USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Forest Service

Office of Tribal Relations

REPORT TO THE SECRETARY OF 

AGRICULTURE

USDA Policy and Procedures Review and Recommendations:

Indian Sacred Sites

Prepared by:

USDA Office of Tribal Relations and USDA Forest Service
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, 

color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual 

orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any 

public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative 

means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET 

Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil 

Rights, 1400 Independence Avenue, S.W., Washington, DC 20250-9410, or call (800) 795-3272 (voice) or (202) 720-6382 

(TDD). USDA is an equal opportunity provider and employer.

August 2012
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

Table of Contents

EXECUTIVE SUMMARY ............................................................................................................ 1

INTRODUCTION........................................................................................................................................................................6

METHODOLOGY.................................................................................................................................................................... 12

GATHERING INFORMATION .................................................................................................. 12

PERSONNEL CONTRIBUTING TO THIS EFFORT.................................................................. 13

ACKNOWLEDGEMENTS AND RECOMMENDATIONS ................................................................................... 15

ACKNOWLEDGEMENTS.......................................................................................................... 15

RECOMMENDATIONS ............................................................................................................. 24

I. RELATIONSHIPS/COMMUNICATIONS ........................................................................ 25

II. DIRECTION/POLICY....................................................................................................... 27

III. ON-THE-GROUND ACTIONS......................................................................................... 29

SACRED SITES AND THE FOREST SERVICE........................................................................................................ 30

SYNTHESIS OF THE LEGAL LANDSCAPE ............................................................................................................. 30

OVERVIEW................................................................................................................................ 30

GOVERNMENT’S TRUST RESPONSIBILITY TO TRIBES..................................................... 31

FIRST AMENDMENT OF THE CONSTITUTION..................................................................... 32

THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE CLAUSE ............................. 32

STATUTES SUPPORTING SACRED SITE PROTECTION....................................................... 34

OTHER AUTHORITIES SUPPORTING SACRED SITES PROTECTION ................................ 39

LAND MANAGEMENT PLANNING PROCESSES .................................................................. 40

RECOGNITION/NEXT STEPS .......................................................................................................................................... 43

APPENDICIES........................................................................................................................................................................... 45

APPENDIX A: GLOSSARY

APPENDIX B: EXECUTIVE ORDER 13007 ON INDIAN SACRED SITES

APPENDIX C: 2008 FARM BILL

CULTURAL AND HERITAGE COOPERATION AUTHORITY PROVISIONS

APPENDIX D: SUMMARY OF SACRED SITES LISTENING SESSIONS

APPENDIX E: SUMMARY OF FOREST SERVICE EMPLOYEE COMMENTS

APPENDIX F: SELECTED COURT DECISIONS

APPENDIX G: EXISTING AUTHORITIES

APPENDIX H: SUMMARY OF 2003–2007 SACRED SITES POLICY REVIEW

APPENDIX I: SECRETARY VILSACK LETTER REQUESTING SACRED SITES REVIEW

APPENDIX J: SUMMARIES OF COMMENTS AND CHANGES TO DRAFT REPORT
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EXECUTIVE SUMMARY

Report to the Secretary of Agriculture

USDA Office of Tribal Relations and Forest Service Policy and Procedures Review

Indian Sacred Sites

In 2010, Secretary of Agriculture Thomas J. Vilsack directed the U.S. Department of Agriculture’s

(USDA) Office of Tribal Relations and the USDA’s Forest Service (Forest Service) to engage in 

dialogue with American Indian and Alaska Native (AI/AN) Tribal leaders to find out how USDA can do 

a better job of accommodating and protecting AI/AN sacred sites while simultaneously pursuing the 

Forest Service’s multiple-use mission. Secretary Vilsack requested information about unintended 

consequences of land management decisions affecting sacred sites and AI/AN communities whose 

cultural survival is often deeply rooted in these sites.

In response to Secretary Vilsack’s request, the USDA 

Office of Tribal Relations and the Forest Service formed a 

team, led by senior executives, to talk to Tribes and other 

AI/AN communities about how the Forest Service can do a 

better job incorporating the accommodation and protection 

of sacred sites into the agency’s multiple-use mission. This 

Report to the Secretary of Agriculture was developed in 

response to Secretary Vilsack’s request. 

What is in this Final Report?

This report and its appendices constitute a review of law, 

policy, and procedures, with recommendations for changes 

based on Tribal consultation and public comments.

This report reflects an interpretation of some of the voices 

of AI/AN people as requested by Secretary Vilsack. It 

provides the Secretary with information about how USDA and the Forest Service are protecting AI/AN 

sacred sites on National Forest System (NFS) lands and how USDA and the Forest Service might 

improve the manner in which sacred sites are protected.

This report does not, by itself, change policy or have any effects, significant or otherwise, on the human 

or natural environment and does not constitute final agency action. In developing this report, the 

Government neither required nor requested that Tribes provide specific information about the nature and

location of their sacred sites, nor were AI/AN people asked to reveal the beliefs and practices associated 

with these sites.

How was this Final Report compiled?

Initially, in 2010 through July 2011, more than 50 meetings (listening sessions) were held across the 

Nation in Indian Country and Alaska Native villages. These listening sessions reached out to Native

communities by engaging not only Tribal leadership but also culture-keepers, traditional practitioners, 

and unaffiliated Native descendants. The team conducting this review surveyed Forest Service 

employees to learn about what they think and what they have observed regarding the effectiveness of the 

“I have asked the USDA Office of Tribal 

Relations to work closely with the USDA 

Forest Service to immediately begin 

convening consultative sessions with Native 

American leaders. This dialogue should be 

about how we can do a better job 

addressing sacred sites issues, while 

simultaneously balancing pursuit of the 

Forest Service’s mission to deliver forest 

goods and services for current and future 

generations. We need to examine the 

effectiveness of existing laws and 

regulations in ensuring a consistent level of 

sacred site protection that is more 

acceptable to tribes.” – Secretary Vilsack, 

July 2, 2010
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agency’s efforts to manage land that includes sacred sites. A comprehensive review of current laws, 

rules, regulations, and policies pertaining to AI/AN sacred sites was also conducted. The team 

developed a Draft Report to the Secretary (“Draft Report”) that included a suite of recommendations 

for consideration by the Secretary.

In the second phase of inquiry, July through November 2011, the Draft Report was distributed to all 

Federally Recognized Indian Tribes and Alaska Native Corporations (ANCs). AI/AN Tribal

governments and ANCs were invited to comment, consult, and otherwise engage in continuing dialogue 

on the Draft Report. Specifically, the team requested a review of the effectiveness of recommendations 

made in the Draft Report. Local Forest Service officials and team members held 49 meetings reaching 

125 Tribes and ANCs and received additional correspondence from 22 Tribes and inter-Tribal

organizations. Additionally, notice of the Draft Report’s availability was published in the Federal 

Register for public notice and comment. Twenty-two (22) comments on the content of the Draft Report

were received from groups and individuals in response to the Federal Register notice. Another 21 public 

comments were received specifically regarding the Forest Service decision to allow the use of treated 

wastewater (sewage effluent) for snowmaking at the Snowbowl Ski Area on the San Francisco Peaks 

near Flagstaff, Arizona, but did not include comment on the Draft Report.

What did we hear?1

Three broad but distinctive themes emerged from listening sessions and the review of the Draft Report

by AI/AN participants and the public:

I. Relationships/Communication. We observed that AI/AN people and Forest Service managers 

share many of the same concerns about sacred sites protection. We heard that partnering with Tribes to 

understand and manage sacred sites is critical to their protection. Although participants shared stories

about successful partnering and communication between Tribes and the agency, the team conducting 

this review also heard about inconsistencies in Forest Service consultative/collaborative processes. We 

heard that Forest Service attempts at consultation are ineffective when done in ways that Tribes do not 

consider meaningful.

II. Direction/Policy. We heard that land managers sometimes do not use the discretion currently 

available to them in laws and policies for the benefit of the Tribes. Listening session participants and 

Forest Service employees said that sacred site issues are not weighed equally with competing uses of the 

NFS.

2

Participants expressed concern with narrow interpretation of Executive Order (E.O.) 13007,

Indian Sacred Sites, and that NFS managers would benefit from more explicit policy language to protect 

sacred sites. We heard of barriers to protection created by the mining laws.

III. On-the-Ground Actions. The team conducting this review heard that, in some cases, the Forest 

Service has recognized and protected sacred sites using currently available legal tools. We heard that 

some NFS land management decisions and actions and the activities of third parties, however, have led 

 

1

“We” and “our” in this report is used to refer to the USDA Office of Tribal Relations and the Forest Service, which jointly 

conducted this review.

2 Specifically, some commenters noted the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), does not include 

consideration of sacred sites, and states “It is the policy of the Congress that the national forests are established and shall be 

administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C.§§528 (1960).
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to damage, destruction, and desecration of AI/AN sacred sites. We heard that the consistent on-theground application of currently available tools could begin to reverse past harms to sacred sites. 

Alternatively, some Tribes are grateful that their sacred sites are within NFS boundaries rather than 

owned by private individuals, companies, or other ownerships that might not value their cultural 

traditions.

Some comments on the Draft Report submitted by the public in response to the Federal Register notice 

were from groups with interests in the management of the NFS that were critical of the report and of the 

process used to develop the report. Specifically, these groups were critical of the legal analysis in the 

Draft Report, and the agency authorities cited within as tools for protection of sacred sites, which they 

considered to be overreaching and in conflict with the agency’s multiple-use mandate. The second 

group of public comments included comments that were supportive of the report but requested further 

detail on how the recommendations will be implemented. The recommendations in this report follow

the themes of what was heard: relationships, policy, and on-the-ground action.

 

What is the context of this Final Report?

Tribal Sovereignty and Trust Responsibility: The U.S. Department of Agriculture and the Forest 

Service affirm the principles of Tribal sovereignty, self-determination, and self-governance, and the 

unique Government-to-Government relationship that exists between the United States and Federally 

Recognized Tribes.

Tribal and Public Processes: This report and its recommendations were developed in 

consultation with Tribes, per direction in E.O. 13175 (“Consultation and Coordination with Indian 

Tribal Governments”),

3

and in keeping with the Federal trust relationship with the Tribes. Although this 

report does not constitute a rulemaking or final agency action, notice of the Draft Report’s availability 

was published in the Federal Register4and the public was invited to comment in the interest of 

transparency and open Government. Concerns heard from AI/AN and public commenters were 

considered when editing the Draft Report and will be considered if and when USDA moves forward 

with implementation of any of the recommendations. Any changes to regulation or policy suggested by 

this review will be adopted in accordance with the Administrative Procedure Act (APA), Title 5, United 

States Code (U.S.C.) Section 553, and other relevant authorities, including those requiring Tribal

consultation.

Multiple Use: Protection of AI/AN sacred sites and accommodation of a Tribe’s particular use 

of a sacred site does not entail complete exclusion of other uses. Sacred sites must be considered in the 

context of other uses. The recommendations do not conflict with the agency’s statutory mandate to 

manage for multiple uses of the NFS under the Multiple Use-Sustained Yield Act.

Decisionmaking Authority: The Forest Service retains and cannot divest itself of decisionmaking 

authority for land management actions on the NFS.

Funding and Capacity Limitations: The recommendations in this report were developed based 

on input regarding what was needed for effecting positive change and were not driven by budget 

 

3 E.O. No. 13175, 65 Fed. Reg. 67,249 (Nov. 9, 2000).

4

Sacred Sites, E.O. 13007, Public Notice; Request for Comment. 76 Fed. Reg. 47,538 (Aug. 5, 2011).
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 4

considerations. While the Forest Service acknowledges that there is no new agency funding associated 

with the recommendations, many of the recommendations can be accomplished without new funding. 

Some recommendations could be accomplished by shifting existing funds.

What are the next steps?

This Final Report is addressed to Secretary of Agriculture Thomas J. Vilsack for his review and 

consideration. The development of this report and recommendations is already changing how AI/AN 

Tribes and people and the Forest Service interact regarding land management decisions for the good of 

all Americans. It is our hope that the recommendations contained in this Final Report will lead to 

meaningful changes in the way AI/AN sacred sites are protected and accessed. Perhaps just as 

important, the recommendations will lead to a better understanding of AI/AN values as American 

values.

If the Secretary moves forward with specific policy changes to address the recommendations in this 

Final Report, including revisions to Forest Service directives, we may conduct additional Tribal

consultation and public dialogue before those changes are implemented, in accordance with the 

Administrative Procedure Act and other relevant authorities.
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Report to the Secretary of Agriculture

USDA Policy and Procedures Review: Indian Sacred Sites

Office of Tribal Relations and Forest Service

INTRODUCTION

The Forest Service, an agency of the U.S. Department of Agriculture (USDA), is charged with 

sustaining the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs 

of present and future generations. Whether in private, State, Federal, or Tribal ownership, many people 

from all walks of life consider the forests and grasslands, and the resources they provide, to be sacred. It 

is abundantly clear that the Nation’s American Indian and Alaska Native (AI/AN) people retain 

histories, values, and spiritual underpinnings that are inextricably intertwined with America’s forests; 

especially with the national forests. Many of these cultural and physical connections predate

establishment of the United States and the National Forest System (NFS). As Federal executives of the 

Forest Service and USDA’s Office of Tribal Relations (OTR), we take this charge as a solemn 

responsibility. If we do not act responsibly to protect the sacred values associated with these lands, we 

may fall short of the Forest Service fiduciary obligations to Tribes, and we are all diminished. We know 

so little about AI/AN sacred sites as an agency. It is through the voices of the AI/AN people that we are 

learning about and affirming the real importance of sacred sites; these voices instruct us. 

AMERICAN INDIAN AND ALASKA NATIVE SACRED SITES

Like almost all public and private lands in the United States, all or part of every national forest is carved 

out of the ancestral lands of AI/AN people. Their historical and spiritual connection to the land has not 

been extinguished despite changes in title. AI/AN sacred sites are integral to the lands managed by the 

Forest Service. These sacred sites are those locations considered to be sacred by indigenous Americans, 

the citizens of Federally Recognized Tribes (FRTs) and other AI/AN peoples who may or may not be 

associated with a specific FRT. The complexity and breadth of Forest Service statutory responsibilities 

in managing the NFS are immense. The Forest Service manages 193 million acres of national forests 

and grasslands, visited and shared by millions of members of the American public and the world, each 

of whom has a different relationship with the land and a different perspective on what activities are 

appropriate. The agency is required by law to administer the NFS for outdoor recreation, range, timber, 

watershed, and wildlife and fish purposes;

5

to analyze the environmental impacts of decisions it 

authorizes;

6

to protect threatened and endangered species;

7

to conduct research;

8

and to carry out a host 

of other responsibilities on NFS lands. Untold numbers of AI/AN sacred sites are located on these same 

 

5 Multiple-Use Sustained-Yield Act of 1960 (MUSYA), 16U.S.C.§§528-531 (1960). MUSYA states “’Multiple use’ means: 

The management of all the various renewable surface resources of the national forests so that they are utilized in the 

combination that will best meet the needs of the American people; making the most judicious use of the land for some or all 

of these resources or related services...that some land will be used for less than all of the resources...and harmonious and 

coordinated management of the various resources...with consideration being given to the relative values of the various 

resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.” 16 

U.S.C. §531(a).

6 National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §4321 et seq.. 

7 Endangered Species Act of 1973 (ESA), 16. U.S.C. §1531 et seq. 

8

Forest and Rangeland Renewable Resources Planning Act of 1974 (FRRRPA), 16 U.S.C. 1600 et seq. 
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lands. Other agencies in the USDA and other Federal Departments9also have roles in management of 

NFS lands that may affect AI/AN sacred sites.

On May 24, 1996, President Clinton signed Executive Order (E.O.) 13007 on Indian Sacred Sites, to 

“protect and preserve Indian religious practices.”10 It requires Federal agencies responsible for the 

management of Federal lands, to the extent practicable, permitted by law, and not clearly inconsistent 

with essential agency functions, to accommodate access to and ceremonial use of Indian sacred sites by

Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites. 

Agencies are required to, where appropriate, maintain the confidentiality of sacred sites. E.O. 13007 

defines 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.”

E.O. 13007, §1(b)(iii) (Emphasis added to highlight that it is Indian Tribes and appropriate 

representatives of AI/AN religions who identify which locations are sacred sites under the E.O.). 

E.O. 13007 builds on the body of law that directs or allows Federal agencies to protect or accommodate 

AI/AN sacred sites and their use. 

CONSULTATION 

Consultation with AI/AN Tribal governments is legally mandated and integral to the agency’s trust 

responsibility to Tribes. Many Federal laws and national policies such as executive memoranda and 

executive orders, including E.O. 13007,11 provide agencies with a duty to consult and are a direct 

outgrowth of the Government’s affirmation of the principles of Tribal sovereignty, self-determination, 

and self-governance, and the unique Government-to-Government relationship that exists between the 

United States and the Tribes.12 Among the laws that specifically require consultation are the 

Archeological Resources Protection Act (ARPA), Native American Graves Protection and Repatriation 

 

9 U.S. Department of the Interior agencies such as the Bureau of Land Management (BLM), the National Park Service, and 

the U.S. Fish and Wildlife Service, in particular, hold management responsibility for hundreds of millions of acres of Federal 

land; however, the U.S. Department of Defense and others also have land management responsibilities. While this report will 

be shared with, and, we hope, will be useful for other agencies, the focus of this report is on policies and procedures 

applicable to and employed by USDA, specifically, the Forest Service. 

10 E.O. 13007, 61 Fed. Reg. 26771 (May 24, 1996). E.O. 13007 refers to “Indian Sacred Sites.” In this report we generally 

use the term “American Indian/Alaska Native” as a broadly inclusive term to refer to American Indians, Alaska Natives, First 

Nations, First Peoples, Native Americans, and other indigenous people. See Glossary, Appendix A of this report, for 

explanation of how terms are used in this report. A copy of E.O. 13007 appears in Appendix B of this Report. 

11 E.O. 13007 references Executive Memorandum of April 29, 1994, ‘‘Government-to-Government Relations

with Native American Tribal Governments,” which requires federal executive agencies to consult with Tribes on a 

Government-to-Government basis to the greatest extent practicable and to the extent permitted by law on actions that affect 

Federally Recognized Tribal Governments.

12 Consultation with ANCs is based on Public Law 108-199, Div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by 

Public Law 108-447, Div. H, Title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the 

Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the 

same basis as Indian tribes under Executive Order No. 13175.”
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 8

Figure 1: Historical Trauma

The history of AI/AN peoples in America after European 

contact and colonization is a history of trauma: 

degradation of AI/AN populations and cultures from 

disease, appropriation of and removal from traditional 

lands, forced disuse of native languages and native 

subsistence lifeways, separation of families through 

boarding schools and adoption, suppression of AI/AN

religions, and genocide. These actions and others by the 

Spanish, French, English, and, later, the Government and 

citizens of the United States, left a legacy of trauma that 

continues to plague AI/AN communities. We recognize 

that the policies of self-determination and selfgovernance are intended to help remedy some of that 

harm. We also recognize that the continued existence of 

and access to AI/AN sacred sites is an important 

component to necessary healing. To disregard the value 

of AI/AN sacred sites would perpetuate the cycle of 

trauma.

Act (NAGPRA), and the National Historic Preservation Act (NHPA). More about each of these can be 

found in the “Synthesis of the Legal Landscape” section below.13

Consultation is not merely about process. It is about working together in good faith toward informed, 

workable decisions. Because of the unique Government-to-Government relationship that exists, the 

Tribes are not treated like other public agencies, the public, or special interest groups; the Tribes’ input 

is tracked separately and may be treated as confidential and exempt from disclosure under the Freedom 

of Information Act (FOIA) under certain circumstances.

INDIGENOUS VALUES—CHANGING 

LANDSCAPES

Between November 2010 and April 2011, Forest 

Service and USDA managers participated in more 

than 50 in-person and telephonic listening 

sessions with more than 500 individual AI/AN 

people across the United States and many Tribes 

and Alaska Native Corporations (ANCs).

14 In 

July 2011, the agency released a Draft Report

detailing what was heard in these listening 

sessions, with recommendations for policy 

changes, and offered FRTs and ANCs the 

opportunity for Government-to-Government

consultation on the Draft Report.

15

 In listening 

sessions leading up to the Draft Report, and 

sessions to review its contents, participants shared 

stories of challenges and opportunities, as well as 

how some sacred sites had been destroyed or 

degraded while others had been respected and protected. Tribal leaders and others shared their concerns 

and observations about relationships, access, sustainability, sovereignty, spirit, and communication 

through consultation. These communities’ cultural and spiritual practices are tied to their cultural 

responsibilities and mandates to take care of the natural world by performing ceremonies and rites that 

are linked to specific places. Throughout the conversations with AI/AN peoples, participants told us 

that sacred sites must be protected, not just for their Tribe or to perpetuate their beliefs, but for the health 

of the entire world. Tribes and others reiterated that sacred sites continue to be reduced in number and 

quality through actions required, or approved, by the Forest Service. Conversely, it was also clear there 

is a growing awareness and appreciation of AI/AN sacred sites by the current Administration and the 

agency. Some expressed hope that the old patterns of destruction and degradation would give way to 

 

13 ARPA, 16 U.S.C. 470cc(c) (1979), (requiring Federal agencies to notify Tribal authorities before

permitting archeological excavations on Tribal lands); NHPA, 16 U.S.C. § 470 et seq. (1966), Section 101(d)(6)(B). (“In 

carrying out its responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian tribe or Native 

Hawaiian organization that attaches religious and cultural significance to properties described [below].”); NAGPRA, 25 

U.S.C. §§3002 (Ownership, including Inadvertent Discovery and Intentional Removal); 3002 (Inventory); 3005 

(Repatriation); 3006 (Review Committee). 

14 See Appendix D for the dates and locations of these listening sessions. 

15 The Forest Service also requested and received public comment on the Draft Report and surveyed Forest Service 

employees. More information on the process of building the Draft Report and modifying it after AI/AN people and the

public had the opportunity to consult or otherwise comment on it can be found in the Methodology Section, below. 
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new patterns of protection, accommodation, and respect, but many expressed skepticism that this review 

would result in true change. See figure 1, “Historical Trauma.”16

We heard from participants and Tribal leaders that they believe the mainstream American society 

strongly values religious freedom, and yet they also believe the legal framework that protects religious 

freedom in the United States does not apply to AI/AN philosophies in meaningful or adequate ways. 

The February 2011 publication America’s Great Outdoors: A Promise to Future Generations, which 

was jointly developed by USDA, the U.S. Department of the Interior (DOI), the U.S. Environmental 

Protection Agency, and the Council on Environmental Quality, notes:

“Our appreciation for these special places is rooted in the natural environment as well as in the rich 

diversity of people, stories, and traditions that have become associated with them over the course of our 

history. Since our earliest beginnings, the lands, coasts, rivers, forests, and mountains and the resources 

they hold have helped to define who we are as a people and as a nation. They have also been a source of 

America’s wealth, providing places to reflect, relax, recreate, and create lasting memories with friends 

and family.”

17

 

That statement is core to the American people and to the Forest Service. While most Americans live in 

urban areas, we are also dependent upon rural lands, particularly forest lands, for clean water and a 

healthy climate. To AI/AN people, “special places” are often sources of cultural, spiritual, sacrosanct 

connections to the land. For these reasons, conserving forests and grasslands is not a luxury; it is a 

necessity. Yet America's forests today are threatened like never before. Climate change, catastrophic 

fires, diseases and pests, and the transformation of working forest lands to increasingly fragmented 

private parcels have all led to declining ecosystem health. All of these changes have enormous impacts 

on ecosystems and local economies.18 As the health, integrity, and connectedness of forests are 

threatened, so too are AI/AN sacred sites.

