections-do-not-extend-beyond-those-of-the-first-amendments-free-exercise-clause .unnumbered}

The Free Exercise Clause of the First Amendment has traditionally been
held to prevent the Government from 1) imposing coercive action or
requirements against the practice of one's religion and/or 2) penalizing
one's access to public benefits or rights because of religious beliefs
or practices.[^115] American Indians have sought rights beyond these two
protections, using AIRFA as a legal cause of action to preclude
government development of natural areas on the grounds that these areas
constitute sacred sites.

For example, in addition to the NHPA claim in the aforementioned
*Attakai* case, Navajo plaintiffs also claimed that BIA installation of
fencing and construction of livestock watering stations on Hopi
Partitioned Land would interfere with the practice of their religion,
therefore constituting a violation of AIRFA.[^116] Plaintiffs explained
that in their traditional Navajo or "Dineh" religion, sacredness was
attached to places believed to be portals to spiritual beings to which
individuals must have access in order to conduct rituals and to fulfill
obligations to care for the land entrusted to them by the
creators.[^117] The *Attakai* Court disagreed, however, that the alleged
destruction or desecration of these sites through fencing and
construction projects prevented the Navajos from fulfilling their
caretaking responsibilities or interfered with rituals so as to prevent
the practice of their religion.[^118]

Looking to AIRFA's legislative history, the Court stated that it "was
meant to ensure that American Indians were given the protection
guaranteed under the First Amendment to all persons, not to grant them
rights in excess of those guarantees."[^119] In finding plaintiffs to
have no legally cognizable claim under AIRFA, the *Attakai* Court cited
the following quote from U.S. Supreme Court precedent: "Nowhere in the
law is there so much as a hint of any intent to create a cause of action
or any judicially enforceable individual rights."[^120] However, the
Court went on to opine that "nothing in our opinion should be read to
encourage governmental insensitivity to religious needs of any citizen.
The Government's right to use its own land, for example, need not and
should not discourage it from accommodating religious practices like
those engaged in by the Indian respondents."[^121]

###  {#section-4 .unnumbered}

### B. Sacred Sites: Access, Confidentiality, and Notice of Impacting Actions  {#b.-sacred-sites-access-confidentiality-and-notice-of-impacting-actions .unnumbered}

*1. Access to and Confidentiality of Their Locations*

AIRFA also affirmed the right of American Indians to have access to
their sacred places. In 1996, President Clinton signed Executive Order
(E.O.) 13007, Indian Sacred Sites,[^122] providing that, in managing
federal lands, federal agencies, to the extent practicable, permitted by
law and "not clearly inconsistent with essential agency functions,"
shall (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.

What is or is not a "sacred site" is determined only by American
Indians, not subject to interpretation by federal agency
representatives, except in confirming that it is pursuant to an
established religion espoused by an appropriately authoritative
representative of an Indian religion.[^123] This is pursuant to E.O.
13007's definition of a "sacred site" as\--

> any specific, discrete, narrowly delineated location on Federal land
> that is identified by an Indian tribe, or Indian individual determined
> to be an appropriately authoritative representative of an Indian
> religion, as sacred by virtue of its established religious
> significance to, or ceremonial use by, an Indian religion; provided
> that the tribe or appropriately authoritative representative of an
> Indian religion has informed the agency of the existence of such a
> site.[^124]

Where appropriate, E.O. 13007 requires agencies to maintain the
confidentiality of sacred sites.[^125]

*2. Notice of Action or Policy Impacting Sacred Sites*

E.O. 13007 ensures reasonable notice to Indian tribes, where practicable
and appropriate, of proposed actions or land management policies that
may restrict future access[^126] to or ceremonial use of, or adversely
affect the physical integrity of, sacred sites.[^127] All actions
pursuant to E.O. 13007, to include tribal notice, must comply with the
Executive Memorandum of April 29, 1994, "Government-to-Government
Relations with Native American Tribal Governments."[^128]

This Executive Memorandum acknowledges the unique legal relationship
between the federal government and Native American tribal governments
and seeks to ensure that rights of sovereign tribal governments are
fully respected by federal agencies.[^129] It provides that executive
branch activities shall operate within a government-to-government
relationship with federally recognized tribal governments, and consult,
"to the greatest extent practicable," prior to taking actions that
affect them.[^130] All such consultations are required to be "open and
candid," allowing tribal governments to evaluate potential
impacts.[^131]

