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Section 3: Addressing Traditional Beliefs

and Practices

Ignorance is one of the greatest barriers to understanding between two

peoples. If we don’t understand each other, if we do not know the

culture, the languages, or the history of each other, we are unable to

see each other as human beings with value and dignity. This is

especially true in relations between Indians and non-Indians.

—William C. Wantland (1975)

Former Attorney General

Seminole Nation of Oklahoma

Administer programs and activities to address and be sensitive to

traditional American Indian and Alaska Native religious beliefs and

practices (American Indian/Alaska Native Policy, (FSM 1563)).

• Walk the land with American Indians and Alaska Natives to gain an

understanding and appreciation of their culture, religion, beliefs,

and practices.

• Identify and acknowledge these cultural needs in Forest Service

activities.

• Consider these values an important part of management of the

national forests.

This section includes information about—

• Traditional Beliefs

• Practices/Uses/Sites of Spiritual Importance

• Laws Affecting Management of Historic, Cultural, and Traditional Uses

of National Forest System Lands

– Antiquities Act of 1906

– Archaeological Resources Protection Act of 1979

– American Indian Religious Freedom Act of 1978

– American Indian Religious Freedom Act Amendment of 1994

– Religious Freedom Restoration Act of 1993

– Native American Graves Protection and Repatriation Act of 1990

– National Historic Preservation Act of 1966, as amended 1992

– Indian Sacred Sites Executive Order 13007 of 1996

Traditional Beliefs Most American Indian tribes and individual tribal members conceive of

spirituality, or sacred sites and activities, as including all aspects of their

way of life—a “wholistic” or all-inclusive existence. Indian people believe all

living things are interconnected. The spiritual and natural worlds are not

separate. Spirituality is a part of everyday life. For example, food roots are
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not only necessary for subsistence, but also possess spiritual significance

and serve ceremonial purposes. Therefore, gathering sites are not just

subsistence sites, they may be traditional, cultural places.

To Alaska Natives, subsistence represents the very core of their existence

as a people. It is a spiritual, cultural, physical, and economic means to

continue their heritage. It is the essence of their being. Celebrations,

stories, songs, dance, and spirituality are derived from subsistence activities. These activities teach skills that determine the future success of

younger tribal members as providers and productive members of the village

and ensure the perpetuation of the culture for generations to come.

Through subsistence activities, children learn respect for the wildlife and

fish that present themselves for use. They also learn to share, respect, and

provide for their elders, care for the land, and coexist with other human

beings and cultures.

The Alaskan experience clearly illustrates that where some non-Indian

cultures may make a distinction between an economic or subsistence

activity and a spiritual one, Indian people might consider both to have

spiritual significance. This difference in world-views between Indian cultures and many non-Indian cultures is critical in this discussion, because

laws that apply to traditional cultural properties may apply to many sites

that some non-Indian cultures might not readily recognize as spiritual in

nature, such as gathering sites.

Practices/Uses/ Indian people determine what is of spiritual importance to them. It is

Sites of Spiritual the responsibility of the Forest Service line officer to consult with Indian

Importance people when Forest Service activities may affect spiritual or cultural

practices, uses, sites, or areas. To gain accurate information about

Indian cultural activities, it is best to—

• Consult with traditional tribal members, spiritual practitioners,

and elders.

• During this consultation, keep in mind that the aboriginal territory of a tribe may extend beyond present reservation or Indian

community boundaries.

• Consult on a case-by-case basis and include treaty tribes and tribes

with a legal, historic relationship to a geographical area now occupied by another group.

A Forest Service line officer may have to decide among many land uses, all

of which may have legitimate, but conflicting, interests in the same landscape. Forest Service leaders and managers must recognize and try to

harmonize American Indian and Alaska Native cultural values as well as

other management values that may occur on the same piece of land, and

weigh potential impacts.

Traditional practitioners may feel any use, other than ceremonial, will

desecrate an area. Traditional use does not necessarily mean use which

occurs in the same location today as it did in the past. Rather it means use
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by Indian people in keeping with their traditional culture. Traditional

practices may take place in nonaboriginal areas for tribes who were moved

from their aboriginal territory or for individuals no longer living within their

aboriginal territory. Some use the terms “contemporary sacred sites” and

“traditional sacred sites” to differentiate between areas of historical use and

those of current use. The key is that the activity is in keeping with the

traditional culture. Line officers must consult with local tribes when they

consider a request from a tribal group or individual to conduct traditional

activities in nonaboriginal areas.