The Forest Service is committed to restoring our forests and the vital resources important to our 

survival, while wisely respecting the need for a natural resource economy that creates jobs and vibrant 

rural communities.19 Respecting, honoring, accommodating, and protecting AI/AN sacred sites must be 

part of that commitment and be considered in the context of other uses. Economic and recreational 

drivers are important in land management decisionmaking, but not more or less important than sacred 

sites concerns. In the past, however, the Forest Service has not always thoroughly considered sacred 

sites concerns, balanced sacred sites concerns with other values or used its discretion in land 

management decisions to find creative ways of incorporating protections for sacred sites in its decisions. 

The Forest Service also must acknowledge that, in certain instances, its decision space is very limited, 

making it hard—perhaps impossible—to protect AI/AN sacred sites in the way the Tribes prefer in 

 

16 See, e.g., Brave Heart M.Y., DeBruyn L.M., “The American Indian Holocaust: Healing Historical Unresolved Grief.” 

American Indian and Alaska Native Mental Health Research: Journal of the National Center [1998, 8(2):56-78].

17 America’s Great Outdoors: A Promise to Future Generations, February 2011, p. 1. Available at 

http://americasgreatoutdoors.gov/report/, last viewed April 4, 2011. 

18 See generally, Smail, Robert A.; Lewis, David J. 2009. Forest-land conversion, ecosystem services, and economic issues 

for policy: a review. PNW-GTR-797. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest 

Research Station. 40 p. See also, remarks by Secretary Vilsack, August 14, 2009, Seattle, Washington. Available at 

http://www.fs.fed.us/video/tidwell/vilsack.pdf, last viewed April 4, 2011. 

19 Id.
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specific cases.20 Tribes and national forests are increasingly entering into agreements that establish a 

shared understanding of the agency-Tribal relationship. These agreements can improve 

communications, formalize a productive working relationship, and help the agency to honor its 

commitments to Tribes.21

AN INTERNATIONAL PERSPECTIVE

What we heard in the listening sessions and in Government-to-Government consultation reflects the 

shared aspirations of indigenous peoples worldwide, as expressed in the United Nations Declaration on 

the Rights of Indigenous Peoples (UNDRIP), for which the United States announced support in 2010.22 

The UNDRIP recognized the “urgent need to respect and promote the inherent rights of indigenous 

peoples which derive from their political, economic and social structures and from their cultures, 

spiritual traditions, histories and philosophies, especially their rights to their lands, territories and 

resources.” In listening sessions and other meetings we heard about how the UNDRIP’s concepts may 

relate to sacred sites, even though the UNDRIP does not use the phrase “sacred sites.” Notably, 

UNDRIP’s Article 12 declares the right of indigenous peoples to manifest, practice, develop, and teach 

their spiritual and religious traditions, customs, and ceremonies; to maintain, protect, and have access in 

privacy to their religious and cultural sites; to the use and control of their ceremonial objects; and to the 

repatriation of their human remains.23 The U.S. support for the UNDRIP serves as an affirmation of 

our national and global aspirations, which provides important context for review of our policies. 

ACCOMMODATING COMMON GROUND

The Forest Service shares nearly 3,000 miles of contiguous border with AI/AN-owned lands and 

acknowledges that many lands now within the NFS are the ancestral homelands and ceded territories of 

many Tribes. This makes the agency and Tribes more than just neighbors; they are partners with 

common goals for social, cultural, ecological, and economic sustainability. Many Tribes have 

historically managed their own forests well and in ways the Forest Service hopes to emulate. Tribal land 

management is a testament to the Tribal land ethic, an ethic rooted in traditions, stories, and cultures. 

Sacred sites, both on AI/AN land and within the national forests, are important facets of that land ethic 

and a common bond between us.

The Forest Service acknowledges there are conflicts over AI/AN sacred sites both inside and outside the 

agency. Many examples of these conflicts are described in appendices D, E, and J. However, the agency 

also recognizes that many sacred sites on NFS land are being appropriately protected and that many 

relationships between Tribes and national forests are constructive and productive. It is only through 

positive relationships that the Forest Service can work together with Tribes to meet the goals they have 

in common. Many Forest Service employees realize that protection of sacred sites and ensuring 

 

20 For instance, “An Act to Promote the Development of Mining Resources of the United States, May 10, 1872,” better 

known as the“1872 Mining Law,” provides little discretion for land managers to deny a permit for mineral exploration. 

21 See http://www.fs.fed.us/spf/tribalrelations/agreements/index.shtml for example agreements of this nature. 

22 For further explanation of the United States’ position on the declaration and many initiatives in Indian country, see 

Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples --

Initiatives to Promote the Government to Government Relationship & Improve the Lives of Indigenous Peoples, which was 

released to accompany the President’s statement in support of the declaration, at 

http://www.state.gov/documents/organization/153223.pdf. 

23 United Nations Declaration on the Rights of Indigenous Peoples, Article 12 (2007). Available at 

http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. See also the Synthesis of the Legal Landscape section

below, and appendix G, “Existing Authorities.”
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 11

improved access to those sites is congruent with the Forest Service mission. We heard from Forest 

Service employees, including many line officers—regional foresters, forest supervisors, and district 

rangers who are the on-the-ground decisionmakers for the agency—that they take seriously the charge to 

enhance protection of sacred sites. They are looking for ways to accommodate the needs of AI/AN 

people who use these sites, and, in many cases, are finding ways to do so. Their efforts are enhanced by 

legislation in the Food, Conservation, and Energy Act of 2008 (see appendix C, 2008 Farm Bill)

24

providing for reburial of repatriated human remains on NFS lands, for keeping culturally sensitive 

information confidential, and for temporarily closing portions of NFS lands for Tribal traditional and 

cultural practices. Their efforts are further strengthened by the high level of visibility the current review 

has engendered. They recognize top-level support from the agency, the Department, and the President. 

The challenge is striking a balance among existing laws and policies, including the Forest Service’s 

multiple use mandate; the public’s needs and desires; and the need to protect sacred sites, manage for 

sacred places, and provide for Tribal traditional and cultural practices. The protection of sacred sites 

must be a value we will strive to protect; it cannot be an afterthought or be less than our other values. 

When sacred sites protection is in conflict with other uses, Forest Service employees must be mindful 

and creative in reaching for balance. Balancing must necessarily involve creative approaches and must 

be done within the context of our existing authorities. There are boundaries to our existing authorities, 

but where those authorities can co-exist with sacred sites, Forest Service employees should give due 

consideration to accommodating and mitigating for the protection of sacred sites. 

 

24 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, Title VIII, Forestry, Subtitle B, Cultural and Heritage 

Cooperation Authority, §§8101-8107..
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 12

METHODOLOGY

GATHERING INFORMATION

The Forest Service and Tribal communities have interacted for many years on sacred sites issues. The 

current review builds upon this foundation by incorporating information from many different sources: 

Listening sessions. The listening sessions were conducted from November 2010 to April 2011 and 

provided the core information used to develop the Draft Report released in July 2011. The sessions 

included national telephonic listening sessions, regional and local level in-person meetings, and portions 

of national and regional meetings of inter-Tribal organizations and other types of AI/AN groups. 

Participants included FRT leaders, ANCs, State recognized Tribes, elders, traditional practitioners, 

culture keepers, AI/AN individuals not affiliated with any specific Tribe, and others. Several Tribes 

requested Government-to-Government consultation on sacred sites issues at this early stage, and these 

requests were honored. The sessions focused on five key questions addressing:

 Past and current experience interacting with the Forest Service regarding protection, care, and 

preservation of sacred sites;

 Whether existing laws, regulations, policies, and procedures have been effective in protecting 

sacred sites;

 Changes needed to enhance protection of sacred sites;

 How consultation should proceed on the Draft Report to the Secretary of Agriculture; and 

 Any other issues regarding sacred sites. 

For more information regarding how the information was collected, tracked, and summarized, see 

appendix D for a table of listening session locations and a description of the themes heard at the 

listening sessions, with examples.

Forest Service employee survey and interviews. To assess Forest Service personnel’s experience and 

knowledge around sacred sites, the Executive Team conducted a survey of employees, asking them to 

describe their challenges, successes, tools, needs, and recommendations for working with Tribes to 

protect sacred sites. After the Draft Report was distributed, the team conducting the review interviewed 

a cross-section of employees who were familiar with it in order to obtain their feedback on the 

recommendations and other content of the Draft Report. See appendix E.

Analysis of current law, regulations, and policies. To ascertain the current legal and policy landscape 

surrounding Forest Service’s ability to protect sacred sites, the team conducted a review of current laws, 

regulations, policies, procedures, and relevant case law. See the Synthesis of the Legal Landscape

section below, and appendix F, Selected Court Decisions, and appendix G, Existing Authorities.

Previous review. The review used information from a preliminary factfinding effort regarding agency 

sacred sites policies that took place from 2003 to 2007. Information from the earlier effort is integrated 

into the current review; it is consistent with what was heard during the recent listening sessions. See 

appendix H.

Mailed and emailed comments. Interested people sent a number of emails, either in connection with a 

particular listening session or other in-person event, or independent of any particular session, to a 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 13

designated email address. Some comments were mailed to Washington Office or regional staff in 

connection with this effort, and these were also incorporated into the review. 

Review of Draft Report: AI/AN People. From July to November 2011, USDA and the Forest Service 

offered FRTs and ANCs the opportunity to consult with the Government on the Draft Report and its 

recommendations. The Forest Service participated in over 50 face-to-face meetings to review the Draft

Report. Some of these were in person consultation sessions that were conducted between Forest Service 

and FRT representatives and/or ANCs who mutually agreed to participate in this manner. Other inperson meetings were collaborative discussions between Forest Service representatives and those FRT 

representatives who chose not to conduct Government-to-Government consultation but did choose to 

comment in person as an individual or representative of a Tribe. Some meetings included Nonfederally 

Recognized Tribal (NFRT) representatives who participated in in-person collaborative discussions and, 

in some cases, as guests at consultations due to local circumstances (for example, in California due to 

affiliations with FRTs or State recognition). Finally, email, mail, and telephone call comments were 

received from FRTs, AI/AN groups, and NFRTs. These commenters and consulting Tribes have been 

identified in appendix J, which summarizes all comments on the Draft Report.

Review of Draft Report: Public Comments. On August 5, 2011, the Forest Service published a notice in 

the Federal Register of the availability of the Draft Report, which opened a 60-day public comment 

period. Fewer than 50 public comments were received by mail and email in response to the notice. 

Some of these comments that focused on the Draft Report were from groups representing a number of 

businesses or a particular industry. Other commenters did not comment on the Draft Report but raised 

issues specific to a particular site or Tribe(s). See summary of comment themes in appendix J. 

PERSONNEL CONTRIBUTING TO THIS EFFORT

A team of senior executives from USDA and the Forest Service led the development of this report. The

executives are Janie Hipp, Senior Advisor to the Secretary of Agriculture for Tribal Affairs (member of 

the Chickasaw Tribe25); Joel Holtrop,26 Deputy Chief for the NFS (now retired); Faye Krueger, 

Associate Deputy Chief for the NFS (now Regional Forester for the Northern Region); James Hubbard, 

Deputy Chief for State and Private Forestry (S&PF); and Corbin Newman, Regional Forester for the 

Southwest Region. The Executive Team was supported by a small Core Team including staff from the 

USDA OTR and from the Forest Service at the national, regional, and forest levels. The core team 

compiled public and consultation comments, developed and modified recommendations, and drafted the 

report. Team members are listed below:

Tracy Calizon, Program Specialist, Ecosystem Management Coordination, Washington DC 

Fred Clark, Director, USDA Forest Service Office of Tribal Relations, Washington, DC 

(member of the Citizen Potawatomi Nation Tribe)

Kendall Clark, Forest Supervisor, Carson National Forest, Taos, NM (now retired)

 

25 Members of the Executive or Core Teams participating in the development of this Final Report are participating in their 

capacities as USDA and Forest Service employees, and are not representing the interests of the particular Tribes in which 

they are enrolled members. 

26 Joel Holtrop retired from the Forest Service on October 3, 2011. After his retirement, Faye Krueger joined the team as lead 

executive for NFS. 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 14

Larry Heady, Special Assistant to the Regional Forester on Indian Affairs, Milwaukee, WI

(member of the Lenape-Delaware Tribe)

Michael Kaczor, National Federal Preservation Officer and Heritage Program Leader, 

Washington, DC 

Steve Kessler, Regional Subsistence Program Leader, Anchorage, AK

Will Reed, Regional Heritage Program Leader, Ogden, UT 

Toni Stanger, Program Specialist, USDA Office of Tribal Relations, Albuquerque, NM (member 

of the Colville Tribe)

Many other Forest Service line officers and staff in the field conducted outreach and coordinated with 

Tribes to set up and attend listening sessions and consultation events, and documented what was heard. 

The Udall Institute for Environmental Conflict Resolution (USIECR) (under the Udall Foundation, an 

independent Federal agency), as well as Triangle Associates, Inc., (Triangle) assisted with process 

design, served as neutral third-party facilitators, and compiled, analyzed, and summarized what was 

heard. 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 15

ACKNOWLEDGEMENTS AND RECOMMENDATIONS

At the request of the Secretary, we listened intently to the voices of Native America across the United 

States. We heard about the values, experiences, feelings, beliefs, and expectations people have about the 

places they hold sacred. We also heard many excellent suggestions about how the agency can do a 

better job of protecting those places. The thousands of individual comments were profound and 

meaningful. Some public groups commented that the Forest Service must maintain public access to 

Federal lands as the agency strives to protect sacred sites, and we recognize that many concerns remain 

from both Tribes and the public. In appendix J, we offer a side-by-side presentation of the overarching 

themes we heard from FRTs and ANCs, other AI/AN groups, and the public. Those comments and 

themes reflect a variety of issues regarding processes, content, and relationships in the context of rights, 

partnership opportunities, and administrative flexibility and consistency. They also lead us to 

recommendations for actions that we believe will have the greatest impact in protecting sacred sites. 

Before describing our recommended actions, we first recognize some of the concerns we heard. These 

acknowledgements are intended as a step toward fostering better relationships that improve protection of 

sacred sites in the future.

ACKNOWLEDGEMENTS

We recognize that activities authorized by the Forest Service and other agencies affect sacred sites in 

ways many AI/AN people consider damaging. While we acknowledge the complexity of balancing the 

pursuit of goods and services from the national forests for all Americans with Tribal concerns, we 

encourage dialogue about addressing past actions to build trust between Tribal leadership and the Forest 

Service, with an eye to the future. We acknowledge the frustration of multiple and overlapping 

requirements from different land management agencies and agree that consistency among Federal 

agencies whose decisions impact sacred sites is important. We intend to share what we have learned 

with other agencies, as well as work with Tribes and other agencies to develop a more consistent Federal 

approach to sacred sites.

We heard many concerns about the impacts to AI/AN peoples’ use of and access to sacred sites 

stemming from the agency’s authorization of recreational activities, including rock climbing, 

interpretation, outfitting and guiding, and off-highway vehicle use. Specifically, we heard numerous 

concerns with the Forest Service’s decision to allow the use of reclaimed wastewater for creating 

artificial snow at the Arizona Snowbowl Ski Area in the San Francisco Peaks from many who strongly 

urged the agency to reverse this decision. Many public commenters commented only on Snowbowl; 

many of these commenters requested that the agency reverse the decision. Others suggested the Draft 

Report mischaracterized the Snowbowl decision and failed to acknowledge the economic benefits that 

will flow from the decision. We recognize that this decision has had profound impacts on the agency’s 

relationships with many AI/AN people and communities, but we hope this review and the changes that 

will result from it will begin to address some of the concerns we heard. We understand that the dialogue 

this review has generated is merely a beginning, and that better, more consistent, and more meaningful 

consultation, communication, and understanding between the agency and AI/AN people will be 

necessary if we are to avoid similar circumstances in the future. The Forest Service will strive to 

achieve these ideals while meeting its statutory mandates. 

We heard from AI/AN commenters that economic values often hold greater weight in agency 

decisionmaking than traditional and cultural values. These commenters stated that competing extractive 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 16

and recreational interests were usually given greater consideration than sacred sites. Some Forest 

Service employees stated they had no way of “valuing” sacred sites in the current agency analysis and 

decisionmaking framework. We believe the agency can do a better job of integrating sacred sites into its 

multiple-use mission, and that the Forest Service mission is broad enough to include sacred sites 

protection. 

The need for better relationships and communication between the agency and AI/AN people was 

unquestionably the most common issue raised by AI/AN commenters, and this concern was echoed by 

Forest Service employees who were surveyed. We acknowledge that continuity of leadership is often 

lacking due to frequent turnover of Forest Service line officers, as well as Tribal leaders. This turnover 

can present challenges to establishing and maintaining relationships between the Forest Service and 

Tribes. The development and maintenance of written agreements between Tribes and agencies can help 

to bridge these transitions while new leaders build personal relationships. However, the Forest Service 

needs to ensure that our line officers have sufficient time to participate in transition briefings and review 

existing agreements to gain an understanding of their content, spirit and intent. Written agreements and 

memorandums of understanding (MOUs) are among the best ways to establish stable, consistent 

understanding and provide a foundation for relationships between Tribes and the agency. Agreements 

can establish estimated timeframes, schedules for regular communication, methods of communication, 

and processes for protection of sacred sites. An example proposed as a model for regular 

communication between agency employees and Tribes was the annual “To Bridge a Gap” conference.27 

This report recommends seeking increased AI/AN representation on advisory committees, including 

resource advisory committees, and establishing a schedule for regular consultation meetings at the forest 

level to improve relationships and enhance communication. 

“Co-management” is not well defined and means different things to different people. We heard many 

AI/AN commenters express interest in development of co-management strategies with Tribes or entering 

into formal “co-management agreements” for the protection of sacred sites. We heard that some 

consider “co-management” as equal decisionmaking authority; others think of it as any direct 

involvement in a project. In their comments on the Draft Report, some AI/AN groups advocated for 

legislation to authorize a greater degree of co-management between the Forest Service and Tribes than is 

allowed under current authorities. Other Tribes indicated they supported increased and better use of 

mutually beneficial agreements to support shared management goals. Some public groups expressed 

great concern regarding the idea of co-management, characterizing it as a “de-facto veto power” the 

Tribes would hold over public lands. While the Forest Service cannot divest itself of inherently Federal 

decisionmaking authority, the agency does have broad authority to engage in partnerships and other 

mutually beneficial agreements, as funding allows, that enable the agency and Tribes to achieve shared 

management goals. We believe that a case-by-case approach to crafting partnership agreements to meet 

shared objectives is appropriate for the protection of sacred sites. The type of instrument used to 

memorialize such an agreement depends on the specific resources, sites, Tribes, and the forests involved, 

but the agency has statutory authority to enter into many different types of agreements with Tribes and 

other entities, including challenge cost-share agreements, Wyden agreements, participating agreements, 

MOUs, and stewardship agreements pursuant to the Tribal Forest Protection Act. 28 (See figure 2 for 

more information on these types of agreements.) Tribes entering into agreements such as these with the 

 

27 For information on “To Bridge a Gap” see http://www.choctawnationculture.com/TBAG2012. 

28 See, for example, http://www.partnershipresourcecenter.org, produced in partnership with the National Forest Foundation, 

the Forest Service, and the USDA, last visited January 17, 2012.
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 17

Forest Service can help implement management actions that are desirable to Tribal partners, without 

compromising agency statutory obligations or unlawfully delegating Federal authority. What “comanagement” means in a particular agreement should be determined by the parties to the agreement.

FIGURE 2: Some types of agreements available under existing authorities

Memorandum of Understanding: To document a framework for cooperation between the Forest 

Service and other parties for carrying out their separate activities in a coordinated and mutually 

beneficial manner.

Participating Agreement (Cooperative Funds & Deposits Act of December 12, 1975, Public 

Law 94-148): Authorizes the Forest Service to enter into agreements to cooperatively perform 

mutually beneficial projects with public and private agencies, organizations, institutions, or persons, 

for the following purposes: pollution abatement; cooperative manpower, job training, and 

development programs; development of publication of cooperative environmental education and 

forest history materials; or forestry protection.

Participating Agreement (Wyden Amendment, Section 323 of the Department of the Interior 

and Related Agencies Appropriations Act, 1999, Public Law 105-277, Div. A, Section 101 (e), as 

amended by Public Law 107-63, Sec. 330; and by Public Law 111-11, Sec. 3001): Authorizes the 

Forest Service to enter into mutual benefit agreements with willing Federal, tribal, State, and local 

governments; private and nonprofit entities; and landowners for the protection, restoration, and 

enhancement of fish and wildlife habitat, and other resources on public or private land that benefit 

those resources within the watershed. 

Challenge Cost-Share Agreement (Interior and Related Appropriations Act of 1992, (Public 

Law 102-154): Authorizes the Forest Service to cooperate with other parties to develop, plan, and 

implement projects that are mutually beneficial to the parties and that enhance Forest Service 

activities. Cooperators may be public and private agencies, organizations, institutions, and/or 

individuals.

Joint Venture Agreements (National Agricultural Research, Extension and Teaching Act of 

1977 as amended by the Food Security Act of 1985 (7 U.S.C. 3152, 3318, and 3319, Public Law

99-198): Authorizes the Forest Service to enter into joint venture agreements with any entity for 

agricultural, research, extension, and teaching activities.

Cost Reimbursable Agreements (National Agricultural Research, Extension and Teaching Act 

of 1977 as amended by the Food Security Act of 1985 (7 U.S.C. 3152, 3318, and 3319, Public 

Law 99-198): Authorizes agreements with any State cooperative institutions or educational 

institution for acquisition of goods or services, without competition, for agricultural research, 

extension, or teaching activities.

Stewardship Authority, Public Law 108-7 Sec. 323 (2003): Until 2013, authorizes the Forest 

Service, via contract or agreement, to enter into stewardship projects with private or public entities to 

perform services to achieve land management goals for the national forests or public lands that meet 

local and rural community needs. See also the Tribal Forest Protection Act.

VISIT http://www.partnershipresourcecenter.org; SEE “Training Modules” under 

“Developing Strong Partnerships.”
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 18

We heard a range of views from both AI/AN and the public generally about the authority the agency has 

to protect sacred sites. There is no statute mandating protection of sacred sites in all instances, but the 

Forest Service has considerable authority that supports protection and discretion to protect sacred sites 

within the current legal framework. See “Synthesis of the Legal Landscape,” following the 

recommendations below. The agency’s legal decision space includes opportunities for protection of 

sacred sites, although the Forest Service does not always use this discretion to act in ways that protect 

sacred sites. This decision space can and should be used by the Forest Service in a manner more 

protective of sacred sites. We believe our exercise of discretion to act in a positive way toward sacred

sites will further the intent of existing legal and policy responsibilities. 

Increased use of the agency’s discretion to protect sacred sites must begin with an understanding of how 

management of NFS lands would affect those sacred sites. We heard from AI/AN commenters, as well 

as from Forest Service employees, that E.O. 13007’s definition of sacred sites is too limiting, too 

focused on religion, and does not accurately represent all that AI/AN people consider sacred. To enrich 

the agency’s understanding and provide an opportunity for broader dialogue with Tribes about what is 

sacred to them, we encourage discussion around the concept of “sacred places” as described in figure 3. 

This language was developed based on what we heard 

in the listening sessions, consultations, and from public 

comment; we hope it captures more accurately the 

scope and variety of sacred areas, places, sites, 

landscapes, and biological communities on NFS lands. 

The Forest Service does not intend for the concept of 

sacred places to replace sacred sites in E.O. 13007, nor 

does the agency intend “sacred places” to receive the 

same type of scrutiny as sacred sites, as it recognizes 

that sacred sites are limited to discrete, specific 

locations, while a sacred place might be a larger scale 

geographic feature. The intent of including this

language here is to inspire Forest Service line officers 

to walk the land together with AI/AN people to learn 

more about their sacred places and to focus on that 

knowledge when making land management decisions. 