###  {#section-5 .unnumbered}

### C. Eagle Feathers and American Indian Religion {#c.-eagle-feathers-and-american-indian-religion .unnumbered}

Recognizing that eagle feathers hold a sacred place in American Indian
culture, President Clinton released an additional Executive Memorandum
on April 29, 1994, "Policy Concerning Distribution of Eagle Feathers for
Native American Religious Purposes."[^132] The Memorandum undertakes
policy and procedural changes to better accommodate religious practices,
requiring federal agencies to "take steps to improve their collection
and transfer of eagle carcasses and eagle body parts for Native American
religious purposes."[^133] This includes, among other actions,
simplifying the eagle permit application process, ensuring first
priority for distribution of eagles to Native American permit
applicants, and "ensuring respect and dignity in the process of
distributing eagles for Native American religious purposes to the
greatest extent practicable."[^134]

# **V. Federal Consultation and Coordination with american Indian Tribal Governments**

> *When you gave us peace, we called you father, because you promised to
> secure us in possession of our lands. Do this, and so long as the
> lands shall remain, the beloved name will remain in the heart of every
> Seneca.*

######  Cornplanter, Seneca

> (from an address to George Washington, 1790)[^135]

### A. Executive Order (E.O.) 13175 {#a.-executive-order-e.o.-13175 .unnumbered}

In the formulation and implementation of federal policies with tribal
implications, E.O. 13175, "Consultation and Coordination with Indian
Tribal Governments," requires federal agencies to "respect Indian tribal
self-government and sovereignty, honor tribal treaty and other rights,
and strive to meet the responsibilities that arise from the unique legal
relationship between the Federal Government and Indian tribal
governments."[^136] "Early consultation" is mandated in the process of
developing, or prior to implementing, proposed regulations with tribal
implications. Federal agencies are further tasked with providing to the
Office of Management and Budget a "statement of the extent to which the
concerns of tribal officials have been met."[^137]

###  {#section-6 .unnumbered}

### B. Practical Considerations {#b.-practical-considerations .unnumbered}

The following are some practical considerations for engaging in
consultation or coordination with American Indian tribal
representatives, whether pursuant to NAGPRA, issuance of an ARPA permit,
NHPA Section 106, or an E.O.:

-   It is not the responsibility of federal agencies to settle disputes
    between different tribes during consultation. In fact, in most cases
    it is not at all recommended, especially if tribal politics are
    involved.

-   Individual tribal representatives are usually not given unilateral
    authority to represent their tribe. Rather, they may be required to
    take information from an initial consultation back to a tribal
    council or tribal elders for their input. This can be a timely
    process of building consensus so that decisions can be made.

-   Some American Indian tribes or tribal representatives will want to
    be paid for certain consultations that they deem an intellectual
    property right issue.[^138]

-   Federal agencies possess a wealth of documentary materials such as
    maps and studies that can be very helpful to American Indians and
    create a better understanding during consultations.

### VI. DoD AMERICAN INDIAN AND ALASKA NATIVE POLICY {#vi.-dod-american-indian-and-alaska-native-policy .unnumbered}

Will you ever begin to understand the meaning of the very soil beneath
your feet? From a grain of sand to a great mountain, all is sacred.
Yesterday and tomorrow exist eternally upon this continent. We natives
are guardians of this sacred place.

Peter Blue Cloud, Mohawk[^139]

In 1998, DoD initiated formulation of its American Indian and Alaska
Native Policy for interacting and working with federally recognized
American Indian and Alaska Native governments.[^140] This policy,
promulgated in 2001, requires DoD personnel to consider and address
concerns of affected tribes prior to reaching decisions that may
significantly affect protected tribal resources,[^141] tribal
rights,[^142] or Indian lands.[^143]

There are over 570 federally recognized Indian tribes,[^144] each with
its own distinctive cultural identity.[^145] "Just as is true with
foreign nations, a 'one-size-fits-all' prescription for consultation
with Indian tribes is neither appropriate nor possible...installations
should be mindful of the fact that tribes all have different ways of
controlling property, harvesting natural resources, revering the
environment, and even conducting consultations."[^146]

Consultation with tribes on a government-to-government basis means that
the installation commander should make formal contact with the tribe's
senior elected official and conduct relations with a "high degree of
formality."[^147] DoD is expected to build "stable and enduring
relationships" and engage in "meaningful communication" addressing
tribal concerns at both the tribal leadership-to-installation commander
and the tribal staff-to-installation staff levels.[^148]

The most important element of consultation is initiating dialogue with
potentially affected tribes *before* making decisions affecting tribal
interests. Consultation "is worth very little if decisions have already
been made."[^149] Consultation is to be conducted in good faith and,
according to the policy, with two principles kept in mind.[^150] First,
"tribes are not just another interested party; where tribal interests
may be significantly affected, tribes must be regarded as separate from
the general public for purposes of consultation."[^151] "Second, in most
cases, consultation should include an invitation to potentially affected
tribes to provide information to DoD concerning actions that may
significantly affect tribal interests; that information should be given
special consideration."[^152]