Generally, tribes do not need permission or authorization to practice

spiritual or cultural activities if a treaty reserves rights for such activities.

However, special use authorizations or other types of agreements, such

as Memorandums of Understanding or Agreement, may help formalize

the responsibilities of both the tribe and the Forest Service. These

agreements may:

• Address resource conservation requirements or fire danger.

• Assure that no conflicting uses occur during a tribe’s use of an area.

A permit does not mean the Forest Service is granting permission for the

activity, but rather that the Forest Service is documenting that the activity

will occur and what safeguards are necessary for resource conservation

and human safety. Information gathered during consultation with

Indian people about the requested use(s) of the land will help shape

the content, goals, and type of agreement needed.

Take care to ask tribes or tribal members only those questions pertinent

to the issue that necessitates an agreement, such as issues related to

resource protection or safety and sanitation needs. In most cases, number of individuals and length of stay are the primary concerns. Asking

specific questions about the nature of the ceremonies is usually

unnecessary.

Laws Affecting Several general environmental statutes include provisions for managing

Management of significant cultural resources on National Forest System lands. The NaHistoric, Cultural, tional Environmental Policy Act of 1969 (NEPA) and the Forest and Rangeand Traditional Uses land Renewable Resources Planning Act of 1974 (RPA), as amended by the

of National Forest National Forest Management Act of 1976 (NFMA), all address the need to

System Lands identify, evaluate, and protect significant cultural sites and to consult with

American Indian and Alaska Native peoples. (For more information on NEPA

consultation, see Section Two.) In relation to cultural resources, these laws

all draw upon the direction provided in the National Historic Preservation Act

(NHPA) and provide the broad management context within which NHPA

specifically addresses protection of cultural heritage.

The following discussion summarizes the laws that affect cultural

resources. These key points are by no means exhaustive; they are merely

those that have the most direct bearing on management of traditional

cultural sites and practices.
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Antiquities Act The Antiquities Act of 1906 (P.L. 59–209)—

• Provided penalties for the illegal removal, disturbance, or destruction of

any object of antiquity on Federal lands.

• Authorized the President to designate national monuments to protect

historic and prehistoric structures and other objects of historic or

scientific interest.

• Stipulated that when such structures or objects are situated on land

covered by an unperfected claim, or in private ownership, the land

required to protect the structures or objects can be relinquished to the

Federal Government.

• Required permits for the examination, excavation, or gathering of

objects of antiquity on Federal lands.

The penalties provided under the Antiquities Act of $500 and/or 90 days in

jail were so small as to be ineffective when large-scale looting and black

market sales of Indian artifacts became apparent in the 1960’s. Subsequently, this act was replaced by the Archaeological Resources Protection

Act (ARPA) to increase criminal penalties and to require permits for legal

excavation and removal of objects of antiquity. However, the Antiquities Act

is still used to designate national monuments.

Archaeological The purpose of the Archaeological Resources Protection Act of 1979 (ARPA)

Resources (P.L. 96–96) (Implementing Regulations at 36 CFR 296) is “to secure, for

Protection Act the present and future benefit of the American people, the protection of

(ARPA) archaeological resources and sites which are on public lands and Indian

lands.” ARPA—

• Sets felony-level penalties for destruction or theft of archeological

resources and facilitates effective law enforcement.

• Establishes a permit system and standards for institutions or individuals wishing to do archaeological research on Federal lands.

• Requires the Regional Forester to notify any Indian tribe that may

consider a site to have religious or cultural importance 30 days prior to

issuance of the permit. This responsibility has been delegated to Forest

Supervisors.

• Stipulates that records and locations of archaeological sites and sensitive cultural properties are exempt from disclosure under the Freedom

of Information Act (FOIA).

ARPA permits on Indian reservation or trust lands require tribal council

consent. For permits on National Forest System (NFS) lands, ARPA specifies

only that tribal councils be notified. While tribal council consent is not necessary for permits on NFS lands, it is in the best interest of the Forest Service to

reach resolution of tribal council objections to such permits.

American Indian The American Indian Religious Freedom Act of 1978 (AIRFA) (P.L. 95–341)

Religious Freedom states that it is the policy of the United States “to protect and preserve

Act (AIRFA) 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,
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use and possession of sacred objects, and the freedom to worship through

ceremonials and traditional rites.”