This report recommends that the Forest Service use this 

more expansive concept of “sacred places” in 

discussions with Tribes and with other key Federal

agencies to reach a better, more consistent 

understanding of what is sacred to Tribes and of the 

tools available to protect these places. Additionally, 

the report recommends emphasizing sacred places in training and exploring ways to incorporate the 

concept of sacred places into the Forest Service’s decisionmaking processes. See recommendations 

II.A.1-3 and II.E.2. Generally, a sacred place may not necessarily include an area of exclusive use or 

dedication of an exact location.. Forest Service officials would consider the significance and use of 

sacred places in land management planning and in project decisionmaking, and uses of sacred places 

would be subject to valid existing rights and potential multiple uses. 

The Draft Report included the following recommendation: “Work to revise the E.O. definition of 

‘sacred sites’ with other Departments and the White House in consultation with Tribes.” We have 

determined there needs to be further discussion between the Forest Service, the White House and other 

Figure 3: Sacred Places

Any specific location on National Forest 

System land, whether site, feature, or 

landscape, that is identified by an Indian 

tribe, or the religious societies, groups, 

clans, or practitioners of an Indian tribe, 

as having historically important 

spiritual and cultural significance to that 

entity, greater than the surrounding area 

itself. Sacred places may include but are 

not limited to geological features, bodies 

of water, burial places, traditional 

cultural places, biological communities, 

stone and earth structures, and cultural 

landscapes uniquely connecting 

historically important cultural sites, or 

features in any manner meaningful to

the identifying tribe.
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 19

federal departments and agencies concerning the scope of EO 13007. However, the agency does 

recognize that what is sacred to Tribes does not always neatly fit within E.O. 13007’s definition of 

sacred sites. The Forest Service and USDA will work diligently with Tribes and other agencies and 

Departments who also must follow E.O. 13007, NHPA, and other authorities, to first better understand 

what is sacred to Tribes, whether or not it is explicitly stated in E.O. 13007. Two major objectives of 

this dialogue, which are recommended in this Final Report, should be the development of a common 

language to reflect this broader understanding of what is sacred, and training to help agency employees 

effect protections and accommodate Tribal use on the ground and to help agency employees and Tribes 

understand the authorities and limitations under current law. 

Tribes and AI/AN individuals have experienced a lack of access to sacred sites for practitioners, elders, 

and other AI/AN people who need it. In other cases, open access for the general public and even Native

people has resulted in vandalism, theft, and exploitation of sacred sites. We heard, and recognize that 

the permitting process for certain types of gatherings and access can be lengthy and cumbersome and 

can be seen as a barrier. We believe that the agency’s newer authorities will help protect sacred sites

from misuse and provide appropriate access, especially those authorities relating to closures to protect 

the privacy of tribal activities for traditional and cultural purposes, Tribal use of forest products for 

traditional and cultural purposes, and confidentiality of information regarding sacred sites. See 

appendix C, 2008 Farm Bill provisions. 

We heard both concerns and support for the agency’s working with NFRTs on access to and protection 

of sacred sites. Non-federally recognized tribes (NFRTs) are not included in Federal policies for 

Government-to-Government consultation. Therefore, many NFRTs with ancestral ties to federally

managed lands are not engaged prior to project development, permit consideration, and policy decisions. 

As a result, their ability to exercise traditional and cultural practices may be compromised. In contrast, 

some NFRTs have no valid association with federally managed lands, except as members of the general 

public. There is no specific policy in this area or consistent approach. Some Forest Service units are 

inclusive, recognizing, for example, that many Tribes were stripped of their Federal recognition during 

the “termination era” of the 1950s. Other units deal exclusively with FRTs in the Tribal relations 

context. Local line officers should exercise their well-informed, professional judgment in including 

NFRTs in decisionmaking; nothing in this document is intended to dissuade or discourage forests from 

engaging in dialogue with NFRTs. However, the agency’s trust responsibility to Tribes, its obligation to 

engage in consultation with Tribes, and its delivery of programmatic benefits to Tribes are restricted to 

FRTs.

Many AI/AN commenters expressed concerns about Tribal ownership and related issues, including 

rights to hunt, gather, fish, and otherwise use NFS lands. We recognize concepts of “ownership” may 

include treaty and other reserved rights and acknowledge the need for resolution of Native land claims in 

some areas. A thorough exploration of AI/AN land ownership and interest as it applies to the NFS is 

beyond the scope of this effort, but we recognize that some disputes by and among AI/AN Tribes, 

individuals, clans, corporations, and others remain.

Protection of sacred sites is not possible without the ability to protect confidential information regarding 

these sites. We acknowledge that information has been released inadvertently in the past. We recognize 
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the 2008 Farm Bill29 presents the Forest Service with increased authority to exempt certain types of 

culturally sensitive information from disclosure under the Freedom of Information Act. We also heard 

that the language in the 2008 Farm Bill on confidentiality can be difficult to understand, and that the 

Forest Service has not issued any regulations or directives to implement or explain the provisions on 

confidentiality of information pertaining to sacred sites in the 2008 Farm Bill. Additional guidance 

issued by the agency would clarify for Tribes and agency employees the types of information that must, 

may, and cannot be protected from disclosure under FOIA, and how the information must be provided. 

We also acknowledge Tribal members’ concerns about the Forest Service providing information to State 

Historic Preservation Officers (SHPOs), which is required under the NHPA. In the course of NHPArequired consultation with SHPOs, and other consulting parties, the Forest Service can limit the types of 

information provided to SHPOs. The NHPA requirement that the agency provide information regarding 

the nature and location of cultural resources potentially affected by a proposed agency action is essential 

to the consultation process, but we can make determinations of significance without revealing the full 

scope of Tribal concerns about a resource. What is discussed with SHPOs should be a subject for 

consultation with Tribes before engaging SHPOs. We endeavor to honor Tribes’ expectations for 

confidentiality by pledging to work with FRT to develop procedures for maintaining the confidentiality 

of information the Tribes provide to the Forest Service about sacred sites. 

We heard and recognize that Traditional Ecological Knowledge (TEK), and the traditional cultural 

practices associated with TEK represents a body of knowledge that transcends Western science for many 

AI/AN people. For traditional leaders and practitioners, TEK and associated cultural practices are at the 

core of their world view. The lessons learned by generations of people living on the land are lessons 

that may enhance peer-reviewed and academic sciences.30 Through the lens of TEK, we can see that 

sacred sites may include landscapes and biological communities. We intend that agency planning 

processes, such as land management and travel management planning, will consider TEK along with the 

many sources of scientific and technical information that feed the planning process.

We heard many requests from AI/AN commenters for the agency to coordinate its activities within the 

Department and with other Federal land management agencies. This review focuses on lands and 

policies impacting the NFS, but the Forest Service also conducts scientific research through its Research 

and Development (R&D) deputy area, and administers numerous assistance and conservation programs 

supporting other forest landowners through its S&PF deputy area. In addition to partnerships between 

NFS land managers and Tribes, there may be opportunities to leverage other Forest Service programs to 

protect or accommodate access to sacred sites. In addition, other USDA agencies conduct research and 

development activities and administer assistance programs that could influence the protection of sacred 

sites on lands managed by other Federal agencies. For these reasons, this report should be widely shared 

within the Department, as well as broadly throughout the Federal Government. 

In comments on the Draft Report, Tribes and others reiterated that traditional places of sacred, religious, 

or cultural importance to communities may also be afforded some protection under the provisions of the 

NHPA. The NHPA requires Federal agencies to consult with any Indian tribe that attaches religious 

and cultural significance to historic properties that may be affected by a federal undertaking and take 

 

29 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, Title VIII, Forestry, Subtitle B, Cultural and Heritage 

Cooperation Authority, Sections 8101-8107. (June 18, 2008).

30 See, e.g., “Traditional Ecological Knowledge: Application by Service Scientists” U.S. Fish and Wildlife Service Fact 

Sheet, available at http://www.fws.gov/nativeamerican/graphics/TEK_Fact_Sheet.pdf, last visited September 24, 2012.
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 21

those potential effects into account in their decision making, This consultation should occur at the 

earliest steps in general land management or project planning and may include consultation with Tribes 

concerning inventory methods, management prescriptions, proposed land uses, and impacts from both 

human and natural effects. It is at these early stages that Tribes may wish to raise sacred sites concerns. 

We heard examples of how NHPA can be an effective means to address potential effects and put in 

place lasting protections when the sacred sites are historic. The NHPA regulatory framework 

establishes several points for required consultations in the process of considering effects. The NHPA 

process for considering effects in any given project, however, does not guarantee that sites will be 

protected in the manner Tribes might prefer, nor that particular adverse effects will be prevented in 

perpetuity. For more information, see the Synthesis of the Legal Landscape section below, Figures 7 

and 8, and Table 1.

Conversely, we also heard that sacred sites issues are seldom about archaeology and historic 

preservation. We acknowledge that while many archeologists are more comfortable working with 

material evidence in the form of historical documentation or archeological data, there are some Tribal

members who would prefer to define sacred sites without reference to history. It is clear, however, that 

many sacred sites have a historic component, and preservation of sacred sites can sometimes be 

accomplished through historic preservation guidelines. In this preservation effort, heritage professionals 

and Tribes are often working toward the same goals. Heritage professionals need to recognize that 

Tribal traditional and cultural practices associated with sacred sites contribute to their historic 

significance, and heritage professionals need to enable continued use of sacred sites by those who 

consider them sacred. Archeologists and AI/AN peoples may emphasize different aspects of 

“significance” for particular sites, but these aspects are not necessarily in opposition. The sacredness 

ascribed to a site by Tribal representatives should be understood as adding additional significance to a 

historic site.

Many AI/AN commenters noted, and we acknowledge, that land management decisions relating to 

mining and energy development often degrade and desecrate sacred sites. Some public groups 

expressed that restrictions on mining and energy projects to increase protections for sacred sites will 

adversely affect the local and national economies, and will threaten the energy security of the country, 

among other concerns. Decisions regarding mining and energy development are often not under the 

exclusive control of the Forest Service. The agency often must work with other agencies and 

departments regarding decisionmaking on mining and energy projects. The Forest Service does not 

have the authority to alter the 1872 Mining Law. We removed the reference seeking legislative changes 

from the recommendations that had been included in the Draft Report. We recognize that the Forest 

Service can do a better job of regulating surface uses and imposing mandatory conditions for 

hydropower relicensing pursuant to section 4(e) of the Federal Power Act (FPA 4(e))31 to protect sacred 

sites. 

We heard that the Forest Service does not have enough law enforcement officers (LEOs) to adequately 

enforce laws that protect sacred sites from disturbance and desecration. We recognize that the priorities 

of the Law Enforcement and Investigations staff of the Forest Service do not always conform to Tribal

priorities. We heard from some commenters that some Forest Service LEOs have acted in ways that 

may seem intimidating to elders, traditional practitioners, and other indigenous users of sacred sites and 

traditional gathering areas. Many LEOs do work with Tribes to protect AI/AN sacred sites. However, 

 

31 Federal Power Act, 16 U.S.C. 797(e) (1994).
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 22

some commenters stated Forest Service LEOs could sometimes do a better job of coordinating with 

State, local, and Tribal law enforcement agencies. Self-regulation agreements32 and the use of DOIUSDA cross-deputation authorities expand capacity and can promote greater protection of trust 

resources and sacred sites. Law enforcement personnel from the Forest Service working closely with 

their Tribal counterparts can mitigate some of the unintended effects of law enforcement activity on 

Tribal communities. 

E.O. 13007 instructs agencies such as the Forest Service to “accommodate access to and ceremonial use

of Indian Sacred Sites,” yet we heard many concerns related to accessing sacred sites, particularly within 

congressionally designated wilderness. The Wilderness Act of 1964 is clear: The Forest Service cannot 

allow motor vehicle use in wilderness unless the designating legislation contains an exception allowing 

that use or another statute authorizes that use.

33

 

We heard this restriction has sometimes 

created an access challenge for elders, hunting 

and gathering needs, and other purposes within 

congressionally designated wilderness. We 

can work to facilitate access for traditional 

users and elders where appropriate, to the 

extent permitted by law.

34

Activities associated with wildfire—before, 

during, and after—may affect sacred sites and 

were another area noted for action. We heard, 

and we recognize, there have been 

communication breakdowns related to sacred 

sites between heritage staff, fire incident 

commanders, and line officers. We believe 

better communication and improved planning 

before a fire will lead to actions taken during a 

fire that are more consistent with Tribes’ 

desired level of protection for their sacred 

sites. This approach proved successful in 

protecting sacred sites and cultural values 

during the Los Conchas, Wallow, and other 

fires in 2011. See figure 4: Emergency 

Cultural Resource and Sacred Site Protection. 

Increased collaboration with Tribal fire crews 

will also help in this regard.

 

32 Self-Regulation Agreements: MOUs that help clarify the extent to which a tribe may exercise its civil enforcement 

jurisdiction over its own members while engaged in certain activities on the NFS.

33 There are certain extremely limited exceptions; for example, for rescue operations in wilderness.

34 Under the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) (43 U.S.C. 1636 et seq.), Alaska 

Wilderness is exempted from many of the prohibitions of the Wilderness Act, including, in some circumstances, the 

prohibition on motorized access. For example, ANILCA allows “...appropriate use for subsistence purposes of 

snowmobiles, motorboats, and other means of surface transportation traditionally employed for such purposes by local 

residents, subject to reasonable regulation.” 16 U.S.C. §3121.

Figure 4: Emergency Cultural Resource and 

Sacred Site Protection 

During the 2011 fires in Arizona and New 

Mexico, Forest Service heritage specialists were 

effective in protecting historic properties of 

cultural and religious importance to Tribes. Their 

efforts were recognized by the Society for 

American Archaeology (SAA) in a letter to the 

National Interagency Fire Center Governing 

Board on July 21, 2011: 

“It is clear that archaeologists assigned to fire 

teams and consultations with Native American 

communities have helped preserve 

archaeological sites and sacred sites threatened 

by fire and fire suppression. Deploying 

archaeologists on handlines and firelines to 

identify sites before damage occurs, to mitigate 

damage to impacted sites, and to advise on 

watershed rehabilitation is excellent 

management. Using team archaeologists to 

prepare initial site assessments on the damage 

caused by the fire and to submit 

recommendations for emergency treatments helps 

protect and perpetuate sacred sites, 

archaeological sites, and their attendant values 

to communities of Native Americans, land 

managers, and scientists.”

-William F. Limp, President, SAA
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 23

We heard and acknowledge there are actions the Forest Service can take related to its workforce to 

position agency employees to support and implement the recommendations in this Final Report. In 

reviewing the Draft Report, AI/AN people resoundingly commented that the Forest Service should 

develop, or make better use of, existing training on a variety of subjects, including cultural competency, 

Tribal law, law enforcement, and consultation. This sentiment was echoed by Forest Service personnel, 

whether they regularly worked with Tribes or not. AI/AN people also requested that the agency 

establish clear and transparent mechanisms for holding appropriate employees accountable for 

protection of sacred sites. AI/AN comments on the Draft Report were also very supportive of agency 

efforts to recruit and hire indigenous people, although these commenters cautioned that having Native

people on agency staff is not a substitute for Government-to-Government consultation. 

We heard from AI/AN commenters that increased and dedicated funding will be needed to protect 

sacred sites adequately. We intend for this review of sacred sites policies to reflect the agency’s 

increased focus on its trust responsibilities, treaty obligations, and consultation with Tribes. However, 

the Forest Service recognizes current funding and the number of full-time personnel assigned only to 

Tribal responsibilities may fall short of the expectations of Tribes. While most Forest Service regions 

have some staff to work with Tribes, not all forests have full-time staff dedicated to this work. Usually, 

the work the Forest Service does with Tribes is project-specific and is funded as such, rather than Tribal

relations program activities having a dedicated budget. The work, though important, is one of many 

competing interests for funding. In addition, the Forest Service currently has limited leadership 

expertise in core competencies regarding Tribal relations. The recommendations in this report, if 

implemented, will help to address this issue. The agency recognizes that it can do a better job of 

honoring its commitments to Tribes and protecting sacred sites, even at current levels of funding and 

staff. 
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 24

RECOMMENDATIONS

We heard many concerns, a number of compliments, and some excellent suggestions for improvement 

from AI/AN people, the public, and from Forest Service employees. The review of the current legal 

environment, the compilation of listening sessions with AI/AN people and consultation with FRTs, 

public comment, the Forest Service employee survey, and other sources also guided the development of 

the recommendations below. This section recommends actions that we believe will result in the most 

significant improvements in the protection of sacred sites. These actions were chosen because they will 

educate and empower line officers, managers, and staff to do a better job of protecting sacred sites in a 

way that is more acceptable to Tribes. The recommendations also provide increased accountability for 

Forest Service employees in carrying out their duties with respect to sacred sites.

These recommendations seek to strike a balance between providing sufficient guidance for purposes of 

achieving consistency and predictability in protection of sacred sites and encouraging the tailoring of 

local approaches to protection and consultation. We recognize that a “one-size-fits-all” approach to 

protecting sacred sites and accommodating AI/AN use of those sites will not work. The 

recommendations are written broadly to allow space for local adaptation and creativity. In carrying out 

the recommendations, the Forest Service will strive to understand and value the preferences of Tribal

governments and respect each Tribe’s relationship with the national forests. 

Recommendations are loosely grouped into three main categories: Relationships/Communication, 

Direction/Policy, and On-the-Ground Actions, to address overarching themes we heard. 

Recommendations involving changes to agency directives or regulations may require additional public 

input to comply with the Administrative Procedure Act, Title 5, United States Code (U.S.C.) Section 

553, and may require additional consultation under E.O. 13175 and other authorities. When 

implementing the recommendations below, the Forest Service must also comply with its obligations 

under NEPA, the National Forest Management Act (NFMA), and other laws. We do not anticipate 

additional funding to accomplish these recommendations, nor should these recommendations be 

construed as commitments to request additional funding. However, significant improvements can be 

accomplished without additional funds or by reprioritizing existing agency funds.
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 25

I. RELATIONSHIPS/COMMUNICATIONS

Without good relationships and communications between Forest Service individuals and AI/AN 

caretakers of sacred sites and a full understanding of authorities and limitations under current law, there 

will never be respectful recognition and protection of sacred sites. 

Recommendations:

A. Communication. 

1. Work with the USDA Office of Budget and Program Analysis and the Forest Service Office 

of Regulatory and Management Services to provide Forest Service and USDA leadership with 

regular notice of upcoming national policy initiatives such as rulemakings that will require 

consultation. This knowledge will enable coordinated timing of consultation events, allowing 

regions and forests to provide more timely notice to Tribes, improved scheduling of 

consultation, and potentially reduce the administrative and financial burdens associated with 

consultation for Forest Service employees, Tribes, and ANCs. 

2. Require forests to offer regularly scheduled communication and consultation opportunities 

with FRTs. Document commitments regarding these opportunities in a MOU; include sacred 

sites protection among the topics to be discussed.

3. Develop a recognition system for employees and Tribal partners engaging in effective 

communication. Encourage those recognized to mentor and train others. 

4. Revise Forest Service consultation directives in Forest Service Manual (FSM) 1563 and 

Forest Service Handbook (FSH) 1509.13 to reflect agency consultation policy and to 

incorporate USDA Tribal consultation goals and objectives.

5. Encourage Forest Service employees to meet regularly with FRT tribal elected officials and 

other stakeholders to discuss improvements in the protection of sacred sites. Build on the 

successes of the “To Bridge a Gap” conference and other similar meetings in reaching sacred 

sites protection goals.

B. Training. Develop and implement core competencies for line officers and staff including a 

comprehensive training program for line officers, staff, and law enforcement personnel to 

provide the knowledge to build respectful relationships; to use available tools for sacred site 

protection; and to gain a broader understanding of and competency with AI/AN laws, customs, 

traditions, and values. Invite AI/AN people to assist in developing and delivering core curricula. 

1. Training—Existing: Develop a catalog of existing training offered by Tribes and other entities, 

work to increase Forest Service attendance at tribally sponsored sessions, and work with 

Forest Service Grants and Agreements to develop agreements to simplify the acquisition of 

these training services. (Forest Service and USDA OTR).

2. Training—Departmental: Develop a training track to serve USDA at the Department level 

and be available for other USDA agencies to tailor to their particular mission area. (USDA 

OTR).

3. Training—Agency Leadership/Regions: Develop training for its line officers and program 

area staffs at the Washington and regional levels using USDA and other available resources. 

Target audiences will also include the Acquisition Management staff; FOIA officers; NEPA 

specialists; LEOs; and Lands and Recreation Special Uses, S&PF, and R&D staffs with 

program-specific training developed to address the particular needs and concerns in those 

areas. (Forest Service).
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 26

4. Training—Local: Develop training for the field based on national core curricula. The target 

audience is national forest and grasslands line officers and staff, including forest supervisors’ 

offices, district rangers, staff officers at forest and district levels, and field employees. 

Training will include workshops and other relationship building efforts with partners and 

draw on existing training resources as described above. Forest Service units will reach out to 

local Tribes to both develop and deliver training to Forest Service employees. Forest Service 

units will coordinate with local Tribes when sponsoring Forest Service workshops or training 

to include Tribal perspectives. (Forest Service).

C. Staffing. Take steps to increase support to the agency in carrying out its trust responsibilities and 

other obligations to Tribes.

1. Hold appropriate line officers accountable for fulfilling obligations to Tribes, including those 

related to sacred sites, through performance measures or other means such as requiring 

training and coordination. 

2. Have Forest Service OTR and regional foresters jointly develop strategy to ensure Tribal

liaison functions at the regional and forest levels are optimally aligned to support consultation 

and collaboration with Tribes.

3. Include strategies in Forest Service succession planning to enhance diversity in the Forest 

Service workforce and improve program administration by providing for full-time Tribal

relations managers and liaisons where needed, if funds are available.

4. Require core competencies in Tribal relations where Tribal partnerships and delivery of trust 

and treaty obligations are significant (see also recommendations on Training).

5. Encourage increased presence of AI/AN people in Forest Service advisory roles through 

targeted recruitment and outreach to AI/AN people for established Federal advisory 

committees, and in emerging collaborative efforts. As existing Federal advisory committee 

charters are reviewed and revised, encourage advisory committees to include AI/AN 

representatives. 

6. Publish a list of existing Federal advisory committees and vacancies and make it available to 

the public and Tribes. 
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 27

II. DIRECTION/POLICY

Across the United States, listening session participants, employee survey respondents, and Tribal

reviewers of the Draft Report said that the definition for sacred sites in Executive Order 13007 is 

flawed. Some public commenters stated they believed the Executive Order definition is appropriate and 

should not be changed. Various laws hinder the agency’s ability to protect sacred sites, but, in many 

instances, commenters felt agency decisionmakers do not use existing discretion and tools. Many 

believed direction and policy could be revised to enhance protection of sacred sites. 

Recommendations:

A. Executive Order on Sacred Sites (E.O. 13007). The definition limiting sacred sites to “specific, 

discrete, narrowly delineated locations” of “religious significance” may be too narrow and 

inconsistent with the AI/AN view of sacredness.35 Any or all of the following steps should be 

reviewed and further discussion with other departments and agencies should occur: 

1. Consider the broader concept of “sacred places,” including cultural landscapes, traditional 

cultural properties, sacred sites, and others. 

2. Consider incorporating the concept of “sacred places” and/or other tools discussed in II.A.1 

into training developed pursuant to Recommendation I.B. 

3. Consider revising Forest Service directives a requirement and mechanism by which potential

effects of proposed Forest Service actions on areas identified by Tribes as essential to their 

religious, ceremonial, or traditional cultural practices will be considered and addressed prior 

to Forest Service action that may affect those areas. 