Recognition and respect are required for the significance tribes attach
to certain natural resources and properties of traditional or customary
religious importance. Such respect can be accorded in part by developing
tribal-specific protocols to protect tribal information disclosed to or
collected by DoD.[^153] A caveat is provided, however, that at present,
"legal authority to protect tribal information concerning sacred sites
is very limited."[^154] Therefore, this policy warns military
installations to be "careful not to overstate their ability to keep
sensitive tribal information confidential."[^155]

# **VII. Conclusion**

> *Our land, our religion, and our life are one. It is upon this land
> that we have hunted deer, elk, antelope, buffalo, rabbit, turkey. It
> is from this land that we obtained the timbers and stone for our homes
> and kivas.*
>
> *Hopi creed*[^156]

"The culture that is indigenous to the 48 contiguous states is the
American Indian culture, which was here long before the arrival of
modern Europeans and continues today."[^157] Since 1831, the federal
government's concept of guardianship in relation to that culture has
shifted from the federal government as guardian over American Indians,
to American Indians as guardians of their cultural heritage.

Accordingly, cultural resource preservation law developments over the
past few decades have provided American Indians with previously denied
cultural property rights, allowing for control and repatriation of
ancestral remains and other cultural items as opposed to their
scientific curation. Additionally, American Indians now possess the
legal ability to freely practice religion, including access to sacred
sites, and to garner respect for requests of confidentiality.

Most importantly, throughout new and revised legislation and recently
executed E.O.s, there exists a right of consultation with federal
agencies. This consultative role is designed to create an atmosphere of
trust and has been strengthened with the addition of THPOs pursuant to
the NHPA. Furthermore, consultations pursuant to laws such as NAGPRA and
NHPA are designed to create an atmosphere of trust through concepts
reiterated in statutory language and case law. These concepts include
engaging in good faith, open and meaningful consultation, as well as
requiring recognition and respect for the significance that American
Indians attach to cultural resources they deem sacred to their
traditions.

From science to sensitivity, federal agencies must now engage in a
sacred trust with American Indians as sovereign nations regarding their
cultural preservation rights.

[^1]: \* *Ms. Lauryne Wright (B.J.,University of Texas at Austin; J.D.,
    University of Baltimore School of Law) is assigned to the Air Force
    Legal Services Agency, Environmental Law Division, Compliance and
    International Law Branch in Rosslyn, Virginia. She is a member of
    the California Bar.*

    [^?^ [Native American Wisdom]{.underline}]{.smallcaps} 46 (Kristen
    M. Cleary ed., Barnes & Noble Books 1996).

[^2]: *See* Cherokee Nation v. Georgia*,* 30 U.S. (5 Pet.) 1 (1831)
    (Indian tribes were first described as distinct political entities,
    yet dependent nations. Defined as capable of governing themselves,
    they were made more like a state and less like a foreign nation
    because their lands were within the United States.).

[^3]: The term "Native American" came into usage in the 1960s and was
    originally applied to American Indians and Alaska Natives, later
    including Native Hawaiians and Pacific Island Territories Natives in
    some federal programs. [Dep't of Defense and United States Army
    Envtl. Policy Inst.]{.smallcaps}, [American Indian Cultural
    Communications Study Guide]{.smallcaps} (2001). According to
    Webster's II New Riverside University Dictionary 785 (1984), the
    terms "Native American" and "Indian American" are synonymous, with
    usage varying according to tribe and region. However, many members
    of North American Indian tribes may prefer the latter designation to
    the former because it is a legal term that includes Native
    Hawaiians, Aleuts, and other native Pacific Islanders. Furthermore,
    "Native American" was a term developed by the Bureau of Indian
    Affairs. See [Dep't of Defense and United States Army Envtl. Policy
    Inst.]{.smallcaps} s*upra* this note.

[^4]: "Cultural patrimony" means having ongoing historical, traditional,
    or cultural importance central to the Native American group or
    culture. 25 U.S.C. § 3001(3)(D) (1990).

[^5]: The term "cultural resources" is one that evolves with changes in
    society and new legislation. It can be real or personal property, as
    well as natural resources. The National Environmental Policy Act of
    1969 provides that environmental resources properly include
    historic, cultural, and natural resources. 42 U.S.C § 4321 (b)(4)
    (1970). For purposes of this article, reference to cultural
    resources includes historic and prehistoric resources, as well as
    traditional or ceremonial property.

[^6]: [Native American Wisdom,]{.smallcaps} *supra* note 1, at 13.

[^7]: Pub. L. No. 59-209, 34 Stat. 225 (1906) (codified at 16 U.S.C. §§
    431-433 (1906)).