AIRFA is based on the fact that often, because of lack of knowledge, laws

designed for “such worthwhile purposes as conservation and preservation of

natural species and resources” result in the abridgment of religious freedom

of American Indian and Alaska Native practitioners.

Implementing regulations were never written for AIRFA and the well-known

“G-O Road” case (Lyng v. Northwest Indian Cemetery Protective Assoc., 485

U.S. 439, April 19, 1988) set a precedent for its interpretation.

The G-O Road case seemed to prove that AIRFA could do little to actually

protect sacred sites, but it did reaffirm the responsibility of Federal agencies

to insure that their policies and practices did not infringe on Indian religious freedom and that Federal agencies make a good faith effort to consult

with Indian people about protecting sacred sites.

The findings in the “G-O Road Case” were based on the fact that the Forest

Service made considerable effort to mitigate the impacts of road construction on Indian spiritual practices. The court found that “[N]othing in our

opinion should be read to encourage governmental insensitivity to the

religious needs of any citizen. It is difficult to see how the Government could

have been more solicitous. Such solicitude accords with the policy of the

United States expressed in the American Indian Religious Freedom Act to

protect and preserve the Indians’ access to sites, use and possession of

sacred objects, and the freedom to worship through ceremonials and traditional rites.”

While the G-O Road ruling was disappointing to tribes, it did emphasize the

need for Federal agencies to make a good faith effort to protect traditional

uses and sites. AIRFA does provide an avenue for sensitive responses to

traditional use needs.

The primary decisionmaking responsibility under AIRFA is with the involved

Federal agency. AIRFA does not mandate access to public land for traditional use purposes nor does it mandate that Indian traditional use and

spiritual concerns take precedence over other valid, competing uses. The

avenues for tribes to resolve disagreements under AIRFA are the Forest

Service’s internal appeal process and filing suit in Federal courts.

Over the last 5 years, several bills have been proposed to strengthen AIRFA,

but, to date, none have been signed into law. In 1994, the “American Indian

Religious Freedom Act Amendment of 1994” was signed, but the title is

misleading as it addresses only the use of peyote.

American Indian Commonly referred to as “the Peyote Bill,” the American Indian Religious

Religious Freedom Freedom Act Amendment of 1994 (P.L. 103–344) states that

Act Amendment “Notwithstanding any other provision of law, the use, possession, or

transportation of peyote by an Indian for bona fide traditional ceremonial

purposes in connection with the practice of a traditional Indian religion is

lawful, and shall not be prohibited by the United States or any State...”
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This amendment also provides a definition of Indian Religion as “any religion

which is practiced by Indians and the origin and interpretation of which is

from within a traditional Indian culture or community...”

Religious Freedom The Religious Freedom Restoration Act of 1993 (P.L. 103–141) statute

Restoration Act mandates that the “government should not substantially burden the free

exercise of religion without compelling justification.” The act further

provides a claim or defense to persons whose religious exercise is

substantially burdened by the government.

Native American The Native American Graves Protection and Repatriation Act (NAGPRA) of

Graves Protection 1990 (P.L. 101–601) (Implementing Regulations at 43 CFR 10) addresses the

and Repatriation rights of lineal descendants and members of Indian tribes, Alaska Native,

Act (NAGPRA) and Native Hawaiian organizations to retain certain human remains and

precisely defined cultural items. It covers items currently in Federal

repositories as well as future discoveries. NAGPRA requires Federal

agencies to:

• Prepare inventories of remains in their possession.

• Consult with affiliated American Indian and Alaska Native tribal groups

about the repatriation or treatment and disposition of these remains.

• Establish a process for the return, upon request, of institutionally held

skeletal remains, grave items, and other sacred objects to their groups

of cultural affiliation.

• Establish a process for the return of skeletal remains, grave items, and

other sacred objects discovered during planned cultural resource

inventory, evaluation, or excavation projects, as well as inadvertent

discoveries.

The Forest Service, having completed the necessary inventories and summaries

of materials in its possession, will focus on ongoing consultation, new discoveries, and the continuing process of repatriation.

National Historic The National Historic Preservation Act of 1966 (NHPA) (P.L. 89-665)

Preservation Act (Implementing Regulations at 36 CFR 800 and 36 CFR 60) states that

(NHPA) “the historical and cultural foundations of the Nation should be preserved

as a living part of our community life and development in order to give a

sense of orientation to the American people.” The 1992 amendments to

NHPA strengthen requirements for cooperation between Federal agencies

and American Indian tribes and Native Hawaiian Organizations. NHPA, as

amended, and its implementing regulations in 36 CFR 800—

• Establish the National Register of Historic Places and authorize regulations for State Historic Preservation Offices (SHPOs).