B. Confidentiality. Without knowing the location of sacred sites, it is difficult to protect them. 

However, we heard that many AI/AN people do not trust that information provided to the Forest 

Service will be kept confidential. The Forest Service has authority to maintain the 

confidentiality of some information provided by AI/AN people through existing legislation—

most notably FOIA and its exceptions under the 2008 Farm Bill, NHPA, and ARPA36, but see 

acknowledgements, above, on confidentiality.37

1. Revise the directives at FSM 6270 (Availability of Records [FOIA]) to implement the 2008 

Farm Bill’s confidentiality provisions and procedures, and provide training at the forest and 

district levels regarding confidentiality of information on sacred sites.

2. Develop standard clauses to include in MOUs between the agency and individual Tribes 

regarding confidentiality of information on sacred sites.

3. Work with Congress to improve the language of the confidentiality provisions of existing 

law.

 

35 The Draft Report included a recommendation to work towards changing the definition of “sacred sites” in E.O. 13007. For 

discussion of why this recommendation is not included here, please refer to the Acknowledgements section, page 13-14. . 

36 As noted above, E.O. 13007 also requires that, “[w]here appropriate, agencies shall maintain the confidentiality of 

sacred sites.”
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 28

C. Policy, Authority, and Discretion. Although laws, regulations, policies, and court decisions 

currently exist that enable land managers to protect sacred sites, we heard that the Forest Service

does not always use its discretion under these authorities to do so. From some employees, we 

heard about the need for high-level support for land managers who might make a decision to 

protect and accommodate AI/AN use of sacred sites, but were concerned about repercussions 

from other local constituencies, Congress, or the Administration.

1. Support line officers’ use of existing authorities to protect sacred sites through clear direction 

and appropriate training on the opportunities and limitations available under current law. See 

“Synthesis of the Legal Landscape” below.

2. Review and revise USDA and Forest Service directives, incorporating sacred sites protection 

using existing authorities. Prioritize directives for revision that will have the greatest impact 

such as FSM 1563 (American Indian and Alaska Native Relations); 1580 (Grants, 

Cooperative Agreements, and Other Agreements); 2360 (Heritage Program Management); 

1920 (Land Management Planning [NFMA]); 1950 (Environmental Policy and Procedures 

[NEPA]); 5100 (Wildfire Management); 5300 (Law Enforcement, including 5370, Suitability 

Requirements, Training, and Standards); 6270 (Availability of Records [FOIA]); and FSH 

6209.13 (FOIA). 

D. Competing Statutory Obligations. Numerous laws and policies with effects on sacred 

sites are outside agency control, such as the 1872 Mining Law, Federal Energy 

Regulatory Commission issuance of hydropower licenses and placement of transmission 

corridors, and decisions involving the leasing of certain minerals on NFS lands reserved 

from the public domain.

1. Further evaluate policies interpreting the agency’s discretion and lack of discretion in 

implementing the 1872 Mining Law, as sacred sites may be impacted by exploration or 

development operations for locatable minerals. Consider appropriate mitigation measures 

through NEPA and in Records of Decision that can minimize and/or avoid impacts to sacred 

sites where possible.

2. Develop more specific guidance for requesting the Department of the Interior to withdraw 

NFS lands from one or more of the laws authorizing the disposal of federal minerals to 

proactively protect areas that include sacred sites where appropriate. 

3. Develop more specific guidance regarding the appropriate use of mandatory conditions in 

Federal Power Act hydropower relicensing procedures to protect sacred sites or other 

resources that are sacred to Tribes. 

4. Consider sacred sites when prioritizing lands for acquisition or exchange. 

5. Share the results of this review with other Federal agencies to encourage them to protect and 

accommodate sacred sites. 

E. Land Management Plans. The 2012 planning rule requires that new plans or plan revisions 

provide for protection of cultural and historic resources and management of areas of Tribal

importance. The 2012 planning rule also includes requirements for “ecosystem services,” which 

include cultural heritage values. 

1. Use the provisions in the new planning rule to ensure consideration of sacred sites on an 

individual forest or grassland is addressed in the plan revisions. 

2. Incorporate concepts as identified in Recommendation II.A.1 into land management 

planning directives at FSM 1920.
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 29

III. ON-THE-GROUND ACTIONS

Those who commented on the Draft Report suggested many ways to improve on-the-ground sacred sites 

protection and interpretation of cultural and sacred areas. These ideas can be implemented now. 

Recommendations: 

A. Partnerships: Partner with and recruit AI/AN people using existing authorities (contracting, 

grants and agreements, hiring, and volunteer services) to enhance Forest Service interpretation, 

law enforcement, cultural resource protection, youth involvement, firefighting, and other agency 

work and to serve as agency liaisons, trainers, and consultants. 

1. In outreach activities, target AI/AN people in striving to meet the objective of increased 

overall workforce diversity in the Forest Service. 

2. Increase Tribal access to partnership resources and training by providing example 

agreements that could achieve shared management goals and by working with Tribes to 

develop partnership guidance materials for a Tribal audience.

B. Access. Ensure that land managers and Tribes are aware of the 2008 Farm Bill and other legal 

authorities regarding accommodation of AI/AN access for religious, ceremonial, or other 

purposes, and limited closures of NFS lands for Tribal traditional and cultural practices.

C. Protection. Increase the physical protection of sacred sites, historic properties, and their 

surroundings during land management activities. 

1. Ensure line officers and law enforcement personnel work together to protect sacred sites and 

allow appropriate access by Tribal traditional, cultural, or religious practitioners. Coordinate 

with Tribal, State, and other local enforcement agencies to inform them of allowed, expected, 

and permitted Tribal activities.

2. Utilize DOI-USDA cross-designations authorities to assist in the enforcement of violations of 

ARPA and NAGPRA, and other cultural crimes. Work with the Bureau of Indian Affairs 

(BIA) to utilize tribal LEOs, where appropriate, who have been commissioned consistent 

with DOI authorities. Consult on emergency activities, such as fire and other natural 

disasters, as early as possible to protect sacred sites.

3. Where feasible, include AI/AN people as stewards in monitoring sacred sites.

4. Improve the ability to identify, document, and maintain confidentiality of sacred sites 

information, consistent with applicable law.
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 30

SACRED SITES AND THE FOREST SERVICE: 

SYNTHESIS OF THE LEGAL LANDSCAPE38

OVERVIEW

Federal land management agencies, including the Forest Service, operate under myriad laws, 

regulations, policies, and procedures that influence and direct the agencies’ discretion to protect and 

accommodate AI/AN use of sacred sites located on Federal lands. These laws and policies range from 

the United States Constitution to agency directives guiding employees’ actions relative to a particular 

statute or regulation. 

Overall, land management agencies are afforded a great deal of discretion when they decide to protect 

sacred sites and have employed a number of laws and policies to protect or mitigate impacts to sacred 

sites. However, land management agencies’ decisions impacting sacred sites in ways that many AI/AN 

people consider damaging and sacrilegious have been treated deferentially and upheld by the courts as 

not violating AI/AN peoples’ constitutional, statutory, or other rights. Courts have been constrained by 

the often limited cause of action provided in statutes written to protect AI/AN sacred sites. Courts have 

ruled that these statutes do not create judicially enforceable individual rights.39 Many AI/AN 

commenters noted that due to court decisions regarding these statutes, the statues have “no teeth.” Thus, 

agency-approved projects that Tribes and other AI/AN people consider to be a desecration of their 

sacred sites have been upheld by courts as not imposing a substantial burden on the Tribes’ free exercise 

of religion, even under the Religious Freedom Restoration Act (RFRA).40 

While the Federal Government may prevail in court after months or years of litigation regarding planned 

actions that adversely impact sacred sites, the victory may come at great cost to the agency’s and the 

Federal Government’s relationship with Tribes: not only with the particular Tribe(s) whose site has 

been affected, but with many AI/AN people and groups nationwide. In comments made before and after 

release of the Draft Report, throughout the United States, we heard AI/AN people say they do not 

believe the laws designed to protect their interests are capable of doing so. In many cases, they do not 

believe the Forest Service or any other Federal agency is concerned with or capable of providing 

protection for these sacred sites. 

There are, however, many existing laws, regulations, policies, and court decisions upon which the Forest 

Service and other Federal land management agencies can and do rely to support their decisions to 

protect sacred sites. We highlight these authorities below, especially those available to the Forest 

Service. 

 

38 This synthesis is intended to improve understanding of available authorities and the discretion they provide the agency; it is 

not intended to be comprehensive or all-encompassing. For more information on relevant case law and other authorities, see 

appendices F, Selected Court Decisions, and G, Existing Authorities. 

39 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).

40 Navajo Nation v. United States Dep’t of Agric.,. 535 F.3d 1058 (9th Cir. 2008) (en banc); Lyng v. Northwest 

Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). 
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 31

GOVERNMENT’S TRUST RESPONSIBILITY TO TRIBES 

The Tribal trust responsibility requires the Federal Government to maintain a fiduciary relationship 

towards all FRTs. The trustee beneficiary relationship between the Federal Government and Indian 

Tribes has been described as resembling a “guardian-ward” relationship. The trust relationship was first 

recognized by the Supreme Court in its early decisions interpreting Indian treaties,41 and the Court’s 

interpretation of the trust responsibility has evolved over the years. Today, certain principles of this 

trust relationship are clear. 

1. Support for Tribal sovereignty and Tribal self-government is important to the execution of the 

Federal trust responsibility. 

2. The Federal trust responsibility applies to the 

lands and resources, such as fish, wildlife, 

and timber, which Congress has agreed or 

elected through treaties and statutes to 

protect and manage for the benefit of the 

Tribes. The trust responsibility also applies 

to the right of Tribes to govern their own 

reservations.

3. The trust responsibility applies to Congress, 

as well as all Executive Branch agencies. 

4. Congress under certain laws has imposed 

more specific trust duties upon particular 

Federal agencies, mainly the DOI and in 

particular the BIA. 

5. Congress may unilaterally alter or terminate 

the terms of the trust at any time, without the 

Tribes’ consent, provided Congress does so 

by an express and clear act. 

Federal agencies, including land management 

agencies, should approach their trust responsibilities 

to FRTs in a way that gives effect to Federal Indian 

policy, is protective of Tribal property interests, and 

ensures Tribes' political and cultural well-being and 

survival. Government-to-Government

communication is essential to understanding Tribal

 

41 For example, the Supreme Court observed in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) (1831), that Native American 

Tribes are appropriately considered as “domestic dependent nations” that are “in a state of pupilage” to the United States, 

resembling “that of a ward to his guardian.” In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Court held that 

Federal treaties with the Cherokee recognized the tribe as a distinct political community which “claimed and receiv[ed] the 

protection of one more powerful.” 

Figure 5: The Lyng Decision 

The G-O Road

In Lyng v. Northwest Indian Cemetery 

Protective Association, 485 U.S. 439 (1988), 

the Forest Service sought to develop a road on 

the Six Rivers National Forest (the GasquetOrleans Road or “G-O Road”) through an area 

historically used by Indians for religious and 

spiritual activities. An Indian organization and 

several individual Indians sought to prohibit 

the road construction, arguing that the road 

would violate their rights under the Free 

Exercise Clause of the First Amendment. 

The Supreme Court held that the Free Exercise 

Clause did not prohibit the Government from 

constructing the proposed road because the 

Government's action would not coerce the 

Indians into violating their religious beliefs, 

nor would the governmental action penalize 

the exercise of religious rights by denying 

adherents an equal share of the rights, benefits, 

and privileges enjoyed by other citizens. 

The Court held that the Forest Service’s efforts 

to adjust the road to minimize adverse impacts 

to the Indians' spiritual and religious interests 

in the area was consistent with the policy of 

the United States as set forth in the American 

Indian Religious Freedom Act (AIRFA) and, at 

the same time, the Court determined that 

AIRFA provides no judicially enforceable 

individual right or cause of action against the 

Government. 
December 2012

USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 32

rights and interests and fulfilling trust responsibilities to Tribes. While implementing Federal law 

pertaining to Federal lands, land managers should also consider how their actions will support Tribes’ 

ability to protect their own members, manage their resources, and generally maintain their distinct cultural 

and political identities. 

FIRST AMENDMENT OF THE CONSTITUTION: 

THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE CLAUSE

Federal actions that may impact Tribal spiritual, traditional, and religious practices are guided 

by the First Amendment of the United States Constitution which provides, in pertinent part, 

that: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free 

exercise thereof...” (U.S. Const. amend. I).

An extensive body of case law has developed regarding the two aspects of this provision, 

known as the Establishment Clause and the Free Exercise Clause of the First Amendment. Courts 

deciding matters involving the Free Exercise Clause have found that Government action does not 

interfere with a group’s or individual’s free exercise of religion except in very limited circumstances: 

when the Government’s action coerces the individual to violate his or her religious beliefs or penalizes 

religious activity by denying a person an equal share of the rights, benefits, and privileges enjoyed by 

other citizens. See figure 5.

The Supreme Court has held that the Establishment Clause generally prohibits the Government 

from singling out religious organizations for special treatment, whether in the form of a direct 

benefit or an exemption from a Government requirement. The Government must “pursue a 

course of neutrality toward religion, favoring neither one religion over others nor religious 

believers over nonbelievers.”42 See figure 6. At the same time, the court “has long recognized 

that the Government may (and sometimes must) accommodate religious practices, and that it may 

do so without violating the Establishment Clause.”43 Case law developed under the Establishment 

Clause generally has created discretion for agency decisionmakers to work with AI/AN people to 

develop reasonable accommodations for Tribes and traditional practitioners to access and protect 

sacred sites.44 See figure 6. 

In many cases where the Government has been accused of violating the Establishment Clause, courts 

have applied some variant of what has become known as the “Lemon test,” to weigh the issues. This 

test, which originated in Lemon v. Kurtzman, (403 U.S. 602), a 1971 Supreme Court case, is used to 

determine whether Government action has violated the Establishment Clause of the United States 

Constitution. The test has three prongs, which may be summarized as follows:

1. The Government's action must have a secular purpose;

2. The Government's action must not have the primary effect of either advancing or inhibiting 

religion; and

 

42 Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 696 (1994) (internal quotation omitted).

43 Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (quoting Hobbie v. Unemployment Appeals 

Comm’n, 480 U.S. 136, 144-45 (1987).

44 For more information on court decisions involving sacred site issues, see appendix F, Selected Court Decisions. 
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3. The Government’s action must not result in an “excessive Government entanglement” with 

religion.

If any of these three prongs is violated, the Government’s action may be deemed unconstitutional under 

the First Amendment. However, the Lemon test has been scrutinized, criticized, and distinguished and 

has evolved since 1971, with the Ninth Circuit noting, “the Lemon test has hardly been sanctified by the 

Supreme Court”45. While courts regularly cite the Lemon test when evaluating Establishment Clause 

cases, the fact that religious considerations factored into the Government’s decision will not 

automatically render the Government action unconstitutional. See figure 6 below.

In very broad terms, the Free Exercise Clause 

might be thought of as a “floor” and is written 

in terms of what the Government cannot do to 

the individual: to wit, the Government cannot 

coerce people into violating their religious 

beliefs, or penalize the exercise of religious 

rights by denying adherents an equal share of 

the rights, benefits, and privileges enjoyed by 

other citizens. The Establishment Clause 

might be considered a “ceiling” in that it limits 

Government action in support of religious 

exercise: actions taken to protect sacred sites 

must not single out one particular religion for 

special treatment. Accommodation of 

particular religious practices, however, is 

permissible, particularly if Government action 

also serves a secular purpose. 

Thus, the responsible official has discretion 

when weighing alternatives that may impact 

a sacred site. Broadly speaking, this 

discretion is bounded by the Free Exercise 

Clause and the Establishment Clause. 

 

45 Access Fund v. USDA, 499 F.3d 1036 (9th Cir. 2007).

Figure 6: The Access Fund Decision 

Climbers and Cave Rock

In Access Fund v. USDA (2007), the Ninth Circuit 

upheld a decision by the Forest Service for a 

complete ban on recreational rock climbing on 

Cave Rock, the most sacred feature in the Washoe 

religion, finding that the restriction did not violate 

the Establishment Clause. The court found that 

the Forest Service in approving the ban had acted 

pursuant to a secular purpose—the preservation 

of a historic and cultural area—and concluded that 

“even if the ban on climbing were enacted in part 

to mitigate interference with the Washoe’s 

religious practices, this objective alone would not 

give rise to a finding of an impermissible religious 

motivation.” The panel also noted “the Supreme 

Court has counseled that “the Constitution... 

affirmatively mandates accommodation, not 

merely tolerance, of all religions, and forbids 

hostility toward any.” That is, “the Government 

may (and sometimes must) accommodate religious 

practices and...it may do so without violating the 

Establishment Clause.” 
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STATUTES SUPPORTING SACRED SITE PROTECTION

Congress has enacted a number of laws designed to protect Tribes' traditional, cultural, and religious 

uses and values. In 1978, Congress enacted the American Indian Religious Freedom Act (AIRFA),

creating a Government wide policy to protect AI/AN sacred sites and traditional forms of worship. 46 In 

1979, Congress adopted the ARPA, creating protections for archeological resources on federal and 

Tribal lands.47 In 1990, Congress passed the NAGPRA, requiring Federal land managers to protect 

Native American graves, consult with Native American Tribes concerning religious and cultural sites 

and objects, and to repatriate cultural and religious items found on Federal lands.48

The Religious Freedom Restoration Act, passed in 1993, reiterated that governments should not 

substantially burden religious exercise without compelling justification and attempted to “provide a 

claim or defense to persons whose religious exercise is substantially burdened by government.”49 

Though written in part to address concerns of the AI/AN community with adverse outcomes in court in 

Lyng and other cases, the impact of RFRA, and its value in the minds and hearts of Tribes, traditional 

practitioners, and indigenous people, was substantially lessened by a court decision in the Ninth Circuit 

known as Navajo Nation v. United States Forest Service. In this decision, the entire Ninth Circuit, 

ruling on a petition for rehearing, found that a Forest Service decision to allow the use of treated 

wastewater (sewage effluent) for snowmaking at the Snowbowl Ski Area did not pose a “substantial 

burden” to the Tribes’ religious practice, because it does not “coerce the Plaintiffs [Tribes] to act 

contrary to their religious beliefs under the threat of sanctions, nor does it condition a governmental 

benefit upon conduct that would violate their religious beliefs.” The 13 affected Tribes consider the 

snowmaking, and in particular the use of treated wastewater to make snow, to be a sacrilegious

desecration of their sacred mountains, the San Francisco Peaks. The Ninth Circuit’s decision included a 

dissent that would have held the activity was indeed a substantial burden on religious practices of the 

Tribes. The Tribes petitioned for certiorari before the U.S. Supreme Court, which declined to hear the 

case in 2009.50

In passing the NHPA in 1966, Congress declared that the spirit and direction of the Nation are founded 

upon and reflected in its historic heritage and that heritage should be preserved to give a sense of 

orientation to the American people. With the passage of the NHPA, Congress went beyond the 

 

46 42 U.S.C. §1996.

47 16 U.S.C. §470aa - 470mm.

48 25 U.S.C. §3001.

49 (42 U.S.C. 2000bb, et. seq.) Pub. L. 103-141, Sec. 7, Nov. 16, 1993, 107 Stat. 1489

50 Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir., 2008), cert denied, 129 S.Ct. 2763 (2009). In a 

follow-up case to Navajo Nation, Plaintiffs Save the Peaks Coalition and other AI/AN individuals alleged the Forest 

Service’s decision at Snowbowl did not adequately analyze the impacts resulting from the potential ingestion of snow made 

from reclaimed wastewater. Plaintiffs contended this constituted a violation of NEPA resulting from the Forest Service’s 

failure to take a “hard look” at these potential impacts. In upholding the District Court, the Ninth Circuit stated that 

Plaintiffs' litigation tactics in this case were “unfair” and “a gross abuse of the judicial process.” The court found in favor of 

the Forest Service (and Arizona Snowbowl Resort) on the merits of the case, concluding: “Having discussed the issue at 

length in the [Final Environmental Impact Statement] and the response to comments, the USFS clearly took a ‘hard look’ at 

the environmental impacts of permitting the snowmaking project to proceed. The FEIS contains a thorough discussion of the 

significant aspects of the probable environmental consequences, including the risks posed by human ingestion of snow. 

Indeed, it is hard to imagine how the USFS's analysis could have been more exhaustive.” Save the Peaks Coalition v. United 

States Forest Service, No. 10-17896, slip op. (9th Cir. Feb. 9, 2012). 
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emphasis on objects and ruins in the Antiquities Act, setting into law a broad range of historical values. 

Under the NHPA, prior to approving federal action, agencies must take into account and enter 

consultation concerning the effects of the action on properties eligible for inclusion in the National

Register for Historic Preservation. Under the NHPA amendments of 1992, historic properties of 

religious and cultural importance to a Native American Tribe may be determined eligible for inclusion 

on the National Register of Historic Places (National Register or NRHP) and therefore subject to NHPA 

consultation requirements. The 1992 amendments significantly expanded the provisions of the NHPA to 

ensure that Tribal interests are considered in determinations of significance and effect.51 For more 

information on the NHPA and the interplay between sacred sites and traditional cultural properties, see 

figure 7, and table 1.

 

51 16 U.S.C. §470a(d); see also Forest Service Manual 2363.17.
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FIGURE 7: Historic Properties and Sacred Sites—Places That Matter

When the Antiquities Act became law in 1906, the American sense of historic preservation was very much devoted 

to the objects and ruins so prized by archaeologists and museum curators. The Historic Sites Act of 1935 provided 

protection for buildings and structures, and the Reservoir Salvage Act of 1960 continued the trend in preservation of 

things that would otherwise be destroyed. In 1966, with the passage of the NHPA, Congress went beyond the 

emphasis on objects and ruins in the Antiquities Act, setting into law a broad range of historical values. 

The preamble to the act is highlighted here for its declaration that the cultural foundations of the Nation should be

preserved as a living part of our community.

In enacting the NHPA, Congress declared that:

1) The spirit and direction of the Nation are founded upon and reflected in its historic heritage;

2) 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;

3) Historic properties significant to the Nation’s heritage are being lost or substantially altered, often 

inadvertently, with increasing frequency;

4) 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. Additionally, the NHPA declared it to be our national policy that the Federal Government will 

“administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship 

for the inspiration and benefit of present and future generations.”

Section 106 of NHPA requires Federal agencies to consider the effects of any Federal undertaking that might affect 

historic properties. Regulations were prepared and codified (36 CFR 800 et seq., 16 U.S.C. 469–470), and 

significant amendments to the statute were passed in 1980 and 1992. The 1980 amendments, in Section 110, 

established the expectation that agencies would manage a program of inventory to proactively identify all historic 

properties on public lands, and required heritage planning.

In 1990, the National Park Service released Guidelines for Evaluating and Documenting Traditional Cultural 

Properties, or “Bulletin 38,” to provide guidance on evaluating traditional cultural properties as historic properties 

that may be eligible for listing on the National Register of Historic Places.

The 1992 NHPA amendments responded to general concerns about historic properties of religious and cultural 

important to AI/AN people. These amendments recognized and addressed AI/AN interests by broadening the notion 

of “historic properties” to include historic properties of religious and cultural importance to tribes: “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” (NHPA Section 101(d)(6)(A)). 

With the addition of this language in the regulations at 36 CFR 800, tools for considering effects on some sacred 

sites as historic properties were made available in the same way as all other historic properties. Identification of 

such sacred sites as a type of historic property, determination of actions causing adverse effects to sacred sites, and 

the appropriate resolution of any adverse effects must be informed by the special knowledge of AI/AN people. 
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Interaction of National Historic Preservation Act and Executive Order 13007

Throughout this review, we heard that it is important to clarify the distinction between sacred sites under 

E.O. 13007 and traditional cultural properties under NHPA. The following figures attempt to illustrate 

those distinctions. However, it is also important to understand that in many cases both authorities can be 

used for the protection of Indian sacred sites.