[^8]: [Sherry Hutt et al]{.smallcaps}., [Archeological Resource
    Protection]{.smallcaps} 21 (The Preservation Press, National Trust
    for Historic Preservation 1992).

[^9]: United States v. Diaz, 499 F.2d 113 (9^th^ Cir. 1974).

[^10]: The Antiquities Act also remains the only legislation with
    criminal sanctions covering paleontological materials and historic
    sites less than 50 years old. 16 U.S.C. § 431.

[^11]: Pub. L. No. 96-95, 93 Stat. 721 (1979) (codified at 16 U.S.C. §§
    470aa -- 470mm (1979)).

[^12]: 16 U.S.C. § 470bb(1). "Archaeological resources" includes past
    human life and resources that are over 100 years old and offer
    retrievable scientific information. The term does not include
    fossils, surface-collected arrowheads, rocks, coins, bullets or
    minerals. *Id*.

[^13]: *Id*. § 470ee(a). A government contractor acting on behalf of a
    federal agency would not be a private person requiring a permit.
    However, the contract should contain ARPA language to ensure that
    agency responsibilities and requirements under ARPA are maintained.
    *See* 32 C.F.R. § 229.8(c) (2003).

[^14]: Under ARPA, "Indian Tribes" include any Indian tribe, band,
    nation, or other organized group or community, including any Alaska
    Native village or regional village corporation as defined in, or
    established pursuant to, the Alaska Native Claims Settlement Act,
    Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified at 43 U.S.C. §§
    1601 - 1629 (1971)). 16 U.S.C. § 470bb(5).

[^15]: 16 U.S.C. § 470cc(c).

[^16]: *Id*. § 470cc(g).

[^17]: 43 CFR § 7.13(b) (2003). *See also* Attakai, et.al. v. United
    States*,* 746 F. Supp. 1395, 1411 (D. Ariz. 1990) (stating that it
    is evident the government's ownership and control of archaeological
    and historical resources is limited.).

[^18]: A violation of ARPA is a general intent crime. 16 U.S.C. §
    470ee(d).

[^19]: *Id*. §§ 470ee, 470ff.

[^20]: *Id*. § 470hh. Note also that the Archaeological and Historic
    Preservation Act of 1974, Pub. L. No. 93-291, 88 Stat. 174 (1974)
    (codified at 16 U.S.C. 469 -- 469c-1 (1974)) requires federal
    agencies to notify the Secretary of Interior whenever their
    activities may damage or destroy an archaeological site. It also
    requires agencies to either take actions necessary to preserve or
    recover information from such sites, or to assist the Secretary of
    Interior to report annually to Congress on archaeological protection
    and data recovery in the federal government. *Id.* § 469(3)(a).

[^21]: *See* 32 C.F.R. § 229.18(a) (2003).

[^22]: "To deter looting, the locations and other details of thousands
    of such sites are closely held secrets. Even the military, however,
    isn't able to stop casual artifact collectors and commercial
    salvagers from picking over such sites." Mike Toner, *Military Tries
    to Save History From Looters: Ancient Site, Relics Difficult to
    Preserve,* Atlanta Journal-Constitution, January 19, 2003, at A11,
    *available at* 2003 WL 8963666.

[^23]: Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C.
    § 3001 (1990)).

[^24]: Congressman Morris Udall (D-Ariz.), Statement to the U.S. House
    of Representatives on the passage of H.R. 5237, the Native American
    Graves Protection and Repatriation Act (Oct. 27, 1990). *See also*
    H.R. Rep. No. 101-877 (1990), *reprinted in* 1990 U.S.C.C.A.N. 4367.

[^25]: 25 U.S.C. § 3010.

[^26]: The Smithsonian Institution was specifically exempted from NAGPRA
    due to earlier passage of the National Museum of the American Indian
    Act of 1989, Pub. L. No. 101-185, 103 Stat. 1336 (1989) (codified at
    20 U.S.C. § 80q (1989)), which was the first federal legislation to
    address disposition of American Indian cultural property. This law
    allows the Smithsonian to establish the Museum of the American
    Indian and to repatriate cultural resources. However, it does not
    provide the process for repatriation that NAGPRA does.

[^27]: Under NAGPRA, "Indian tribe" means any tribe, band, nation or
    other organized group or community of Indians, including any Alaska
    Native village (as defined in, or established pursuant to, the
    Alaska Native Claims Settlement Act), which is recognized as
    eligible for the special programs and services provided by the
    United States to Indians because of their special status as Indians.
    25 U.S.C. § 3001(7).