• Designate a process to inventory, evaluate, protect, and interpret

significant historic and archaeological sites.

• Direct Federal agencies to consider the effects of their actions on

significant cultural resources during all phases of planning and project

implementation. A recent court decision (Pueblo of Sandia v. United

States, 50 F.3d 856, 10th Cir. 1995) states that during consultation with

tribes to determine effects of government actions on sites, the Forest
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Service must make a good faith effort to elicit tribal concerns beyond just

sending a letter to the tribe.

• Direct the Federal Government to work in partnership with Indian

tribes to provide leadership in the preservation of the prehistoric and

historic resources of the United States.

• Direct the Federal Government to assist Indian tribes and Native

Hawaiian organizations to expand and accelerate their historic preservation programs and activities.

• If the tribe meets the guidelines and responsibilities of that office as

specified by the act, authorize tribes to assume the role of historic

preservation officer on tribal land.

• Strengthen the Federal agencies’ ability to maintain the confidentiality

of sensitive material by giving them the authority to withhold sensitive

locational or cultural information from public disclosure if that disclosure may—

– Cause a significant invasion of privacy.

– Risk harm to the historic resources.

– Impede the use of a traditional religious site by practitioners.

Unlike ARPA, the Forest Service cannot unilaterally withhold documents it

thinks are confidential. It must consult with the Keeper and the Council on

such withholdings (Section 306 of NHPA; 16 U.S.C. 470w-3). The 1992

amendments say that “properties 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.”

There has been considerable debate over this point. National Park Service

Bulletin 38, “Guidelines for the Evaluation and Documentation of Traditional Cultural Properties” states “the National Register is not the appropriate vehicle for recognizing cultural values that are purely intangible, nor is

there legal authority to address them under Section 106 of NHPA unless

they are somehow related to a historic property.” Internal Forest Service

direction, (USDA Forest Service, Chief’s Office 1991—Appendix A) amplifies

this view: “A property may be eligible to the National Register of Historic

Places and may have traditional values associated with it, but traditional

values do not make an area eligible unless they are directly associated with

a historic property.”

When deciding whether to address a traditional cultural property concern

under NHPA or AIRFA, keep in mind that properties determined to be

eligible for the National Register through the NHPA consultation process

are not guaranteed protection. NHPA is a procedural law, directing the

Forest Service to mitigate adverse effects to significant properties. Since

effects to spiritual values and sacred sites are often “not mitigatable,”

NHPA may not offer the kind of protection often sought for these types of

sites.

Indian Sacred Sites— On May 24, 1996, President Clinton signed Executive Order 13007, titled

Executive Order “Indian Sacred Sites.” This executive order directs Federal agencies “to the

13007 extent practicable permitted by law and not clearly inconsistent with

essential agency functions to:”
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• Accommodate access to and ceremonial use of Indian sacred sites by

Indian religious practitioners.

• Avoid adversely affecting the physical integrity of such sites to the

extent practicable.

• Maintain the confidentiality of sacred sites.

• Submit a report to the President on May 24, 1997, listing any changes

necessary to accommodate access and use of sacred sites, changes in

procedures implemented or proposed to facilitate consultation with

Indian tribes and religious leaders relative to this order as sacred by

virtue of its established religious significance to, or ceremonial use by

an Indian religion.

A sacred site is defined as being “any specific, discrete, narrowly delineated

location on Federal land, 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 individual

has informed the agency of the existence of such a site.”

EO 13007 addresses only Federally Recognized Tribes and does not affect

efforts to protect sites important to non-Federally Recognized Tribes. The

order is not intended to create any additional right, benefit, or trust responsibility. Currently, the Forest Service is working with other Federal agencies

to develop implementation procedures for EO 13007. A copy of this executive

order may be found in Appendix A.

Summary The laws, regulations, and policies described here emphasize the importance of American Indian/Alaska Native involvement at the earliest possible planning stages and provide a framework for consultation. The Forest

Service retains the responsibility to make the final decision, taking into

consideration all of the information learned through the consultation

processes. These statutes promote open dialog, possible solutions, compromise, and most importantly, a climate in which tribal governments and the

Forest Service can work together to protect resources and values.