TABLE 2

COMPARING SACRED SITES AND TRADITIONAL CULTURAL PROPERTIES

E.O. 13007 Sacred Site NHPA Traditional Cultural Property (TCP)

Who identifies the 

sacred sites or 

TCP

Only a Tribe or appropriate representative of 

an Indian religion may identify a site as sacred.

The agency designates a TCP, through 

consultation with Tribes and others.

How is it 

defined?

A site that is “sacred by virtue of its established 

religious significance to, or ceremonial use by, 

an Indian religion.”

A historic property that is eligible for NRHP 

“because of its association with cultural 

practices or beliefs of a living community.” 

What is the 

authority that 

requires 

consultation?

E.O. 13007, Section 2 

Executive Memo, April 29, 1994

E.O. 13175

36CFR 800.2 through 800.7 require

consultation regarding the significance of 

the historic property that is a TCP during 

NHPA Section 106 review.

NHPA Section 110(a) requires consultation 

for the identification of traditional cultural 

properties during NHPA Section 110 

inventory.

Note: Consultation requirements such as

NHPA Section 101 may include non-Tribal 

entities (State Historic Preservation 

Officers, ACHP, and others).

What are the 

confidentiality 

requirements?

“Where appropriate, agencies shall maintain 

the confidentiality of sacred sites.”

NHPA Section 304 requires the agency to 

secure information regarding the nature and 

location of historic properties. Traditional 

cultural properties are historic properties 

and therefore protected under this section of 

the NHPA.

National Register Bulletin 38 provides 

official guidance on the documentation and 

designation of traditional cultural properties, 

including the restriction on release of certain 

information.

What are the 

provisions for 

disclosure?

Subject to FOIA, but Farm Bill Prohibition on 

Disclosure provides for security of information 

regarding the “identity, use, or specific 

location” of site, resource, or cultural items.

Information may be shared with the 

National Park Service Keeper of the NRHP 

as part of the process for listing on the 

National Register of Historic Places.

NHPA Section 106 and 36CFR 800.2-7 

require that information be shared with State 

Historic Preservation Officer/Tribal Historic 

Preservation Officers Tribal Historic 

Preservation Officers.

May be published in Federal Register

Who documents 

sacred sites or 

TCPs?

Agency

Multiagency: TCPs are historic properties and 

their listing on the National Register of 

Historic Places requires NPS approval. 

How are records 

treated?

Sealed: Agency restricted subject to 

parameters established in consultation with the 

TCP Determination-NRHP criteria:

Limited public release depending on the 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 38

designating Tribe(s). nature and location of the property

FOIA Exceptions: Use of Sec. NHPA 

Section 304 to withhold site information

How are sacred 

sites and TCPs 

managed?

Accommodate tribal use and access where 

appropriate

Memorandum of understanding or other 

agreements to establish management 

practices and protections. 

The agency must address its multiple use 

mission when managing TCPs.

Programmatic agreements or site specific 

agreements prepared under the provisions 

of 36CFR 800 et seq.

How are sacred 

sites and TCPs 

protected?

Where appropriate, avoid adversely affecting

the physical integrity of such sacred sites

Seek to avoid adverse impacts to integrity of 

characteristics of the property that qualify it 

for inclusion in the NRHP

Adverse impacts require consultation to 

establish mitigation requirements in site 

specific memorandums of agreement for the 

protection of TCPs under 36CFR800 
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In the 2008 Farm Bill,52 Congress enacted legislation “to 

strengthen support for the policy of the United States of 

protecting and preserving the traditional, cultural, and 

ceremonial rites and practices of Native American 

Tribes, in accordance with [AIRFA].”53 The statute 

included language permitting the following: 

Reburial of human remains and cultural items on 

NFS land.

Temporary closure of portions of national forests for 

Tribal traditional and cultural practices.

54

Tribes’ use, free of charge, of trees, parts of trees, or 

forest products on NFS land for Tribal traditional and 

cultural practices.

The protection of the confidentiality of certain 

culturally sensitive information from disclosure under 

the FOIA. See figure 9, and appendix C, 2008 Farm 

Bill.

Congress has also enacted site-specific laws 

pertaining to particular administrative units of the 

federal land management agencies that authorize 

temporary closure for exclusive use by Tribes. These 

statutes include authority to temporarily close 

portions of El Malpais National Monument in New 

Mexico for exclusive use by Tribes for traditional 

cultural and religious purposes; authority to 

temporarily close portions of Cibola Historical Park 

for Indian religious services; and similar closure authority for lands included under the 

California Desert Protection Act of 1994.55

OTHER AUTHORITIES SUPPORTING SACRED SITES PROTECTION

This review has already discussed President Clinton’s E.O. 13007 (1996) on Indian sacred sites at 

length. E.O. 13007 directs Federal agencies “to the extent practicable, permitted by law, and not 

clearly inconsistent with essential agency functions, (1) [to] 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.”

E.O. 13007 defines “sacred sites” as follows: 

 

52 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, §§ 8101-8106, 25 U.S.C. §§ 3051-3056. 

53 Id. at § 8101(7).

54 In January 2011, this provision was entered into the Code of Federal Regulations as a type of closure the Forest Service may 

issue under special order. See “Prohibitions in Areas Designated by Order; Closure of National Forest System Lands To 

Protect Privacy of Tribal Activities,” 76 Fed. Reg. 3015 (Jan. 19, 2011), codified at36 CFR §261.53(g). See also appendix C. 

55 16 U.S.C. § 460uu-47; 16 U.S.C.§228i; and 16 U.S.C. §410aaa-75.

Figure 9: Confidentiality

For many reasons, practical, cultural, 

religious, or political, Tribal people may 

be reluctant to share information related 

to sacred sites with Federal agency 

personnel. Worries about members of 

the public vandalizing or looting sacred 

sites and concerns about increased 

visitation, noise, or traffic play a role in 

tribal peoples’ hesitation to share 

information about the location and uses 

of sacred sites. Moreover, in many 

tribal cultures, it is strictly forbidden to 

discuss the location and uses of specific 

sites and what makes them sacred to the 

Tribe with outsiders who do not practice 

the same life-ways, or even members 

who are not elders or traditional 

practitioners. The exemptions in FOIA

at 5 U.S.C. §552(b) determine the extent 

to which a federal agency can withhold 

documents from disclosure.
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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.

For the full text of E.O. 13007, please see appendix B. A key feature of this definition is that it is 

Tribes and appropriate representatives of AI/AN religions who identify which sites are sacred to 

them, not the Federal Government.56 Though E.O. 13007 does not create a private right of action and 

the definition of sacred sites is unsatisfactory to many AI/AN people and agency employees, E.O. 13007

is currently the clearest federal policy on sacred sites. 

In December 2010, the United States announced support for the United Nations Declaration on the 

Rights of Indigenous Peoples (UNDRIP).

57 In announcing this support, President Obama stated: “The 

aspirations it affirms—including the respect for the institutions and rich cultures of Native peoples—are 

one we must always seek to fulfill...[W]hat matters far more than any resolution or declaration – are 

actions to match those words.”58 The UNDRIP is a nonbinding, aspirational document. It creates no 

new rights under U.S. or international law, nor is it a statement of current international law. Its articles 

address indigenous peoples’ rights to maintain culture and traditions (Article 11); and religious 

traditions, customs, and ceremonies (Article 12); to participate in decisionmaking in matters which 

would affect their rights (Article 18); and to maintain spiritual connections to traditionally owned lands 

(Article 25). The UNDRIP is reprinted in full in appendix G, Existing Authorities. 

LAND MANAGEMENT PLANNING PROCESSES 

The Forest Service conducts land management planning activities under several overarching statutes and 

their implementing regulations. These authorities control how the agency plans for and executes 

projects with on-the-ground impacts, including those that may have an impact on sacred sites. Two 

primary statutes that significantly influence all Forest Service land management decisions are the 

National Forest Management Act59 and the National Environmental Policy Act. Further, section 202(b) 

of the Federal Land Policy and Management Act (FLPMA) directs the Secretary of Agriculture to 

“coordinate land use plans for lands in the [NFS] with the land use planning and management programs 

of and for Indian tribes by, among other things, considering the policies of approved tribal land resource 

management programs.”60 

 

56 This is a key distinction between “sacred sites” as defined by E.O. 13007, and “traditional cultural properties” managed 

under the NHPA. See table 1 and figure 7. 

57 For further explanation of the United States’ position on UNDRIP and many initiatives in Indian country, see 

Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples—

Initiatives to Promote the Government to Government Relationship and Improve the Lives of Indigenous Peoples, which was 

released to accompany the President’s statement in support of the Declaration on January 12, 2011, at 

http://www.state.gov/s/srgia/154553.htm, last visited January 16, 2012. 

58

 President Obama, White House Tribal Leaders’ Summit, Washington, DC, December 16, 2010. Available at: 

http://www.whitehouse.gov/the-press-office/2010/12/16/remarks-president-white-house-tribal-nations-conference, last 

referenced January 16, 2012. 

59 National Forest System Land Management Planning; Final rule and record of decision, 77 Fed. Reg. 21162 (April 9, 

2012). This rule was developed using a collaborative process that went beyond minimum statutory requirements. The 

process included extensive consultation and collaboration with tribes. 

60

 43 U.S.C. § 1712(b).
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On April 9, 2012, the Department published in the Federal Register, the final rule, codified at 36 CFR 

Part 219, for NFS land management planning under NFMA. Section 219.4 of the final rule requires 

opportunities for public and Tribal participation and coordination throughout the planning process. 

Section 219.4(a)(2) requires consultation with FRTs or ANCs, and 219.4(a)(3) requires that the 

responsible official request “information about native knowledge, land ethics, cultural issues, and sacred 

and culturally significant sites” during consultation and opportunities for Tribal participation. Section 

219.6(b) requires the assessment to include identification and evaluation of information about cultural 

conditions and cultural and historic resources and uses. Section 219.8 recognizes cultural aspects of 

sustainability by requiring “cultural and historic resources and uses” be taken into account when 

designing plan components to guide contributions to social and economic sustainability. Section 

219.10(b)(1)(ii) requires “plan components . . .for a new plan or plan revision must provide for 

protection of cultural and historic resources,” and “management of areas of Tribal importance.” The 

final rule also includes recognition of and requirements for “ecosystem services,” which include 

“cultural heritage values.”

A thorough treatment of these laws and regulations’ applicability to the protection of sacred sites is 

beyond the scope of this report. However, it is worth noting that while land management plans must 

balance all issues related to management of NFS lands and resources, development of a land 

management plan may provide a proactive process for evaluating methods of protecting sacred sites,.

This report includes recommendations to consider sacred sites in land management plans and 

incorporate the concepts described herein in Forest Service directives. See Recommendations II.E.1 and 

2. 

Forest Service directives at FSM 1563.01b61 describe in brief the agency’s responsibility in cooperative 

land management and planning with Tribes:

 

1. Coordination with Tribal Land Use Management and Planning. [Section 202(b) of FLPMA]

...provides that:

In the development and revision of land use plans, the Secretary of Agriculture shall 

coordinate land use plans for lands in the National Forest System with the land use 

planning and management programs of and for Indian Tribes by, among other things, 

considering the policies of approved Tribal land resource management programs. [43 

U.S.C. 1712(b).]...

2. Consultation and Coordination with Tribes on Forest Planning. Regulations implementing the 

National Forest Management Act (NFMA) of 1976 (16 U.S.C. 1600 et seq.) direct the Forest 

Service to consult with and coordinate forest planning with Tribes. The land management 

planning regulations, which implement NFMA, are set out at 36 CFR part 219. [...]

3. Consultation and Coordination with Tribes on NFS Project Planning and Decisionmaking. The 

National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and the Council on 

Environmental Quality (CEQ) implementing regulations at 40 CFR parts 1500-1509 require 

 

61 Forest Service directives at 1563.01b were last revised in 200X. This report recommends updating and revising these 

directives. 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 42

Federal agencies to invite Tribes to participate in the scoping process for projects and activities 

that affect Tribes and requires NEPA documentation. Section 1501.2 requires that:

The Federal agency consults early with appropriate State and local agencies and Indian 

Tribes and with interested persons and organizations when its own involvement is 

reasonably foreseeable.

Tribes with treaty rights and other federally protected rights on National Forest System lands 

may also meet with line officers in advance of the formal planning processes. E.O. 13175 calls 

for early consultation with Tribes in the development of regulatory policies that have Tribal

implications (FSM 1563.01g, para. 1).

SUMMARY OF EXISTING LEGAL AUTHORITIES

The agency has many authorities that can support a decision to protect sacred sites. In addition to 

those discussed here, see appendix F, Selected Court Decisions, and appendix G Existing Authorities. 

From this review of case law, statutes, regulations, and policies, some general conclusions may be 

drawn. 

Actions protective of cultural resources, watersheds, animal communities, and other natural 

resources that also protect an AI/AN sacred site may serve a secular purpose, as well as 

accommodate Tribal religion. 

The 2008 Farm Bill provides some authority for protecting confidential information regarding 

sacred sites from disclosure under the FOIA. It also authorizes temporary closures of NFS lands

for Tribal traditional and cultural practices. This authority has been implemented in Forest Service 

regulations at 36 CFR 261.53(g). See appendix C.

Subject to applicable law and as appropriate, the Forest Service can amend directives guiding 

agency action under NEPA (FSM 1950); NFMA (FSM 1920); and historic preservation laws such 

as NHPA, ARPA, and NAGPRA (FSM 2360); as well as agency directives on law enforcement 

(FSM 5370), wildfire management (FSM 5100), other land management activities, and Tribal 

Relations (FSM 1563), to provide more protection for sacred sites. 

If the agency is aware of its existing authority to protect sacred sites and chooses to use it, many 

actions can be taken to protect sacred sites without amending directives. 

Recommendations for actions that can be taken under existing authorities, as well as those that will 

require policy changes, are summarized in the “Acknowledgements and Recommendations” section,

above. 
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 43

RECOGNITION/NEXT STEPS

USDA’s OTR and the Forest Service want to recognize and honor the many individuals from Tribes, 

AI/AN organizations, traditional practitioners, the public, and Forest Service employees who contributed 

to this review and the development of this report. It was an intensive, emotional effort. Their 

participation has been critical. 

This Final Report is intended to advise the Secretary of Agriculture on recommended policy changes 

that will improve the Forest Service’s overall relationships with Tribes and, in particular, improve the 

way the agency treats Tribal sacred sites, while still upholding its mission to sustain the health, diversity, 

and productivity of America’s national forests and grasslands to meet the needs of present and future 

generations. Implementation of the recommendations contained in this Final Report will likely foster 

changes in how the agency makes land management decisions for the good of all Americans. If adopted 

by the Secretary of Agriculture, some of the recommendations can be implemented immediately. Other 

recommendations will take longer to implement and may require public notice and comment or 

coordination among the Federal land management agencies. 

In the short term, the Forest Service anticipates improving its training and directives in keeping with the 

recommendations in this report. Many recommendations will be impacted by current and future budget 

constraints and depend on availability of funding. The Forest Service’s OTR will, however, report 

annually on implementation of the adopted recommendations. 

We anticipate that implementation of adopted recommendations will continue to enhance agency, 

operations and procedures. Since the review was started in 2010, it has catalyzed the sharing of 

information and other positive changes in the Forest Service’s relationship with Tribes, such as: 

Including sacred sites as a significant consideration in a major national environmental review.

Hiring an AI/AN person as a line officer for a national forest that has historically had a 

tumultuous relationship with local Tribes.

Conducting Tribal consultations before, during, and after a major fire to ensure suppression 

activities were conducted in a manner that Tribes considered appropriate for their sacred sites.

Using the new authority 36 CFR 261.53 for temporary closure of an area in the NFS to 

accommodate a Tribal sun dance. 

We anticipate that improved relationships between the Forest Service and Tribes will be one of the most 

important benefits of this review and of the implementation of its recommendations. We strongly 

believe that a better understanding of the values connected to sacred sites will continue to lead to 

positive changes in perspective, protection, access, and continued use of these special places across the 

NFS landscape.
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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 44

We believe this emerging effort will provide much-needed attention to this important 

concern and will truly be in furtherance of the President’s commitment to Tribal leaders 

that he reiterated again this past December when many of you may have been in 

Washington for his second historic meeting with Tribal leaders.

Janie Hipp, USDA Senior Advisor to the Secretary for Tribal Affairs

National Telephonic Listening Session

February 14, 2011

We have [heard] a lot of specifics, and we asked for them. We wanted your experiences, 

and you gave them to us. We asked for some solutions, and you came up with some. We 

appreciate that. That is part of why we are doing this. And I hope this kind of approach 

represents...a collaborative process, that we try to collect information before we write a 

plan, before we write a policy, and hopefully we can learn to do more of that.

Jim Hubbard, Forest Service Deputy Chief for State and Private Forestry

Listening Session, Eureka, California

March 4, 2011

I as Regional Forester will be talking to my counterparts that cover all 193 million acres 

of National Forest System lands about the importance of us and our Line Officers 

engaging with you in ways that advance the cause of making sure we’re protecting and 

treating sacred sites in an appropriate way.

Corbin Newman, Forest Service Regional Forester for the Southwestern Region

National Telephonic Listening Session

November 29, 2010

If we are not successful in accomplishing the purposes of this sacred sites review, we 

are all diminished. 

Joel Holtrop, Forest Service Deputy Chief (retired) for National Forest System

Listening Session, Alaska Forum on the Environment, Anchorage, Alaska 

February 6, 2011

I cannot overemphasize the value of Government-to-Government consultations with the Tribes. 

These discussions continue to produce information critical to developing land management strategies 

that respect and protect America’s sacred lands.

Thomas J. Vilsack, Secretary of the U.S. Department of Agriculture

Announcement of Availability of Draft Report on Indian Sacred Sites

August 6, 2011
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

APPENDICIES

APPENDIX A – GLOSSARY

APPENDIX B – EXECUTIVE ORDER 13007 ON INDIAN SACRED SITES

APPENDIX C – 2008 FARM BILL CULTURAL AND HERITAGE COOPERATION 

AUTHORITY PROVISIONS

APPENDIX D – SUMMARY OF SACRED SITES LISTENING SESSIONS

APPENDIX E – SUMMARY OF FOREST SERVICE EMPLOYEE SURVEY 

RESPONSES

APPENDIX F – SELECTED COURT DECISIONS

APPENDIX G – EXISTING AUTHORITIES

APPENDIX H – SUMMARY OF SACRED SITES POLICY REVIEW CONDUCTED 

BETWEEN 2003 AND 2007

APPENDIX I – SECRETARY VILSACK’S LETTER REQUESTING SACRED SITES 

REVIEW

APPENDIX J – SUMMARIES OF COMMENTS AND CHANGES TO DRAFT 

REPORT
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

THIS PAGE INTENTIONALLY LEFT BLANK
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX A: GLOSSARY
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

Glossary Appendix A-1

Glossary

Alaska Native Corporation (ANC): A regional, urban, or village corporation established under the 

laws of the State of Alaska in accordance with the provisions of the Alaska Native Claims Settlement 

Act.

American Indian/Alaska Native (AI/AN): In this report, this term is used as an inclusive term to 

refer to indigenous individuals in the contiguous United States, Hawaii, and Alaska, whether or not 

they belong to a Federally Recognized Tribe. Individuals may also be referred to as Native 

Americans or Indians in law, regulations, and policies. This definition includes Native Hawaiians. 

Farm Bill: The Food, Conservation, and Energy Act of 2008, Title VIII, Subtitle B—Cultural and 

Heritage Cooperation Authority, Sections 8101–8106, provides for the Forest Service to 

accommodate Tribal requests for confidentiality of information, reburial of human remains, access to 

NFS lands and forest products from NFS lands for Tribal traditional and cultural practices. These 

provisions may not be applicable for use by other federal agencies.

Federally Recognized Tribe (FRT): Any Indian or Alaska Native Tribe, band, nation, pueblo, 

village, or other community, the name of which is included on a list published periodically by the 

Secretary of the Interior titled “Indian Entities Recognized and Eligible to Receive Services from the 

United States Bureau of Indian Affairs.”

Forest Service staff: Forest Service employees who are not line officers.

Heritage Program: The Forest Service staff area responsible for identifying, understanding, 

interpreting, and preserving archaeological and historical resources on National Forest System lands. 

Indian sacred site: As used in Executive Order 13007, “. . . 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.”

Line officer: A Forest Service employee with delegated land management decision-making authority

over the NFS, a region, an administrative unit, or a ranger district.

Multiple use management: The management of all the various renewable surface resources of the 

national forests so that they are utilized in the combination that will best meet the needs of the 

American people, as described in the Multiple Use-Sustained Yield Act at 16 U.S.C. § 531(a).

Nonfederally Recognized Tribe (NFRT): Indian groups in the United States that are not recognized

on the list published periodically by the Secretary of the Interior titled “Indian Entities Recognized 

and Eligible to Receive Services from the United States Bureau of Indian Affairs.”

Special use authorization: A permit, term permit, lease, or easement which allows occupancy, use, 

or other privileges on NFS lands (36 CFR 251.51
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

Glossary Appendix A-2

State Recognized Tribe: Indian Tribes or groups that are acknowledged by a State.

Traditional cultural property (TCP): A property or site that is eligible for inclusion on the National 

Register of Historic Places because of its association with cultural practices or beliefs of a living 

community that are rooted in that community’s history and because of its importance to maintaining 

the cultural identity of that community.

Traditional ecological knowledge (TEK): A way of understanding the world, including knowledge 

of how to live in and adapt to the environment, that is derived from multiple generations of 

indigenous peoples’ interactions, observations, and experiences with their ecosystems. TEK is placebased and culture-based knowledge in which people learn to live in and adapt to their own 

environment through interactions, observations, and experiences with their ecological system. This 

knowledge is generally not gained, developed by, or retained by specific individuals, but is rather 

accumulated over successive generations and is expressed through oral traditions, ceremonies, stories, 

dances, songs, art, and other means within a cultural context.

Traditional Practitioner: An American Indian/Alaska Native who practices the cultural, spiritual, 

or religious traditions passed on to him or her in a way accepted by his or her Tribe or cultural peers. 

Similar terms used in this document include culture keepers, spiritual leader, clan leader, and 

medicine men/women/societies.

Tribal Consultation: A process that enables Federally Recognized Tribes and Alaska Native 

Corporations to provide meaningful, timely input and, as appropriate, exchange views, information, 

and recommendations prior to a Forest Service policy or project decision that may affect their rights 

or interests. 

Tribal Relations Program: The USDA and Forest Service program that advises and assists agency 

leadership in meeting their responsibilities to Tribes under law and policy, and that leverages

opportunities associated with working with Tribal governments and other Native American groups 

and individuals.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX B: EXECUTIVE ORDER 13007 ON INDIAN SACRED SITES
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Executive Order 13007 on Indian Sacred Sites, May 24, 1996 Appendix B-1

Executive Order 13007 of May 24, 1996: Indian Sacred Sites

By the authority vested in me as President by the Constitution and the laws of the United States, in 

furtherance of Federal treaties, and in order to protect and preserve Indian religious practices, it is 

hereby ordered:

Section 1. Accommodation of Sacred Sites. (a) In managing Federal lands, each executive branch 

agency with statutory or administrative responsibility for the management of Federal lands shall, to the 

extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (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. Where appropriate, agencies 

shall maintain the confidentiality of sacred sites.