[^28]: "Native Hawaiian" means any individual who is a descendant of the
    aboriginal people who, prior to 1778, occupied and exercised
    sovereignty in the area that now constitutes the State of Hawaii.
    *Id*. § 3001(10*). See also* *id*. § 3001(11) (defining "Native
    Hawaiian organization").

[^29]: *Id*. § 3002.

[^30]: "Repatriation" means to "expeditiously return." *Id*. §
    3005(a)(1).

[^31]: *Id*. §§ 3003-3005.

[^32]: *Id*. § 3001(3)(A)-(D).

[^33]: *Id*. § 3002(c)(2). Note also that an ARPA permit would be
    required for excavations by private persons on federal land. *Id*. §
    3002(c)(1).

[^34]: *Id*. § 3002(d)(1).

[^35]: *Id*.

[^36]: The following are authorized certifying authorities: the
    Secretary of a U.S. Department, the head of any U.S. agency or
    instrumentality, and the relevant Indian tribe or native Hawaiian
    organization. *Id*.

[^37]: *Id*. § 3002(d)(1)-(2).

[^38]: *Id*. § 3002(d)(3).

[^39]: *Id*. § 3010.

[^40]: Na Iwi O Na Kapuna O Makapu v. Dalton, 894 F. Supp. 1397, 1410
    (D. Haw. 1995).

[^41]: 256 F.3d 349 (5^th^ Cir. 2001).

[^42]: The Lipan Apache Band of Texas is not a federally recognized
    tribe. See *infra* note 65.

[^43]: 256 F.3d at 354.

[^44]: *Id*. at 352.

[^45]: *Id*. at 354.

[^46]: 194 F. Supp. 2d 977 (D. S.D. 2002).

[^47]: *Id*. at 981-982.

[^48]: *Id*. at 982.

[^49]: 43 C.F.R. § 10 (1977).

[^50]: 194 F. Supp. 2d at 986.

[^51]: *Id*.

[^52]: Yankton Sioux Tribe v. United States Army Corps of Engineers, 209
    F. Supp. 2d 1008 (D. S.D. 2002).

[^53]: 25 U.S.C. §§ 3003-3004 (1990).

[^54]: *Id*.

[^55]: *Id*. § 3003(b)(2).

[^56]: 894 F. Supp. 1397 (D. Haw. 1995).

[^57]: Sherry Hutt & C. Timothy McKeown, *Control of Cultural Property
    as Human Rights Law*, 31 [Ariz. St. L.J.]{.smallcaps} 363, 382
    (1999).

[^58]: 894 F. Supp. at 1402 .

[^59]: *Id*. at 1415.

[^60]: *Id*. at 1417.

[^61]: CV-96-00006-DAE (D. Haw. 1996) (unpublished opinion), affirmed by
    Ninth Circuit*. See* Hutt & McKeown, *supra* note 57, at 382-83.

[^62]: Monet v. United States, 114 F.3d 1195 (9^th^ Cir. 1997).

[^63]: 25 U.S.C. § 3002(1) (1990).

[^64]: In Idrogo & Americans for Repatriation of Geronimo v. Dept. of
    the Army & President Clinton, 18 F. Supp. 2d 25 (D.C. Cir. 1998), an
    individual who "believed" he was a direct descendant of Geronimo
    claimed entitlement to return of Geronimo's remains pursuant to
    NAGPRA. The Court granted the Army's motion to dismiss for lack of
    standing, finding that Idrogo had not claimed to be a "member of any
    recognized (or unrecognized, for that matter) Native American
    tribe." 18 F. Supp. 2d at 27. NAGPRA does not provide individuals
    with a basis for monetary relief. Romero v. Becken, 256 F.3d 349,
    354-55 (5^th^ Cir. 2001)(denying individual's claim for monetary
    damages--"NAGPRA exists to give protection to Native American
    artifacts, cultural items, and other such objects 'having ongoing
    historical, traditional, or cultural importance central to the
    Native American group or culture itself, rather than property owned
    by an individual Native American.' 25 U.S.C. § 3001(3)(d).").

[^65]: 25 U.S.C. § 3001(2). Unrecognized tribes with NAGPRA claims
    sometimes avoid the "standing" issue by affiliating with a
    recognized tribe. This acknowledges the government-to-government
    relationship of Indian tribes with the United States. The BIA
    publishes a list of federally recognized tribes every two years in
    the Federal Register. *See* Entities Recognized and Eligible To
    Receive Services From the United States Bureau of Indian Affairs, 67
    Fed. Reg. 134 (July 12, 2002).

[^66]: 25 U.S.C. § 3002(a)(2)(C).

[^67]: *Id*. §§ 3002(b), 3006(c)(4). NAGPRA provided for the
    establishment of a committee to monitor and review implementation of
    the inventory and identification process and repatriation
    activities. *See* *Id*. § 3006(a)-(i).