(b) For purposes of this order:

(i) ‘‘Federal lands’’ means any land or interests in land owned by the United States, including 

leasehold interests held by the United States, except Indian trust lands; 

(ii) ‘‘Indian Tribe’’ means an Indian or Alaska Native Tribe, band, nation, pueblo, village, or 

community that the Secretary of the Interior acknowledges to exist as an Indian Tribe pursuant to Public 

Law No. 103–454, 108 Stat. 4791, and ‘‘Indian’’ refers to a member of such an Indian Tribe; and

(iii) ‘‘Sacred site’’ means 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.

Sec. 2. Procedures. (a) Each executive branch agency with statutory or administrative responsibility for 

the management of Federal lands shall, as appropriate, promptly implement procedures for the purposes 

of carrying out the provisions of section 1 of this order, including, where practicable and appropriate, 

procedures to ensure reasonable notice is provided of proposed actions or land management policies that 

may restrict future access to or ceremonial use of, or adversely affect the physical integrity of, sacred 

sites. In all actions pursuant to this section, agencies shall comply with the Executive memorandum of 

April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments.’’

(b) Within 1 year of the effective date of this order, the head of each executive branch agency with 

statutory or administrative responsibility for the management of Federal lands shall report to the 

President, through the Assistant to the President for Domestic Policy, on the implementation of this 

order. Such reports shall address, among other things, (i) any changes necessary to accommodate access 

to and ceremonial use of Indian sacred sites; (ii) any changes necessary to avoid adversely affecting the 

physical integrity of Indian sacred sites; and (iii) procedures implemented or proposed to facilitate 

consultation with appropriate Indian Tribes and religious leaders and the expeditious resolution of 

disputes relating to agency action on Federal lands that may adversely affect access to, ceremonial use 

of, or the physical integrity of sacred sites.

Sec. 3. Nothing in this order shall be construed to require a taking of vested property interests. Nor shall 

this order be construed to impair enforceable rights to use of Federal lands that have been granted to 

third parties through final agency action. For purposes of this order, ‘‘agency action’’ has the same 

meaning as in the Administrative Procedure Act (5 U.S.C. 551(13)).
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Executive Order 13007 on Indian Sacred Sites, May 24, 1996 Appendix B-2

Sec. 4. This order is intended only to improve the internal management of the executive branch and is 

not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or procedural, 

enforceable at law or equity by any party against the United States, its agencies, officers, or any person.

WILLIAM J. CLINTON
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX C: 2008 FARM BILL

CULTURAL AND HERITAGE COOPERATION AUTHORITY PROVISIONS
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

2008 Farm Bill Cultural and Heritage Cooperation Authority Provisions Appendix C-1

2008 FARM BILL CULTURAL AND HERITAGE

COOPERATION AUTHORITY PROVISIONS

Excerpted from the “Food, Conservation, and Energy Act of 2008,” Pub. L. 110-246, Title VIII, Forestry, 

Subtitle B, Cultural and Heritage Cooperation Authority, §§8101-8107. (June 18, 2008).

SEC. 8101. PURPOSES. 

The purposes of this subtitle are--

(1) to authorize the reburial of human remains and cultural items on National Forest System land, 

including human remains and cultural items repatriated under the Native American Graves Protection and 

Repatriation Act (25 U.S.C. 3001 et seq.); 

(2) to prevent the unauthorized disclosure of information regarding reburial sites, including the quantity 

and identity of human remains and cultural items on sites and the location of sites; 

(3) to authorize the Secretary of Agriculture to ensure access to National Forest System land, to the 

maximum extent practicable, by Indians and Indian Tribes for traditional and cultural purposes; 

(4) to authorize the Secretary to provide forest products, without consideration, to Indian Tribes for 

traditional and cultural purposes; 

(5) to authorize the Secretary to protect the confidentiality of certain information, including information 

that is culturally sensitive to Indian Tribes; 

(6) to increase the availability of Forest Service programs and resources to Indian Tribes in support of the 

policy of the United States to promote Tribal sovereignty and self-determination; and 

(7) to strengthen support for the policy of the United States of protecting and preserving the traditional, 

cultural, and ceremonial rites and practices of Indian Tribes, in accordance with Public Law 95-341 

(commonly known as the American Indian Religious Freedom Act; 42 U.S.C. 1996).

SEC. 8102. DEFINITIONS.

In this subtitle:

(1) Adjacent site.--The term ``adjacent site'' means a site that borders a boundary line of National Forest 

System land.

(2) Cultural items.--The term ``cultural items'' has the meaning given the term in section 2 of the Native 

American Graves Protection and Repatriation Act (25 U.S.C. 3001), except that the term does not include 

human remains.

(3) Human remains.--The term ``human remains'' means the physical remains of the body of a person of 

Indian ancestry.

(4) Indian.--The term ``Indian'' means an individual who is a member of an Indian Tribe.

(5) Indian Tribe.--The term ``Indian Tribe'' means any Indian or Alaska Native Tribe, band, nation, pueblo, 

village, or other community the name of which is included on a list published by the Secretary of the 

Interior pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 

(6) Lineal descendant.--The term ``lineal descendant'' means an individual that can trace, directly and 

without interruption, the ancestry of the individual through the traditional kinship system of an Indian 

Tribe, or through the common law system of descent, to a known Indian, the human remains, funerary 

objects, or other sacred objects of whom are claimed by the individual.

(7) National forest system.--The term ``National Forest System'' has the meaning given the term in section 

11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).

(8) Reburial site.--The term ``reburial site'' means a specific physical location at which cultural items or 

human remains are reburied.

(9) Traditional and cultural purpose.--The term ``traditional and cultural purpose'', with respect to a 

definable use, area, or practice, means that the use, area, or practice is identified by an Indian Tribe as 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

2008 Farm Bill Cultural and Heritage Cooperation Authority Provisions Appendix C-2

traditional or cultural because of the long-established significance or ceremonial nature of the use, area, or 

practice to the Indian Tribe.

SEC. 8103. REBURIAL OF HUMAN REMAINS AND CULTURAL ITEMS. 

(a) Reburial Sites- In consultation with an affected Indian Tribe or lineal descendant, the Secretary may 

authorize the use of National Forest System land by the Indian Tribe or lineal descendant for the reburial 

of human remains or cultural items in the possession of the Indian Tribe or lineal descendant that have 

been disinterred from National Forest System land or an adjacent site. 

(b) Reburial- With the consent of the affected Indian Tribe or lineal descendent, the Secretary may 

recover and rebury, at Federal expense or using other available funds, human remains and cultural items 

described in subsection (a) at the National Forest System land identified under that subsection. 

(c) Authorization of Use-

(1) IN GENERAL- Subject to paragraph (2), the Secretary may authorize such uses of reburial 

sites on National Forest System land, or on the National Forest System land immediately surrounding a 

reburial site, as the Secretary determines to be necessary for management of the National Forest System. 

(2) AVOIDANCE OF ADVERSE IMPACTS- In carrying out paragraph (1), the Secretary shall 

avoid adverse impacts to cultural items and human remains, to the maximum extent practicable.

SEC. 8104. TEMPORARY CLOSURE FOR TRADITIONAL AND CULTURAL PURPOSES. 

(a) Recognition of Historic Use- To the maximum extent practicable, the Secretary shall ensure access to 

National Forest System land by Indians for traditional and cultural purposes, in accordance with 

subsection (b), in recognition of the historic use by Indians of National Forest System land. 

(b) Closing Land From Public Access-

(1) AUTHORITY TO CLOSE- Upon the approval by the Secretary of a request from an Indian 

Tribe, the Secretary may temporarily close from public access specifically identified National Forest 

System land to protect the privacy of Tribal activities for traditional and cultural purposes. 

(2) LIMITATION- A closure of National Forest System land under paragraph (1) shall affect the 

smallest practicable area for the minimum period necessary for activities of the applicable Indian Tribe. 

(3) CONSISTENCY- Access by Indian Tribes to National Forest System land under this 

subsection shall be consistent with the purposes of Public Law 95-341 (commonly known as the 

American Indian Religious Freedom Act; 42 U.S.C. 1996).
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

2008 Farm Bill Cultural and Heritage Cooperation Authority Provisions Appendix C-3

SEC. 8105. FOREST PRODUCTS FOR TRADITIONAL AND CULTURAL PURPOSES. 

(a) In General- Notwithstanding section 14 of the National Forest Management Act of 1976 (16 U.S.C. 

472a), the Secretary may provide free of charge to Indian Tribes any trees, portions of trees, or forest 

products from National Forest System land for traditional and cultural purposes. 

(b) Prohibition- Trees, portions of trees, or forest products provided under subsection (a) may not be used 

for commercial purposes. 

SEC. 8106. PROHIBITION ON DISCLOSURE. 

(a) Nondisclosure of Information-

(1) IN GENERAL- The Secretary shall not disclose under section 552 of title 5, United States 

Code (commonly known as the `Freedom of Information Act'), information relating to--

(A) subject to subsection (b)(l), human remains or cultural items reburied on National 

Forest System land under section 8103; or 

(B) subject to subsection (b)(2), resources, cultural items, uses, or activities that--

(i) have a traditional and cultural purpose; and 

(ii) are provided to the Secretary by an Indian or Indian Tribe under an express 

expectation of confidentiality in the context of forest and rangeland research 

activities carried out under the authority of the Forest Service. 

(2) LIMITATIONS ON DISCLOSURE- Subject to subsection (b)(2), the Secretary shall not be 

required to disclose information under section 552 of title 5, United States Code (commonly 

known as the `[FOIA]), concerning the identity, use, or specific location in the National Forest 

System of--

(A) a site or resource used for traditional and cultural purposes by an Indian Tribe;

(B) any cultural items not covered under section 8103. 

(b) Limited Release of Information-

(1) REBURIAL- The Secretary may disclose information described in subsection (a)(l)(A) if, 

before the disclosure, the Secretary--

(A) consults with an affected Indian Tribe or lineal descendent; 

(B) determines that disclosure of the information--

(i) would advance the purposes of this subtitle; and 

(ii) is necessary to protect the human remains or cultural items from harm, theft, or 

destruction; and 

(C) attempts to mitigate any adverse impacts identified by an Indian Tribe or lineal 

descendant that reasonably could be expected to result from disclosure of the information. 

(2) OTHER INFORMATION- The Secretary, in consultation with appropriate Indian Tribes, may 

disclose information described under paragraph (1)(B) or (2) of subsection (a) if the Secretary 

determines that disclosure of the information to the public--

(A) would advance the purposes of this subtitle;

(B) would not create an unreasonable risk of harm, theft, or destruction of the resource, 

site, or object, including individual organic or inorganic specimens; and 

(C) would be consistent with other applicable laws.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

2008 Farm Bill Cultural and Heritage Cooperation Authority Provisions Appendix C-4

Forest Service Regulations: 36 CFR § 261.53 – Closures for traditional and cultural purposes (76 

Fed. Reg. 3015, January 19, 2011). 

§ 261.53 Special closures. When provided in an order, it is prohibited to go into or be upon any area 

which is closed for the protection of:

* * * * * 

(g) The privacy of Tribal activities for traditional and cultural purposes.

Closure to protect the privacy of Tribal activities for traditional and cultural purposes must be requested 

by an Indian Tribe; is subject to approval by the Forest Service; shall be temporary; and shall affect the 

smallest practicable area for the minimum period necessary for activities of the requesting Indian Tribe.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX D: SUMMARY OF SACRED SITES LISTENING SESSIONS
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-1

Summary of Sacred Sites Listening Sessions

From November 2010 through April 2011, 55 listening sessions were held with American Indian and 

Alaska Native (AI/AN) people and communities across the United States. Most of these sessions were 

in person; however, two nationwide telephonic listening session calls were also conducted. 

Combined, these sessions included more than 500 and possibly as many as 1,000 AI/AN participants. 

See Table 1 for dates and locations of each of the listening sessions. 

Participants included representatives of Federally Recognized Tribes, Alaska Native Corporations, 

other State- or nonfederally recognized groups, as well as AI/AN traditional practitioners, culture 

keepers, and spiritual leaders. In addition, 30 AI/AN individuals submitted comments via 

email/mail/phone communications. U.S. Department of Agriculture (USDA) Office of Tribal 

Relations staff and USDA Forest Service employees attended each individual listening session, 

including the nationwide telephonic listening session calls, scheduled meetings of inter-Tribal

organizations, large and small group meetings, and meetings with individual AI/AN Tribes. 

For each listening session, a facilitator, line officer, or staff member who attended summarized what 

was heard and then entered it into a database. Comments from individual emails and letters were also 

entered into this database. Using the transcripts and notes from the telephonic national listening 

sessions, as well as the summaries from in-person listening sessions held early in the process, the 

Triangle Associates, Inc., (Triangle) Team (as a neutral party) devised a coding system to analyze the 

content of each session. The Triangle Team reviewed the summary of each session and noted content 

as being consistent with themes heard to date, including new themes to be added, and/or including 

nuances to be added to existing themes. 

Those comments received from the listening sessions and email/mail correspondence that were 

specific to one sacred site or forest, or were specific to one event, were not included in this summary. 

However, these specific comments were noted in relation to the theme they referred to (such as 

confidentiality, access, etc.) and then were forwarded to the Tribal Relations Program manager or 

other relevant staff.

The USDA/Forest Service Team reviewed these themes for consistency with the listening sessions 

they had attended. These themes were also reviewed by the agency leads from the appropriate Forest 

Service region for consistency with the listening sessions they had organized and attended. 

Recommendations to address the comments from the listening sessions and those heard from other 

sources were developed by the teams conducting this review in collaboration with national and 

regional Forest Service staff. These recommendations are included in the “Acknowledgements and 

Recommendations” section in the main body of the report. 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-2

TABLE 1: SACRED SITES LISTENING SESSIONS DATES AND LOCATIONS

Region(s) Date Location

1. 1, 2, 3, 4, 5, 

6, 8, 9, 10

11/29/2010 National Listening Session Conference Call

2. 1, 2, 3, 4, 5, 

6, 8, 9, 10

02/14/2011 National Listening Session Conference Call

3. 1 05/27/2010 Confederated Salish & Kootenai Tribal Preservation 

Department Office, Pablo, MT

4. 2 02/22/2011 Ute Mountain Ute Tribal Hotel and Resort, Towaoc, CO

5. 2 03/10/2011 Wakpa Sica Reconciliation Center, Fort Pierre, SD

6. 2 03/11/2011 Mystic Ranger District, Black Hills National Forest 

(Medicine Wheel Coalition), Rapid City, SD

7. 3 02/09/2011 Yavapai Apache Cultural Center, Camp Verde, AZ

8. 3 02/18/2011 The Ft McDowell Recreation Center, Ft. McDowell, AZ

9. 3 02/23/2011 Zuni Tribal Cultural Preservation Office, Pueblo of Zuni, NM

10. 3 03/02/2011 Mescalero Tribal Office, Mescalero, NM

11. 3 03/04/2011 Santa Fe NF Supervisor's Office, Santa Fe, NM

12. 3 03/07/2011 Coconino National Forest Supervisor's Office, Flagstaff, AZ

13. 3 03/09/2011 Pueblo of Isleta offices, Isleta, NM

14. 3 03/11/2011 The Huhugam Heritage Center, Gila River Indian 

Community, Chandler, AZ

15. 3 03/11/2011 Santa Fe National Forest Headquarters, Santa Fe, NM

16. 3 03/11/2011 South Mountain Park and Preserve, Phoenix, AZ

17. 3 03/14/2011 Navajo Nation Museum, Window Rock, AZ

18. 3 03/15/2011 Coalmine Chapter, Tuba City, AZ

19. 3 03/16/2011 Shiprock Chapter House, Navajo Nation, Shiprock, NM

20. 3 03/16/2011 San Carlos Apache Tribal Court House, San Carlos, AZ

21. 3 03/16/2011 Kaibab Band of Paiute Indians Community Center, Pipe 

Springs, AZ

22. 3 3/17/2011 Hualapai Tribal Historic Preservation Office, Peach Springs, 

Arizona

23. 3 03/21/2011 Pueblo of Acoma Tribal Office, Acoma Pueblo, NM

24. 3 04/04/2011 Pueblo of Laguna Tribal Office, Laguna, NM

25. 4, 2 03/02/2011 Joint Tribal Council Board Meeting, Ft. Washakie, WY

26. 5 03/01/2011 The Garden Pavilion, 5640 Dudley Boulevard, Sacramento, 

CA

27. 5 03/04/2011 Natural Resource Conservation Services Building, Eureka, 

CA

28. 5 03/08/2011 San Bernardino National Forest, San Bernardino, CA

29. 5 03/17/2011 Pit River Tribal Community Center, Burney, CA

30. 6 02/25/2011 Sheraton Hotel Airport, Portland, OR 

31. 8, 9 04/05/2011 To Bridge A Gap Conference, Norman, OK

32. 8, 9 02/07/2011 Impact Week Meeting, Joint session of Culture & Heritage, 

and Natural Resources Committees, Arlington, VA

33. 9 02/03/2011 Voigt Inter-Tribal Task Force meeting, Lac du Flambeau, WI
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-3

TABLE 1: SACRED SITES LISTENING SESSIONS DATES AND LOCATIONS 

(CONTINUED)

Region(s) Date Location

34. 9 03/02/2011 Fond du Lac Tribal Center, Fond du Lac Reservation, MN

35. 9 03/09/2011 Great Lakes Visitor Center, Ashland, WI

36. 9 03/31/2011 Chippewa National Forest Headquarters, Cass Lake, MN

37. 10 11/22/2010 Organized Village of Kasaan Offices, Kasaan, AK

38. 10 12/14/2010 Cape Fox Corporation Cultural Resources Office, Ketchikan, 

AK

39. 10 01/07/2011 Central Council Tlingit Haida Indian Tribes of Alaska 

(CCTHITA) Office of the President, Juneau, AK

40. 10 01/07/2011 Sealaska Heritage Institute Offices, Juneau, AK

41. 10 01/12/2011 Angoon Community Building, Angoon, AK

42. 10 01/14/2011 Douglas Indian Association Office, Juneau, AK

43. 10 01/26/2011 Sitka Tribe of Alaska Office, Sitka, AK

44. 10 02/01/2011 Organized Village of Kake Tribal Office, Kake, AK

45. 10 02/03/2011 Yakutat Tlingit Tribe, Yakutat, AK

46. 10 02/09/2011 Dena'ina Convention Center, Anchorage, AK

47. 10 02/14/2011 Skagway Traditional Tribe Office, Skagway, AK

48. 10 02/15/2011 Chilkat Indian Village Office, Klukwan, AK

49. 10 02/15/2011 Chilkoot Tribal Office, Haines, AK

50. 10 02/18/2011 Metlakatla Indian Community Hall, Metlakatla, AK

51. 10 02/23/2011 Kasaan Café, Kasaan, AK

52. 10 02/25/2011 Ketchikan Indian Community Board Room, Ketchikan, AK 

(Session 1)

53. 10 02/25/2011 Ketchikan Indian Community Board Room, Ketchikan, AK 

(Session 2)

54. 10 03/01/2011 Petersburg Indian Association Office, Petersburg, AK

55. 10 03/07/2011 Hoonah Indian Association Board Room, Hoonah, AK

56. 10 03/10/2011 Wrangell Cooperative Association, Wrangell, AK
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-4

APPENDIX D (Continued)

SUMMARY OF WHAT WE HEARD: SACRED SITES LISTENING SESSIONS

LISTENING SESSION THEMES

In reviewing the range of themes heard during the listening sessions, the team conducting the review 

found three main categories of themes were heard:

1. The need for effective communications and relationships–Listening session participants 

described communication and relationships as foundational to the protection of sacred sites.

2. Authorities and tools available to the Forest Service–Listening session participants 

commented on existing law and policy and the impacts of these on the protection of and access 

to sacred sites. 

3. Application of authorities and tools through management activities–Listening session 

participants made suggestions on how agency management activities need to change to better 

protect sacred sites.

See below for descriptions of the range of themes heard from listening session participants in each of 

these categories.

1. The Need for Effective Communications and Relationships: 

Several themes emerged from the listening sessions that centered on the relationship between agency 

personnel and the appropriate AI/AN representatives with connections to each sacred site. This 

included requests for effective ongoing communications, agreements, and partnerships. Many 

listening session participants noted where it was not working, and others provided examples of 

working relationships, agreements, and partnerships.

a. Ongoing, effective communication and a commitment to relationships with AI/AN people 

and communities are required for the agency to gain a true understanding of what sacred 

sites mean to Tribes and other AI/AN people, and, therefore, to improve protection of 

sacred sites. This was the most common suggestion or comment heard throughout the listening 

sessions. Participants commented that ongoing, effective communications, information sharing, 

and a commitment to a working relationship was foundational to honoring the Federal trust 

responsibility. For example, “Develop a relationship with Tribal members; go to feasts that are 

open to the public to show that you are interested and not just looking for an official 

relationship.” Examples of comments included:

Forest Service leadership, officer, and staff turnover at the forest level significantly 

affects the quality of the Forest Service’s relationships with Tribes. Better policies need 

to be developed to involve Tribes during Forest Service leadership transitions to ensure 

that Memorandums of Understanding (MOUs) or other programmatic agreements 

continue. 

Many Tribal members and traditional practitioners lack modern communication tools 

such as email. Outreach efforts by the agency need to go beyond the use of information 

sent by email, posted online, and provided by telephonic listening sessions to include 

faxing, postal mail, and, most importantly, in-person meetings. 

The agency cannot rely on Federal Register notices as an effective means of 

communication as these notices are confusing and are difficult to access. 

Effective information sharing is a key component to consider for maintaining 

communications and relationships. 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-5

The annual “To Bridge a Gap” Conference offers a good model to maintain regular 

communications between Tribes and the Forest Service.

Quarterly or annual meetings with the State Historical Preservation Office, the Forest 

Service, and the interested Tribe were recommended to maintain good communications.

A range of agreements that support ongoing communications and regular meetings 

were noted as example models (see more on agreements under number 3 below).

b. Consultation with Tribes needs to be meaningful and in-person/face to face. We heard 

participants throughout the listening sessions consistently request that the agency conduct 

consultation much earlier in any process and in person with the appropriate decisionmakers 

from the agency. Tribes across the country noted their capacity to participate in consultation is 

overwhelmed due to the number of consultations currently underway with the Forest Service 

and other Federal agencies. The emphasis on consultation with decisionmakers was important 

to many Tribal participants as we heard that “Too often what was agreed to during consultation 

is not what is ultimately decided upon.” Examples of suggestions heard throughout the sessions 

included that:

Consultation should occur as early as possible in the development of a project, plan, or 

activity that may affect sacred sites. 

Consultation should include face-to-face communication with medicine people, 

spiritual leaders, elders, and with Tribes that do not reside on their aboriginal 

homelands. 

Each Tribe should have the opportunity to define how consultation is conducted with 

the agency. 

Consultation always needs to occur at the regional and local forest level as this will 

enable Tribes to develop relationships and the trust needed to discuss specific sacred 

sites issues. 

More advanced notice (i.e., 2 months) is needed to account for Tribal councils that meet 

infrequently.

Tribes need to be included very early in planning and decisionmaking processes, 

including involving Tribes before “scoping” under National Environmental Policy Act 

(NEPA) takes place.

Funding to support travel to and in some cases participation in consultation was 

requested by many participants.

c. The right Tribal or AI/AN people must be involved when discussing sacred sites. We 

heard from many listening session participants about the importance of the agency involving 

the “right” AI/AN people in discussions about activities that may affect sacred sites. They 

provided examples such as:

Communications and consultation that may include discussion of sacred sites should 

include more than Tribal governmental representatives. Involving Tribal spiritual 

leaders and elders in the sacred sites process is critical as many are not affiliated with a 

specific Tribal government.

Forest Service officials had consulted with the incorrect individuals about removal of 

remains from burial sites and other similar incidents. 

Forest Service staff must know and be prepared to work and consult with not only those 

Tribes physically located nearby the forest, but also those Tribes for which the forest 

was their aboriginal homeland.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-6

Members of Nonfederally Recognized Tribes requested that the agency create a formal 

process for how to provide access to sites for Nonfederally Recognized Tribes. 

All Tribes that use a sacred site should be represented in discussions.

“If the Federally Recognized Tribes in the area do not have an interest in a sacred site, 

there is no mechanism to ensure that the site is protected.” 

d. Collaborative working relationships/partnerships and cultural sensitivity are essential to 

the protection of sacred sites. We heard from many listening session participants about the 

importance of working relationships and partnerships with Tribes to provide for better 

protection of sacred sites. It was noted that this protection would more likely occur if agency 

staff had a better understanding of the meaning of sacred sites to AI/AN people (through 

cultural orientation or training provided by AI/AN people) and if AI/AN people were directly 

involved with the agency in sacred sites protection, interpretation, policy development, etc. 

Suggestions from participants included:

Co-development and co-presentation of cultural orientation and sensitivity training for 

agency line officers, staff, enforcement officers, volunteers, and concessionaires.

Advisory groups at the national, regional, and/or forest level to be comprised of Tribal

representatives and AI/AN traditional practitioners where appropriate to work in 

partnership with the agency on the development of sacred sites policy and procedures. 

Participation of the appropriate AI/AN people in the development of interpretation 

materials.

Training for AI/AN people on working with the Forest Service.

Increased opportunities for internships within the Forest Service for Tribal members.

AI/AN liaisons to help with public education and outreach including tours. 

Development of workshops about sacred sites and related laws such as Native 

American Graves Protection and Repatriation Act (NAGPRA).

Camps and other opportunities for AI/AN youth involvement.

Joint monitoring of sites to ensure protection.

e. Agreements between Tribes and the Forest Service are an important mechanism for the 

protection of sacred sites, but can also be a cause for concern. We heard from many 

listening session participants that MOUs or agreements between Tribes and the agency can 

serve to create and maintain stronger relationships and better communications. Several 

participants noted that the only way to determine what is sacred is in consultation with Tribes, 

which may require dialogue, programmatic, or other agreements, or MOUs. Agreements that 

outline co-management of sacred sites by Tribes and the Forest Service were requested by 

several participants. We also heard notes of caution from some participants that establishing 

MOUs can risk leaving out Tribes or other AI/AN people that should participate in discussions 

with the Forest Service. Examples regarding agreements included:

Requests for “co-management” agreements to protect specific sacred sites;

Information sharing agreements to protect confidentiality;

Models such as the California Historical Records and Information System; MOU 

regarding Tribal USDA Forest Service Relations on National Forest [System] Lands 

within the Ceded Territory in Treaties of 1836, 1837, and 1842; and 

Requests for agreements or permit processes to clarify and allow for access to sites for 

gathering or ceremonial purposes.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-7

f. Examples of successes and good relationships do exist between Tribes and the Forest 

Service at the local and regional level. Although we heard numerous requests for improved 

communications and relationships, we also heard from listening session participants about 

many examples of good relationships with line officers and other Forest Service staff at the 

local and regional level. Participants shared several models of how AI/AN Tribes and agency 

staff are maintaining good relations, including:

A quarterly Tribal forum for each forest to keep Tribes up-to-date with Forest Service 

activities.

A ceremony that acknowledged loss of cultural sites in Alaska in the 1900s helped to 

improve relations.

Specific examples of individual regional foresters, forest supervisors, and Tribal

relations program managers and liaisons who are working to communicate effectively, 

maintain good relationship with Tribes, and are actively working to protect specific 

sacred sites.

2. Authorities and Tools Available to the Forest Service:

We heard from numerous listening session participants about challenges with current Forest Service 

authorities or policies; for example, the agency’s “multiple-use” mission, the definition of sacred 

sites, and processes to maintain confidentiality. Participants also noted current laws and policies that 

are not being used effectively to help protect sacred sites, or they are written in such a way to 

prevent protection of sacred sites. 

a. The Forest Service “multiple-use” mission does not align with the protection of sacred 

sites. We heard throughout the listening sessions that participants questioned the ability of the 

Forest Service to protect sacred sites while maintaining the current multiple-use mission. 

Economic valuation of resources was viewed as central to the Forest Service mission and 

inconsistent with considering spiritual or cultural values.

b. The definition of what a sacred site is needs to be revisited/clarified/changed to reflect 

AI/AN perspectives. Throughout the listening sessions, we heard from AI/AN people that the 

definition of a sacred site needs be revisited and revised. In particular, we heard that the 

definition needs to reflect that sacred sites are often not specific locations with boundaries. 

Instead, they should be viewed as “cultural landscapes” that are more than just their physical 

location—they also include plants, animals, sound, light, and other sometimes intangible 

features. Example comments included:

The United States should continue to support the United Nations Declaration on the 

Rights of Indigenous Peoples as a way to demonstrate support for this broader concept 

of protection of sacred sites. 

Sacred sites are not related to “religion” as understood under the First Amendment to 

the U.S. Constitution, but instead as integral to AI/AN culture.

Sacred sites include “living resources” that the National Historic Preservation Act 

(NHPA) does not recognize.

Executive Order (E.O.) 13007 on sacred sites needs to be revised to incorporate a much 

broader AI/AN perspective of sacred sites.

c. Specific laws or policies were noted as either not being utilized effectively by the agency 

to protect sacred sites or are preventing effective protection of sacred sites. 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-8

We heard throughout the listening sessions about several examples of current laws and policies 

that are available to the agency that could be used more effectively to help protect sacred sites. 

Additionally, some type of “accountability” was suggested so that there is some consequence if 

agency personnel do not use available tools to protect sacred sites.

Examples of law and policy perceived as underutilized included:

2008 Farm Bill provisions for confidentiality, reburial, and land closures (see more 

under number 2d below).

The NEPA.

Incorporation of sacred sites protection in forest planning.

The American Indian Religious Freedom Act.

Even if a land management action is excluded from environmental analysis under 

NEPA, other laws may require the agency to consult before taking action. For 

example, Section106 of the NHPA requires consultation if a proposed action might 

affect cultural resources. 

Archaeological Resources Protection Act (ARPA).

NAGPRA.

Permits to allow for gathering traditional plants.

Additionally, numerous laws or policies were noted as written in a way that prevents or limits 

the protection of sacred sites. Examples included:

1872 Mining Act was the law most often mentioned as preventing protection of sacred 

sites.

The Arizona-Idaho Conservation Act.

E.O. 13007 is not written in a way that adequately defines what is sacred to AI/AN 

people.

AIRFA/RFRA should strengthen “Substantial Burden” as it relates to line officers.

The Tribal Forest Protection Act, which does not place enough responsibility for 

protection of sacred sites on the Forest Service. 

Antiquities Act.

Changing definitions in NAGPRA.

The National Forest Management Act.

Forest Service Facility Realignment and Enhancement Act.

The current proposed revisions to the regulations implementing the National Forest 

Management Act or “Planning Rule.”62

Traditional Cultural Properties do not qualify for protection. 

Special use permit processes that allow for “non-Natives [that] easily take artifacts 

from identified sacred sites...”

d. Confidentiality, reburial, and other specific provisions of the 2008 Farm Bill related to 

sacred sites need to be clarified. We heard from a wide range of Tribes and traditional 

practitioners alike about confidentiality, reburial, and other concerns that could be better 

addressed using provisions of the 2008 Farm Bill (including Sections 8103 on Reburial on 

 

62 National Forest System Land Management Planning; Proposed Rule, 70 Fed. Reg. 8480 (proposed Feb. 14, 2011) (to be 

codified at 36 CFR pt. 219).
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-9

Forest Service land, 8104 on Temporary Closure of Forest Service Land for Traditional or 

Cultural Purposes, and 8106 on the specific Freedom of Information Act exemption preventing 

release of Tribal confidential information). In particular, we heard from many participants that 

were concerned or unwilling to share information with the Forest Service because information 

had not be kept confidential in the past, or they did not trust that the information would be kept 

confidential. Examples of comments regarding confidentiality included:

Issues with confidentiality that have occurred due to a misinterpretation or failure to 

implement nondisclosure provisions about sensitive sacred sites information. 

Identification and inventories of sacred sites was challenging for many Tribes due to 

cultural practices. For example, for some Tribes, an individual who provides 

information about a site or sacred resource may no longer be allowed to access it. 

Maintaining confidentiality is an essential part of the Federal trust responsibility. 

Specific examples of confidentiality with geographic information system data and 

intellectual property.

The Forest Service volunteer stewardship program was a cause for concern as it is 

unclear what kind of information or training volunteers receive about sacred sites.

Formal or informal information sharing during consultation needs to be considered 

confidential.

Cooperative agreements like MOUs may be beneficial to help increase trust and 

understanding for sacred site confidentiality. 

The confidentiality provisions under NHPA were noted as a model for protecting 

confidential information in some cases.

e. Sacred sites policy should be consistent across Federal land management agencies. We 

heard that many participants are frustrated with the wide range of inconsistent policy for the 

protection of sacred sites across Federal agencies. Participants requested that Federal agencies 

and land management agencies, in particular, have a consistent policy for protection of and 

access to sacred sites. Additionally, listening session participants noted that on large 

developments that require multiagency permitting, Federal agencies need to collaborate 

together in order to have a blanket policy with respect to consultation with Tribes.

f. Use of Traditional Ecological Knowledge can be a tool to benefit the protection of sacred 

sites. We heard from several listening session participants that inclusion of traditional 

ecological knowledge along with western science would be a helpful mechanism for creating a 

balanced approach to protecting sacred sites. 

g. Ownership issues regarding sacred sites were noted by participants as a barrier to the 

protection of sacred sites. We heard several examples of ownership issues in relation to 

AI/AN perspectives of land ownership. Comments included:

“Nobody owns the land; it is everyone’s obligation to care for it. It is not just the 

responsibility of Tribes to care for the land and specifically sacred sites; it is everyone’s 

responsibility.” 

Although Tribes may not own the land, they do not want their access to the resources 

on the land to be restricted. 

It is difficult to effectively protect sites that span multiple land ownership boundaries.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-10

Sacred sites and artifacts should be Native owned.

3. Application of Authorities and Tools Through Agency Management Activities: 

We heard from many listening session participants about the impacts of land management activities, 

enforcement, and decisionmaking on sacred sites protection and access. In particular, activities 

related to archeology, mining, energy development, and wildfire management were noted as needed 

changes. 

a. Participants noted many examples of Forest Service activities and decisions that they felt 

have destroyed, desecrated, or negatively impacted sacred sites directly. These examples 

were noted as limiting the ability of AI/AN people to trust the Forest Service to protect sacred 

sites. Examples included:

Impacts to sacred mountains.

Impacts to burial sites.

Removal of buildings or other structures.

Altering sacred aspects of the land and landscape including loss of plants and animals.

Impacts of development activities such as oil and gas, mining, and ski areas.

Loss of views and other “intangible” elements of sacred sites.

b. Consider appropriate roles for archaeology activities and staff. We heard from a wide 

range of listening session participants that Forest Service or consultant archaeologists cannot 

determine whether sites are sacred or not. Only the appropriate AI/AN people can do this. 

Several examples were provided by listening session participants, including:

Forest Service archaeologists and heritage specialists need to work closely with Tribal

archaeologists, traditional practitioners, elders, or ethnographers when accessing or 

researching sacred sites—agreements need to be established to ensure this happens. 

Traditional consultants, such as Tribal archeologists, should be included in Forest 

Service project analyses and compensated for their particular and specific knowledge 

and skills as it relates to sacred sites. 

All of the appropriate Tribes should be consulted before conducting any archaeological 

studies.

Tribes have encountered difficulty engaging with forests on ARPA permits and 

acquiring data related to the permits.

The NHPA defines a historic property to be 50 years old. This needs to be revisited 

because of the contemporary use of many sacred sites by Tribes.

c. Wildfire management/wildfire suppression activities affecting sacred sites. We heard that 

wildfire suppression activities have been conducted by the Forest Service in a manner that has 

severely impacted sacred sites. Participants requested better coordination between Tribes and 

firefighters to protect sacred sites before, during, and after wildfires. Additionally, participants 

told us that the use of fire retardants and pesticides on forests have caused health issues to 

AI/AN people using sacred sites.

d. Better coordination on energy development and transmission projects between Tribes, 

agencies, States, and companies needs to occur in order to protect sacred sites. We heard 

from participants that Forest Service districts need to have more authority in collaborating and 

consulting with Tribes on energy development projects that affect sacred sites. For example, 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-11

the Forest Service needs to work with geothermal and power line companies to protect sacred 

sites. 

e. The Navajo Nation v. Forest Service, involving the San Francisco Peaks in Northern 

Arizona (also known as “Snowbowl”), has impacted the protection of sacred sites 

generally and the protection of sacred mountains specifically, such as Mt. Tenabo, Mt. 

Graham, Mt. Taylor, and others. Listening session participants were deeply concerned about 

the impacts of the San Francisco Peaks case on the protection of other sacred mountains 

(including Mt. Tenabo, Mt. Graham, and Mt. Taylor) and other sacred sites. In particular, 

participants felt that this case demonstrated that the Forest Service valued development 

interests over cultural and spiritual values. Listening session participants:

Requested an analysis of the implications and precedent set by the San Francisco Peaks 

decision and the type of consultation that was conducted leading up to the lawsuit. 

Provided examples of contamination of ceremonial and household water resources, 

including uranium mining and artificial snowmaking using reclaimed water at 

Snowbowl. 

Recommended that hydrologic and geologic studies be performed on a regional basis. 

f. Land management activities and policies often restrict access for Tribes and traditional 

practitioners. We heard many examples where access was noted as critical to continue 

gathering, conducting ceremonies, or maintaining cultural traditions. For example, participants 

said “We are concerned about access to the forest to obtain materials like fir trees for tee pee 

poles and oak brush to construct arbors for ceremonies. Thinning and landscape treatment 

projects do not take into account the need for these materials.” Additionally, wilderness area 

rules and the Wilderness Act often do not take into account Tribal gathering needs. For 

example, road closures and wilderness area designations can restrict access to sacred sites for 

elders.

g. Enforcement and monitoring to prevent tampering and other inappropriate activities 

around sacred sites are needed. We heard many listening session participants describe 

examples where monitoring and enforcement were not happening, or not happening enough. 

Listening session participants requested increased monitoring and enforcement, in partnership 

with Tribes, to better protect sacred sites. For example, it was recommended that the Forest 

Service cross-deputize Tribal enforcement officers to assist with sacred sites protection.

h. Land transfers were noted as having the potential to support or limit protection of sacred 

sites. We heard that land transfers from private to public land can help to facilitate Tribal

access to sacred sites located on Forest Service lands. Land transfers from public to private 

ownership need to include consultation with Tribes because of the possibility that burial 

locations or sacred sites located on Forest Service-managed lands might transfer into private 

ownership. 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Sacred Sites Listening Sessions Appendix D-12

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USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX E: SUMMARY OF FOREST SERVICE EMPLOYEE COMMENTS
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Forest Service Employee Survey Responses Appendix E-1

SUMMARY OF FOREST SERVICE EMPLOYEE COMMENTS: INITIAL SURVEY AND 

COMMENTS ON DRAFT

As part of the listening effort, the team conducting the sacred sites review developed a survey for 

Forest Service employees, focusing on line officers and Tribal relations specialists. The survey posed 

13 questions, covering topics such as the definition of sacred sites, programs and planning, and 

requested sharing what respondents hear from Tribes about the Forest Service’s ability to protect 

sacred sites. The questions are listed in the box below. More than 140 people responded to the initial 

survey, representing 52 national forests and grasslands. The results are summarized below.

Following the publication of the Draft Report to the Secretary, Tribal consultation and public 

comment, the team conducting this review once again reached out to line officers for their feedback 

on the process and contents of the Draft Report. During the month of December 2011, the team 

conducted interviews with a cross-section of about 50 line officers at all levels of the organization 

and from all areas of the United States. Those participating in phone interviews were asked if their 

concerns had been adequately addressed. The summary of their comments on the Draft Report

follow the initial responses from the survey and include their thoughts, suggestions, concerns, and 

overall level of satisfaction with the Draft Report.

QUESTIONS FROM INITIAL FOREST SERVICE EMPLOYEE SURVEY ON 

SACRED SITES

1. Please describe your understanding of what a sacred site is and what this understanding is based on.

2. What tools have you used to accommodate or protect American Indian or Alaska Native sacred sites

on your unit? (Which laws, treaties, policy, programs, etc.) 

3. Do you have any existing sacred site management plans or designations on your unit, or does your 

forest plan include sacred sites standards and guidelines?

4. Do you have any existing sacred site management plans or designations on your unit, or does your 

forest plan include sacred sites standards and guidelines?

5. Has this plan or designation served to successfully protect sacred sites? If so, what led to that success?

6. Do you have specific agreements or other instruments that guide your work with tribes on issues 

around sacred sites (as a reminder, sacred sites may include traditional cultural properties, national 

historic districts, ceremonial landscape, etc.)? 

7. Please describe your approach to consultation with tribes including timing of consultation.

8. If you developed relationships with tribes that have led to successful sacred sites protections, please 

describe your approach to the relationship and the example of success.

9. Please share the perspectives you have heard over the last several years from tribes about the Forest 

Service’s capability to protect sacred sites. 

10. From your perspective, does your unit have the knowledge and capability to protect sacred sites? 

Please explain.

11. Do you have the information you need to understand sacred sites issues? To appropriately 

accommodate or protect sacred sites? If not, what kind of information would be helpful to you? 

12. What barriers have you experienced with respect to protection of sacred sites?

13. What are your recommendations for changing or improving any policies, procedures, laws or 

regulations that would lead to a consistent level of protection of sacred sites, including identification, 

access, and protection, to meet the intent of E.O. 13007?
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Forest Service Employee Survey Responses Appendix E-2

Definition: The definition of a sacred site given by respondents was wide ranging. Those who 

indicated experience working directly with Tribes and Tribal governments tended to define sacred 

sites in broad terms such as landscape, mountains, areas, resources, regions, lineal features, 

viewsheds, etc., and did not refer to the narrow, specific delineation definition of E.O. 13007. Many 

recommended that the Executive order definition be changed to give flexibility to define a sacred site 

in concert with the Tribes with which they work. Those with little or no experience working with 

Tribes tended to only use the strict definition of the Executive order, and frequently relied on heritage 

program designations in their definition, and subsequent discussions. 

Relationships: Those who have endeavored to protect a sacred site or special area stressed 

universally that having and maintaining relationships is the most critical tool. Relationships were 

described as extending beyond formal Government-to-Government relations, to daily relationships 

that enrich the individuals involved. When the Forest Service has been unable to provide the 

protection Tribes expect, the damage to relationships can last a very long time. People know there 

are many tools for strengthening relationships and have used many creative approaches in 

consultation with AI/AN Tribes, some with mixed success.

Forest Planning: With 52 forests represented by survey respondents, it appears that the Forest 

Service nationwide has rarely considered sacred sites in its past planning documents required under 

the National Forest Management Act and does not have many specific provisions for sacred sites

protection in current forest plans. Several forests are pursuing language that would recognize sacred 

sites, and set standards and guidelines in ongoing forest plan revision efforts, as well as through 

associated processes such as amendments, special designations, and other planning avenues. Of those 

forests that have plan provisions protective of sacred sites, the sites are fairly discrete, although some 

noted were quite large. Examples included linear trails running hundreds of miles, such as the Trail 

of Tears and Nez Perce Trail, or a lake basin. Most forest plan provisions noted by respondents that 

are protective of sacred sites were for sites that are relatively small, for example, a dance house or a 

camas meadow. Those who use traditional cultural properties as a protection mechanism struggle 

with defining the scale and boundary.

Consultation: Many national forests follow a structured consultation process with concerned Tribes, 

varying from annual to quarterly meetings, with forest supervisors, with rangers, and staff to staff. 

Some respondents participate in multiforest, multi-Tribe meetings where it is expedient for both 

parties. Employees stated that face-to-face consultation is most valuable for them and Tribes. Most 

people understand that good relationships are what lead to effective consultation. Respondents also 

clearly understand the time commitment involved with true relationships and meaningful

consultation. Only a small number of respondentsdid not know about consultation processes or did 

not have any specific protocol for consultation on their unit. Rarely were scoping letters, required as 

part of a National Environmental Policy Act (NEPA) analysis, the only approach. Most respondents 

combined annually scheduled rounds of meetings and consultation with information sharing and 

discussion of the Schedule of Proposed Actions (also required as part of the agency’s responsibilities 

under NEPA).

Tribal Views: In response to the question about Tribal views of Forest Service efforts to protect 

sacred sites, many respondents shared that Tribes do not trust the Forest Service. Several commented 

that AI/AN Tribes think the Forest Service does not have the willingness to protect sacred sites, and 

the 1872 Mining Law has left many AI/AN Tribes wary of the agency’s legal ability to follow 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Forest Service Employee Survey Responses Appendix E-3

through on any stated commitment to protect sacred sites. Some reported frustration from AI/AN 

Tribes that we do not seem to understand what they are telling us. “They struggle to respond to 

requests for site-specific effects to a sacred site since sacred sites generally are believed to exist at a 

broader landscape scale.”

San Francisco Peaks/Arizona Snowbowl: Southwest Region (Arizona and New Mexico) 

respondents, and those nearby, acknowledged that relationships across the geographical region have 

been compromised. “They do not believe we do a good job, especially given the decision to move 

forward on the Arizona Snowbowl proposal. As a result, they don't believe our ‘consultation’ efforts 

are sincere, and that we are really listening to their concerns about an area.” 

Capability: When asked if they feel prepared to address sacred sites, approximately 40 percent of 

respondents believed the agency has the knowledge and capability. Notably, several referenced 

specific training or experience that gives them this confidence. Some respondents stated they rely on 

staff, a Tribal liaison, or an archeologist to ensure consistent relationships. There are those, however, 

who are cautious and recognize their own lack of knowledge and understanding. Several people 

advocated more training in cross-cultural communication, cultural sensitivity, and Tribal law. 

Barriers: Internally, capacity remains a strong concern when it comes to program management, 

protection, monitoring, and enforcement. Other perceived barriers included the 1872 Mining Law. 

Several respondents noted conflict with the agency mission. Most respondents recommended 

clarification of definitions, policy, and support for decisionmakers. Many requested more training, 

beginning earlier in their career. Some recommended more “teeth” in existing law. Other challenges 

noted included funding, definition of sacred sites, accountability, the agency’s multiple-use mandate, 

meeting Tribal and Secretarial intent, Tribal site identification issues, and cultural differences.

Recommendations: Respondents requested more personnel, funding, training, permanent full-time 

duties for Tribal liaisons, and greater enforcement capacity. Other personnel responding challenged 

themselves to form better relationships, work more collaboratively with Tribes, and ensure good 

communication internally, as well as externally, all at the local level. 

Considered alongside Tribal and other AI/AN input from the listening sessions (appendix D, above), 

it is noteworthy that many observations, concerns, and recommendations are very closely aligned. 

Most notable is the agreement between Tribes and Forest Service employees to better define sacred 

sites in E.O. 13007. Strong synergy also exists between AI/AN and Forest Service employees’ 

concerns and recommendations related to training, relationships, and consultation.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Summary of Forest Service Employee Survey Responses Appendix E-4

SUMMARY OF COMMENTS FROM LINE OFFICER INTERVIEWS ON DRAFT REPORT, 

DECEMBER 2011

All line officers who participated in the survey felt the Draft Report did a good job of covering their 

concerns. Several noted that it was an honest assessment of what was heard from Tribes and 

employees. There was encouragement to be bold and truly represent the issue and its importance. 