[^68]: The discovery also attracted attention because some physical
    features, such as the shape of the face and skull, appeared to
    differ from modern American Indians. Bonnichsen v. United States*,*
    217 F. Supp. 2d 1116, 1121 (D. Or. 2002).

[^69]: 217 F. Supp. 2d 1116 (D. Or. 2002) (appeal after remand, 969 F.
    Supp. 628 (D. Or. 1997)).

[^70]: The Army Corps of Engineers covered the site where the Kennewick
    man was discovered with approximately two million pounds of rubble
    and dirt, topped with 3,700 tree plantings, an act which undoubtedly
    hindered efforts to verify the age of the remains, and effectively
    obliterated efforts to determine whether other artifacts were
    present at the site that might have indicated a relationship to
    American Indians. *Id*. at 1126.

[^71]: *Id*. at 1130. The tribal claimants included the Confederated
    Tribes & Band of the Yakama Indian Nation, the Nez Perce Tribe of
    Idaho, the Confederated Tribes of the Umatilla Indian Reservation,
    the Confederated Tribes of the Colville Reservation, and the Wanapam
    Band, which is not a federally recognized tribe. *Id.* at 1122

[^72]: *Id*. at 1126. The administrative "record strongly suggests that
    the Corps' primary objective in covering the site was to prevent
    additional remains or artifacts from being discovered, not to
    'preserve' the site's archaeological value or to remedy a severe
    erosion control problem as Defendants have represented to this
    court." *Id*. at 1125.

[^73]: *Id*. at 1121.

[^74]: *Id*. at 1138. As the Court noted, "Interpreting the statute as
    requiring a 'present-day relationship' is consistent with the goals
    of NAGPRA: Allowing tribes and individuals to protect and claim
    remains, graves, and cultural objects to which they have some
    relationship, but not allowing them to take custody of remains and
    cultural objects of persons and people to whom they are wholly
    unrelated." *Id*. at 1136.

[^75]: *Id*. at 1138.

[^76]: [Native American Wisdom,]{.smallcaps} *supra* note 1, at 52.

[^77]: Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified as amended at
    16 U.S.C. § 470).

[^78]: The Act's purpose provides that "the preservation of this
    irreplaceable heritage is in the public interest so that its vital
    legacy of cultural, educational, aesthetic, inspirational, economic,
    and energy benefits will be maintained and enriched for future
    generations of Americans." 16 U.S.C. § 470(b)(4). The National
    Environmental Policy Act, passed several years later in 1969, stated
    among its other goals that the federal government shall "preserve
    important historic, cultural and natural aspects of our national
    heritage." Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42
    U.S.C. § 4331(b)(4)).

[^79]: 16 U.S.C. § 470f. The National Register of Historic Places is a
    basic inventory of historic resources in the United States
    administered by the National Park Service, and maintained by the
    "Keeper," who has authority to list and determine eligibility of
    historic properties. The National Register lists: (a) objects that
    are associated with events that have made a significant contribution
    to the broad patterns of our history; (b) objects that are
    associated with the lives of persons significant in our past; (c)
    objects that embody the distinctive characteristics of a type, or
    method of construction, or that represent the work of a master, or
    that possess high artistic values, or that represent a significant
    and distinguishable entity whose components may lack individual
    distinction; or (d) objects that have yielded, or may be likely to
    yield, information important in prehistory or history. 36 C.F.R. §
    60.4 (2003).

[^80]: 16 U.S.C. § 470f. The Advisory Council on Historic Preservation
    is an independent federal agency whose members are appointed by the
    President. ACHP members include the Architect of the Capitol;
    Secretaries of Interior, Agriculture, Defense and Transportation;
    Administrators of the EPA and GSA; Chairman of the National Trust
    for Historic Preservation; President of the National Conference of
    SHPOs; a governor, a mayor, a Native Hawaiian, and eight additional
    non-federal individuals. *Id*. § 470i(a).

[^81]: 36 C.F.R. § 800.1(a) (2003).

[^82]: 16 U.S.C. § 470f.

[^83]: 36 C.F.R. § 800.2(a)-(c).

[^84]: Under the NHPA, "Indian Tribes" include an Indian tribe, band,
    nation, or other organized group or community, including a native
    village, regional corporation, or village corporation, as those
    terms are defined in the Alaska Native Claims Settlement Act, which
    is recognized as eligible for the special programs and services
    provided by the United States to Indians because of their status as
    Indians. *Id*. § 800.16(m).

[^85]: Under the NHPA, Native Hawaiian Organizations are any
    organization that serves and represents the interests of Native
    Hawaiians; has as a primary and stated purpose the provision of
    services to Native Hawaiians; and has demonstrated expertise in
    aspects of historic preservation that are significant to Native
    Hawaiians. *Id*. § 800.2(s)(1).

[^86]: "Additional consulting parties" are certain individuals with a
    demonstrated interest in the undertaking due to the nature of their
    legal or economic relation to the undertaking or affected
    properties, or their concern with the undertaking's effect on
    historic properties. *See Id*. § 800.2(c)(5) and (d).

[^87]: *Id*. § 800.2(a).

[^88]: *Id*. § 800.2(c)(1)(i).

[^89]: *Id*. § 60.3(n) (2003).

[^90]: *Id*. § 800.2(c)(1)(i).

[^91]: 746 F. Supp. 1395 (D. Ariz. 1990).

[^92]: *Attakai,* 746 F. Supp. at 1406.

[^93]: *Id*. at 1408.

[^94]: *Id*. at 1407-1408. *See also* Pueblo of Sandia v. United States,
    50 F.3d 856 (10^th^ Cir. 1995) (National Forest Service violated
    NHPA regulations because its evaluation of a canyon, deemed a
    traditional cultural property by the Pueblo, for inclusion in the
    National Register was not reasonable or in good faith. Mailing of
    form letters soliciting information was not informed consultation
    with SHPO; no documentation of decision provided to SHPO.).

[^95]: *Attakai*, 746 F. Supp. at 1408.

[^96]: *Id*.

[^97]: *Id*.

[^98]: 16 U.S.C. § 470h-2(a)(1)-(2) (1966).

[^99]: *Attakai*, 746 F. Supp. at 1409.

[^100]: Section 106 Regulations Users Guide, Section 106 Major Changes,
    *available at* http://www.achp.gov/106changes.html.

[^101]: 36 C.F.R. § 800 (2003).

[^102]: Tribal lands include all lands within the exterior boundaries of
    any Indian reservation and all dependent Indian communities. *Id*. §
    800.16(x).

[^103]: The THPO is the tribal official appointed by the tribe's chief
    governing authority or designated by a tribal ordinance or
    preservation program who has assumed the responsibilities of the
    SHPO for purposes of section 106 compliance on tribal lands. *Id*. §
    800.16(w).

[^104]: *Id*. § 800.2(c)(2)(i)(A).

[^105]: *Id*. § 800.2(c)(2)(i)(B).

[^106]: *Id.* § 800.2(c)(2)(ii)(D).

[^107]: ACHP Section 106 Regulations Users Guide, *supra* note 100.

[^108]: 36 C.F.R. § 800.2(c)(2)(ii)(C).

[^109]: *Id*. § 800.2(c)(2)(ii)(B).

[^110]: [Native American Wisdom,]{.smallcaps} *supra* note 1, at 61.

[^111]: Indeed, some American Indian tribes considered the Endangered
    Species Act to be "Indian law." The Hopi consider all religious
    matters to be intellectual property. The Pueblos incorporate
    agriculture, such as corn, into ceremonies.

[^112]: *See* Pueblo of Sandia v. United States, 50 F.3d 856, 857
    (10^th^ Cir. 1995)(Sandia Pueblo tribal members visit Las Huertas
    Canyon, which they deem a traditional cultural property, to gather
    evergreen boughs for use in significant private and public cultural
    ceremonies. They also harvest herbs and plants along the Las Huertas
    Creek, which are important for traditional healing practices. The
    canyon contains many shrines and ceremonial paths of religious and
    cultural significance to the Pueblo.).

[^113]: \"Congress shall make no law . . . prohibiting the free exercise
    \[of religion\].\" [U. S. Const]{.smallcaps}., amend. I.

[^114]: 42 U.S.C. § 1996 (1978).

[^115]: Crow v. Gullet, 541 F. Supp. 785, 790 (D. S.D. 1982), *aff'd*,
    706 F.2d 856 (8^th^ Cir. 1983), *cert. denied,* 464 U.S. 977 (1983).

[^116]: *Attakai*, 746 F. Supp. at 1402.

[^117]: *Id*. at 1403.

[^118]: *Cf.* *Wilson v. Block,* 708 F.2d 735 (D.C. Cir. 1983), *cert.
    denied,* 464 U.S. 956 (1983) (U.S. Forest Service did not violate
    AIRFA with plans to expand a government-owned ski lodge atop San
    Francisco peaks in Coconino National Forest. Navajo and Hopi may
    have been hampered in the exercise of their beliefs, but they were
    not denied access to the sacred peaks.).

[^119]: *Attakai*, 746 F. Supp. at 1405 (citing Crow v. Gullet, 541 F.
    Supp. at 793-94).

[^120]: Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S.
    439, 455 (1988), *quoted in* *Attakai*, 746 F. Supp. at 1405.

[^121]: *Lyng*, 485 U.S. at 453-54.

[^122]: Exec. Order No. 13007, 61 Fed. Reg. 26,771 (May 24, 1996).

[^123]: *Id*. § 1(b)(iii).

[^124]: *Id*.

[^125]: *Id*. § 1*.*

[^126]: The E.O. provides for access to sites by "Indian religious
    practitioners," which is not defined in the E.O. *Id*. Hence, access
    pursuant to E.O. 13007 is not necessarily limited to federally
    recognized tribes or their members.

[^127]: *Id*. § 2(a)*.*

[^128]: *Id*.; Exec. Memorandum, "Government-Government Relations with
    Native American Tribal Governments," 59 Fed. Reg. 22951 (April 29,
    1994).

[^129]: Exec. Memorandum, *supra* note 128.

[^130]: *Id*. § (a)-(b).

[^131]: *Id*. § (b).

[^132]: Exec. Memorandum, "Policy Concerning Distribution of Eagle
    Feathers for Native American Religious Purposes," 59 Fed. Reg. 22953
    (April 29, 1994).

[^133]: *Id*.

[^134]: *Id*.

[^135]: [Native American Wisdom,]{.smallcaps} *supra* note 1, at 44.

[^136]: Exec. Order No. 13175, § 3(a), 65 Fed. Reg. 67249 (November 6,
    2000).

[^137]: *Id*. § 5(a)-(c).

[^138]: DoD may pay tribes for professional services rendered under
    contract, purchase order, or cooperative agreement, but does not pay
    "consultation fees." Military departments may reimburse for "invited
    travel" for the purpose of conferring upon official government
    business. 5 U.S.C. § 5703 (1966).

[^139]: [Native American Wisdom,]{.smallcaps} *supra* note 1, a t 10.

[^140]: This policy governs interaction with federally recognized tribes
    only; it does not govern interaction with unrecognized tribes,
    state-recognized tribes, Alaska Native village or regional
    corporations, or Native Hawaiians*. See* DoD American Indian and
    Alaska Native Policy, § (a) (1998). This policy took 20 months to
    create and involved a Tribal Steering Group, three mailings to all
    federally recognized tribes, and 15 visits to tribal gatherings. See
    DoD American Indian and Alaska Native Policy, (May 23, 2001),
    *available at*
    http://www.usace.army.mil/inet/functions/cw/cecwo/re/DoDPolicy.pdf.

[^141]: Protected tribal resources are "those natural resources and
    properties of traditional or customary religious or cultural
    importance, either on or off Indian lands, retained by, or reserved
    for, Indian tribes through treaties, statutes, judicial decisions,
    or executive orders, including tribal trust resources." DoD American
    Indian and Alaska Native Policy, preamble n. 3, (May 23, 2001),
    *available at*
    http://www.usace.army.mil/inet/functions/cw/cecwo/re/DoDPolicy.pdf.

[^142]: Tribal rights are defined in the policy as "those rights legally
    accruing to a tribe or tribes by virtue of inherent sovereign
    authority, unextinguished aboriginal title, treaty, statute,
    judicial decisions, executive order or agreement, and that give rise
    to legally enforceable remedies." *Id*.

[^143]: Indian lands are defined in the DoD policy as any lands title to
    which is either: 1) held in trust by the United States for benefit
    of any Indian tribe or individual; or 2) held by any Indian tribe or
    individual subject to restrictions by the United States against
    alienation. DoD American Indian and Alaska Native Policy, *supra*
    note 141.

[^144]: This number is subject to fluctuation. Refer to the most recent
    BIA list of federally recognized tribes. See *supra* note 65.

[^145]: DoD American Indian and Alaska Native Policy, *supra* note 141,
    § (n).

[^146]: *Id*.

[^147]: *Id.* § (h).

[^148]: *Id*. § (g).

[^149]: *Id*. § (k).

[^150]: *Id*. §§ (l)-(m).

[^151]: *Id*. § (m).

[^152]: *Id*.

[^153]: *Id*. § (r).

[^154]: Section 9 of ARPA and Section 304 of NHPA may provide some
    protection from a request for such information, but may not be
    enough to guarantee confidentiality in the face of a Freedom of
    Information Act (FOIA), 5 U.S.C. § 552, request for
    disclosure\--especially under NHPA, which does not cross-reference
    FOIA.

[^155]: DoD American Indian and Alaska Native Policy, *supra* note 141,
    § (r).

[^156]: [Native American Wisdom,]{.smallcaps} *supra* note 1, at 13.

[^157]: Bonnichsen v. United States*,* 217 F. Supp. 2d 1116, 1138 (D.
    Or. 2002).