Accountability: Some expressed several concerns related to accountability. Others requested 

direction and training, crosswalk materials, and other forms of guidance. They are supportive and 

wish to be accountable, but are concerned due to the lack of specificity, direction, and implementation 

guidance contained in the Draft Report. They are anxious to see the details.

Sacred Places: Some were concerned about the term “sacred places.” They report that Tribes have 

been pleased with this expanded definition, but some employees working “on the ground” are 

concerned about the definition, as well as the current lack of direction or guidance for implementing 

this recommendation. 

Capacity and Resources: There remains a great concern over capacity and resources. Some 

expressed concerns that their capacity, and that of Tribes, has already become overly taxed. 

Enforcement capacity within the agency is a concern. Still, all line officers continue to emphasize 

that their relationships with Tribes are the key to success.

Training: There was broad support for the training recommendations. Some asked that training be 

developed for all levels of the organization. Others expressed strong support to provide training early 

in a Federal employee’s career. 

Hiring: There were several comments encouraging a more proactive recruitment program to attract 

and retain AI/AN individuals in the workforce.

Flexibility: Some indicated that they were pleased with the flexibility provided to line officers to 

implement the recommendations within the Draft Report in a way that worked for the individual 

Tribes and forests, and they encouraged the authors to retain that flexibility in the Final Report. 

Implementation: The line officers’ primary concern is how feasible it will be to consistently 

implement the recommendations of the Final Report. They strongly encourage the development of 

guidance materials and direction and development of appropriate training and delivery in order to 

ensure successful implementation. They suggest that the agency engage with Tribes to develop and 

participate in training about any new policies, to ensure all are working from the same set of 

expectations.
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APPENDIX F: SELECTED COURT DECISIONS
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS

Selected Court Decisions Appendix F-1

Selected Court Decisions: Annotated Listing of Significant Court Decisions Relating to Federal 

Land Management and American Indian/Alaska Native Sacred Sites

Fortune v. Thompson, No. 09-98, 2011 U.S. Dist. LEXIS 5343 (D. Mont. Jan. 20, 2011).

The Forest Service adopted a travel management plan (TMP) for a portion of the Badger-Two 

Medicine area, encompassing 130,000 acres of the Lewis and Clark National Forest. The TMP 

substantially prohibited motorized use within the area, closing all but roughly 8 miles to motorized 

use and prohibiting snowmobile access in Badger-Two Medicine entirely. One of the reasons given 

for the motorized use restrictions was to mitigate interference with religious practices of the 

Blackfeet, and a Traditional Cultural District within the area. Motorized user groups and individual 

recreationists sued, claiming the decision unduly favored the AI/AN religion in violation of the 

Establishment Clause of the United States Constitution. Using the test set forth in Lemon v.

Kurtzmann, the Court held that the plan did not run afoul of the Establishment Clause because the 

prohibition was entered for a secular purpose; its principal effect neither advances nor inhibits 

religion; and there is no “excessive entanglement” with religion resulting from enactment of the 

TMP. The Court emphasized that the TMP set forth “a host of secular purposes, including benefits 

to air quality, water quality, soil quality, wildlife habitat, and fish habitat. Consideration was also 

given to the Traditional Cultural District located within Badger-Two Medicine and to resources 

governed by the [NHPA], 16 U.S.C. § 470f.” Even if the Forest Service's consideration and decision 

were enacted in part to mitigate interference with the Blackfeet's religious practices, the Court found 

that this objective alone did not signify a constitutional violation.

Quechan Tribe v. United States Department of the Interior, No. 10-2241, (S.D. Cal. 

filed Dec. 15, 2010). 

In this case involving the Bureau of Land Management’s (BLM’s) decision to approve a 

programmatic agreement authorizing an array of solar collection panels and associated transmission 

lines on lands managed by the BLM located within the Imperial Valley in California, the Court 

issued a preliminary injunction halting the project, finding that the plaintiff, Quechan Tribe, was 

likely to prevail on its claim that the BLM failed to adequately consult with the plaintiff under 

section 106 of the National Historic Preservation Act (NHPA). The Quechan Tribe claimed, and 

environmental analyses indicated, that the project would wholly or partially destroy archeological 

sites, cultural resources, prehistoric areas of settlement and use, ancient trails, and burial areas within 

the 6,500-acre project area. After a thorough analysis of the documentation provided by BLM 

supporting its claims that it adequately consulted with the Quechan and other AI/AN Tribes, the 

Court noted the following:

“While public informational meetings, consultations with individual Tribal members, 

meetings with government staff or contracted investigators, and written updates are 

obviously a helpful and necessary part of the process, they don’t amount to the type of 

“Government-to-Government” consultation contemplated by the regulations. This is 

particularly true because the Tribe’s government’s requests for information and meetings 

were frequently rebuffed or responses were extremely delayed as BLM-imposed deadlines 

loomed or passed.”
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Selected Court Decisions Appendix F-2

“The Tribe was entitled to be provided with adequate information and time, consistent with 

its status as a government that is entitled to be consulted. The Tribe’s consulting rights 

should have been respected. It is clear that did not happen here.”

“The Ninth Circuit has emphasized that consultation with Tribes must begin early, and that if 

consultation begins after other parties may have invested a great deal of time and money, the 

other parties may become entrenched and inflexible, and the government agency may be 

inclined to tolerate degradation it would otherwise have insisted be avoided.... [T]he fact that 

[Defendants] are now pressed for time and somewhat desperate after having invested a great 

deal of effort and money is a problem of their own making and does not weigh in their 

favor.”

Te-Moak Tribe v. United States Department of the Interior, 608 F.3d. 592 (9th Cir. 

June 18, 2010). 

This case involved the Bureau of Land Management’s (BLM’s) approval of expanded mineral 

exploration activities in the plan of operations for an existing project, the Horse Canyon/Cortez 

Unified Exploration Project area in northeastern Nevada. According to the Ninth Circuit’s published 

opinion, “According to their oral history, Te-Moak and other Western Shoshone Tribes have 

inhabited this area since time immemorial, and their religion and culture is inextricably linked to the 

landscape of the area. The project area is located on their ancestral lands. Mount Tenabo, located 

within the project area, is considered a traditional locus of power and source of life for the Western 

Shoshone, and figures in creation stories and world renewal...The project area also contains many 

pinyon pine trees, a source of pine nuts that ...remain a focal point of Western Shoshone culture and 

ceremony...the ancestors of the Western Shoshone are likely buried throughout the project area.”63

The Tribe and others sued the BLM claiming various violations of National Environmental Policy Act 

(NEPA), the National Historic Preservation Act (NHPA), and the Federal Land Policy and 

Management Act (FLPMA). The Ninth Circuit held that the BLM violated NEPA's mandate by 

failing to conduct a proper analysis of the cumulative impacts of the project and other nearby 

reasonably foreseeable mining and energy projects on Western Shoshone cultural resources in the 

area. The Court found in Defendants’ favor regarding Plaintiffs’ claims that BLM violated NHPA 

(BLM’s consultation with Te-Moak was adequate and its finding of “no effect” to certain cultural 

resources was not in error) and FLPMA (information BLM required from mining companies was 

sufficient for exploratory plan of operations and lack of specific drill site information was 

permissible at this stage).

Navajo Nation v. United States Department of Agriculture. 535 F.3d 1058 (9th Cir. 2008) (en 

banc). 

Located on the Coconino National Forest in Northern Arizona, the San Francisco Peaks are sacred to 

at least 13 Tribes and many other AI/AN people and communities in this area and elsewhere. The 

Forest Service authorized the use of reclaimed wastewater for snowmaking and other purposes on 

 

63 One commenter on the Draft Report sent extensive transcripts of hearing and deposition testimony before the Nevada 

District Court in an apparent attempt to dispute the quoted statement here. The team developing this report received and 

considered these comments and acknowledges the apparent disagreement with the Ninth Circuit’s finding. This 

appendix summarizes court opinions, and the quoted statement is taken directly from a published opinion of the Ninth 

Circuit. 
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Selected Court Decisions Appendix F-3

the Snowbowl ski area. The Ninth Circuit, sitting en banc, upheld the Forest Service’s approval of 

the use of reclaimed wastewater for snowmaking purposes at Snowbowl Ski Area, reversing the 

decision of the three judge Ninth Circuit panel in this case. The majority held that the Forest 

Service’s decision did not violate the Religious Freedom Restoration Act (RFRA) or impose a 

“substantial burden” on the exercise of religion by AI/AN peoples. The Court found that the use of 

recycled waste water neither coerced plaintiffs to act contrary to their religious beliefs under a threat 

of sanctions, nor conditioned a valuable government benefit upon conduct which would violate their 

religious beliefs. Specifically, the en banc panel’s majority determined that “no plants, springs, 

natural resources, shrines with religious significance, nor ... religious ceremonies...would be 

physically affected” by the use of the reclaimed wastewater. Three judges dissented, stating that the 

majority “misstates the evidence ..., misstates the law under the RFRA, and misunderstands the very 

nature of religion.” The U.S. Supreme Court declined to review the Ninth Circuit’s en banc 

decision. 

Access Fund v. United States Department of Agriculture, 499 F.3d 1036 (9th Cir. 2007). 

The Forest Service determined that Cave Rock, a particularly important feature to the culture and 

religion of the Washoe Tribe, was eligible for protection as a traditional cultural property and 

archaeological site. Cave Rock was also an important historic travel corridor. The agency noted 

these and other factors in developing a management plan for the feature, and adopted an alternative 

that included a permanent closure from rock climbing in its decision. The Forest Service 

emphasized, in connection with a discussion of social practices and civil rights in the Final 

Environmental Impact Statement (FEIS) for the management plan, “[t]he fact that traditional history 

and culture at Cave Rock are sometimes discussed in religious terms does not diminish the site’s 

historical or cultural significance to the Washoe people.” The agency’s plan decision prohibited rock 

climbing on Cave Rock, and the Access Fund, a rock climbing advocacy group, sued, claiming the 

Forest Service had violated the Establishment Clause of the Constitution. While recognizing 

climbers as an important social group that values the rock, the court noted the agency’s decision 

served the goal of protecting environmental, historical, and cultural resources. The three-judge panel 

also emphasized the strong record and documentation assembled by the Forest Service. The Ninth 

Circuit rejected Access Fund’s contention that the ban on climbing would lead to excessive 

governmental entanglement with religion, due to the enforcement activities in which the Forest 

Service would have to engage. Instead, the court held that “[r]outine administrative or compliance 

activities do not constitute impermissible interference of . . . secular authorities in religious affairs.” 

The court distinguished two cases cited by plaintiffs involving voluntary bans and temporary 

closures and upheld the Forest Service’s decision. In doing so the court relied on Cholla Ready Mix

(see below) and concluded "the fact that Cave Rock also derives its historical and cultural force in 

part from its role in Washoe religious belief and practice does not counsel the conclusion that the 

Forest Service acted with the purpose of advancing religion."

http://www.fs.fed.us/r5/tribalrelations/dat/caverock/appeals/accessfund.pdf

Cholla Ready Mix v. Civish, 382 F. 3d 969 (9th Cir. 2004).

The Ninth Circuit Court of Appeals issued a decision upholding the State of Arizona's policy against 

use of material mined from Woodruff Butte, a site sacred to Tribes, against a challenge alleging that 

the policy violated First Amendment’s Establishment Clause. In its analysis, the Court focused on 

the basis for protection of Indian Tribes' sacred sites: 
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Selected Court Decisions Appendix F-4

Because of the unique status of Native American societies in North American history, 

protecting Native American shrines and other culturally-important sites has historical value 

for the nation as a whole, much like Greece's preservation of the Parthenon....Similarly, 

because of the central role of religion in human societies, many historical treasures are or 

were sites of religious worship. The Establishment Clause does not require governments to 

ignore the historical value of religious sites. Native American sacred sites of historical value 

are entitled to the same protection as the many Judeo-Christian religious sites that are 

protected on the National Register of Historic Places, including the National Cathedral in 

Washington, DC; the Tuoro Synagogue, America's oldest standing synagogue; and numerous 

churches that played a pivotal role in the Civil Rights Movement.

The Ninth Circuit decision recognized the legal basis for governments to take affirmative steps to 

protect sites considered sacred to Tribes without violating the United States Constitution's 

Establishment Clause. The decision acknowledges the cultural and historical significance of sacred 

sites as a legitimate basis for extending protection to such sites, and affirms that Tribal sacred sites 

can and do have importance to the Nation as a whole, in addition to the Indian Tribes that consider 

them sacred.

Bear Lodge Multiple Use Association v. Babbitt, 2 F. Supp. 2d 1448, 1456 (D. Wyo. 1998), aff’d 

on other grounds, 175 F.3d 814 (10th Cir. 1999).

This case initially involved a challenge to a National Park Service (NPS) decision not to issue 

commercial rock climbing permits at Devil’s Tower during the month of June out of respect for the 

reverence many American Indians hold for Devil’s Tower as a sacred site. The U.S. District Court 

for the District of Wyoming (D. Wyo.) issued a preliminary injunction against the NPS’s action, 

finding that the plaintiffs were likely to prevail on their claim that withholding of commercial rock 

climbing permits impermissibly promoted religion in violation of the Establishment Clause. The 

NPS then revoked the commercial climbing ban.

The plaintiffs pressed forward with their claim that NPS’ request that climbers voluntarily refrain 

from climbing Devil’s Tower during June was an Establishment Clause violation. The district court 

upheld the voluntary ban, finding that it was a permissible accommodation, not an impermissible 

promotion, of religion under the Establishment Clause. 

Rupert v. Director, United States Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992) 

Plaintiff, pastor of a church comprised of non-Indians, brought suit against the U.S. Fish and 

Wildlife Service challenging regulations providing an exemption for Federally Recognized 

Indian Tribes from the criminal prohibition on possession of eagle feathers under the Bald 

Eagle Protection Act. The plaintiff alleged that the act's exemption for Indian Tribes to 

possess eagle parts for religious purposes violated the Establishment Clause of the 

Constitution by creating a preference for American Indian and Alaska Native (AI/AN)

religions over all others. The Court determined that the exemption was rationally related to a 

legitimate governmental interest. The Court held that the exemption for Indians was a 

permissible preference, basing its decision on “Congress' historical obligation to respect 

AI/AN sovereignty and to protect AI/AN culture.” The Court also noted that the preference 

or exemption was supported by the legislative history and congressional findings underlying 
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Selected Court Decisions Appendix F-5

the American Indian Religious Freedom Act, which establishes Federal policy to protect and 

preserve the right of AI/AN peoples to believe, express, and exercise their traditional 

religions.

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). 

The Forest Service sought to develop a road on the Six Rivers National Forest through an area 

historically used by Indians for religious and spiritual activities. The Forest Service attempted to 

place the road to avoid archeological sites and as far as possible from sites used by Indians for 

spiritual activities. Nevertheless, an Indian organization, individual Indians, and others sought a 

permanent injunction prohibiting the road construction, arguing that the road would violate their 

rights under the Free Exercise Clause of the First Amendment, as well as other statutory violations. 

The district court and court of appeals held in the Indians' favor on the First Amendment issue. 

The Supreme Court, in a 5-3 decision, reversed and remanded the lower court decisions. The 

majority held that the Free Exercise Clause does not prohibit the Government from constructing the 

proposed road because the Government's action would not coerce the Indians into violating their 

religious beliefs, nor would the governmental action penalize the exercise of religious rights by 

denying adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. 

The majority noted that “[t]he Free Exercise Clause is written in terms of what the government 

cannot do to the individual, not in terms of what the individual can exact from the government.” 

The majority noted that the Government's right to the use of its lands need not and should not 

dissuade it from accommodating religious practices such as those engaged in by Indian respondents. 

The Court noted that the Forest Service commissioned a 423 page study of the impacts of the road 

on cultural and religious values in the area, chose a route that best protected sites where specific 

rituals occur, and developed steps to reduce visual impacts of the road on the surrounding country. 

The Court noted the Forest Service’s efforts to adjust the road to minimize adverse impacts to the 

Indians' spiritual and religious interests in the area more than satisfied the Government's obligations 

under the American Indian Religious Freedom Act (AIRFA). The Court noted that AIRFA provides 

no judicially enforceable individual right or cause of action against the Government. 

The dissent would have upheld the lower court rulings on the 1st Amendment Free Exercise issue. 

In the view of the dissenting justices, the Free Exercise Clause is directed against any form of 

governmental action that frustrates or inhibits religious practice, not simply those governmental 

actions that coerce religious adherents into actions inconsistent with their beliefs. The dissent 

argued that where, as the lower courts found in this case, the governmental action would virtually 

destroy one’s religious practices, that action should be found to violate the Free Exercise Clause 

absent some compelling governmental justification. The dissent viewed the impacts on the Indians' 

religious practices to be comparable to other cases in which the Court held that governmental action 

violated individuals' rights under the Free Exercise Clause. 

United States. v. Means, 858 F.2d 404 (8th Cir. 1988). 

Defendants, principals of a group of Sioux Indians, sought to establish a permanent camp for use by 

members of the Sioux Tribe on 800 acres of the Black Hills National Forest as a religious, cultural, 

and educational community. The Forest Service denied them a special-use permit for this use, citing 
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Selected Court Decisions Appendix F-6

statutory and regulatory limitations on permits to 80 acres and 30 years duration. The Forest Service 

determined that to grant the permit would be inconsistent with the public interest in maintaining the 

integrity of the Black Hills National Forest as public land. The district court held that denial of the 

permit violated defendants’ First Amendment right to free exercise of religion, and directed the 

Forest Service to issue defendants a special use permit. On appeal, the 8th Circuit reversed the 

District Court order, holding that the agency had not violated defendant's First Amendment right and 

that the denial of defendants’ special-use application for exclusive use of the area was not arbitrary 

and capricious. The court held that the defendants failed to demonstrate that the special-use permit 

denial burdened the exercise of their religion. 

Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983). 

The Navajo and Hopi Tribes challenged a Forest Service decision authorizing developers to expand 

the Snowbowl Ski Area on the San Francisco Peaks in the Coconino National Forest in Arizona. 

The Tribes argued that the expansion would harm the Peaks and impermissibly interfere with their 

religious beliefs and practices. The Court upheld the Forest Service’s action and concluded that the 

expansion would not violate the Tribes' First Amendment rights. The Court also rejected the Tribes' 

argument that the ski area expansion would violate American Indian Religious Freedom Act 

(AIRFA): 

It is clear from the reports, and from the statutory preamble, that AIRFA requires Federal agencies to 

learn about, and to avoid unnecessary interference with, traditional Indian religious practices. 

Agencies must evaluate their policies and procedures in light of the Act's purpose, and ordinarily 

should consult Indian leaders before approving a project likely to affect religious practices. 

The Court found that the Forest Service had complied with AIRFA because it had held many 

meetings with Indian religious practitioners and conducted public hearings on the Navajo and Hopi 

reservations at which practitioners testified. The views expressed there were discussed at length in 

the final environmental impact statement and were given due consideration in the evaluation of the 

alternative development schemes proposed for the Snowbowl Ski Area. 

Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980).

Plaintiffs, Navajo Tribe members, filed suit against the National Park Service alleging that the 

operation and management of Rainbow Bridge National Monument violated their rights under the 

Free Exercise Clause of the First Amendment because the Government, in order to form a reservoir 

(Lake Powell), had flooded an area of the monument that was a sacred location for prayer. The 

Tenth Circuit held that the Government's interest in maintaining the reservoir's capacity at a level 

that intrudes into the monument outweighs plaintiffs’ religious interest. Regarding plaintiffs' 

challenge to the intrusive and disruptive presence of tourists in and around the monument, the Court 

held that there was no basis in law for ordering the Government to exclude the public from public 

areas to ensure privacy during the exercise of First Amendment rights, and that the plaintiffs did not 

have a constitutional right to have tourists visiting the bridge act “in a respectful and appreciative 

manner.”
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Selected Court Decisions Appendix F-7

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APPENDIX G: EXISTING AUTHORITIES
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Existing Authorities Appendix G-1

Annotated Listing of Select Statutes, Regulations, and Executive Orders 

Influencing Sacred Site Protection

National Historic Preservation Act (NHPA), 16 U.S.C. §470 et. seq (1966): 

Properties of traditional religious and cultural importance to Indian Tribes or Native Hawaiian 

organizations ("traditional cultural properties") may be determined to be eligible for inclusion on the 

National Register of Historic Places. NHPA's implementing regulations, 36 CFR Part 800, require 

Federal agencies to consult with Tribes regarding properties of religious or cultural importance. The 

purpose of this consultation requirement is to ensure that the Federal agencies adequately consider the 

effects of proposed actions on properties significant to the affected Tribes. Where historic properties of 

concern to Tribes may be adversely affected, then Indian Tribes are to be invited by the agency to be 

included as consulting party (-ies) under certain circumstances. The regulations also provide that the 

agency may and sometimes must give Indian Tribes the opportunity to be signatories to Memoranda of 

Agreement or Programmatic Agreements arising out of the consultation process, particularly for agency 

undertakings on Tribal lands. Tribes must be given the opportunity to participate when an undertaking 

may affect properties of religious, cultural, or historic value to a Tribe on public lands. When assessing 

information needs related to an undertaking, an agency must seek information from Tribes likely to 

have knowledge of or concerns about traditional cultural properties as well as historic properties in the 

area. It is important to consider that determining eligibility for listing on the National Register may 

require documentation of certain characteristics that Tribes would not ordinarily reveal. Equally 

important is the fact that, under NHPA, agencies have the “last word” (on Federal public land) in 

determinations of significance, and, therefore, eligibility for listing on the National Register. The 

agencies, having determined that a property is significant and eligible for listing, may treat the property 

in all official actions as if it were listed. (However, Tribes identify what sites are sacred to them under 

Executive order 13007. See appendix B, appendix J, figure 7, and table 1.)

Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701-1784 (1976)

Under § 1712(b), the Secretary of Agriculture is directed to coordinate development and revision of 

land use plans for National Forest System lands with the land use planning and management programs 

of and for Indian Tribes by considering the policies of approved Tribal land resource management 

programs. Under § 1712[c], the Secretary of the Interior is directed to undertake similar coordination 

with Indian Tribes regarding lands administered by the Bureau of Land Management during land use 

planning and administration. 

American Indian Religious Freedom Act (AIRFA), 16 U.S.C. 1996 (1978)

AIRFA establishes the policy of the Federal Government “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.” It 

directs the President to instruct Departments and agencies to “evaluate their policies and procedures in 

consultation with Native traditional religious leaders in order to determine appropriate changes 

necessary to protect and preserve Native American religious cultural rights and practices.”

Statute: http://www.nps.gov/history/local-law/fhpl_indianrelfreact.pdf
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Existing Authorities Appendix G-2

Archaeological Resources Protection Act (ARPA), 16 U.S.C. §470 (1979)

ARPA was enacted to protect archeological resources on public and Indian lands and to foster increased 

cooperation and exchange of information between governmental authorities, the professional 

archaeological community, and private individuals having collections of archaeological resources and 

data. Any person may apply to a Federal land manager for a permit to excavate or remove an 

archeological resource on public lands. ARPA contains a provision for limited confidentiality of 

information. Federal land managers are directed under ARPA to develop regulations to carry out the 

act. 

Under Forest Service regulations at 36 CFR 296.7, the agency must notify Tribes that may consider a 

site of religious or cultural importance where the excavation is to occur at least 30 days prior to issuing 

an ARPA permit and to otherwise consult with Indian Tribes to determine under what circumstances a 

Tribe or group should be notified after a permit has been issued. These regulations at § 296.7(b) also 

instructs the Federal land manager to seek to identify all Indian Tribes having aboriginal or historic ties 

to the lands and seek to determine the location and nature of specific sites of religious or cultural 

importance so that such information may be on file for land management purposes. 

Statute: http://www.nps.gov/history/local-law/fhpl_archrsrcsprot.pdf

Forest Service Regulations: http://law.justia.com/cfr/title36/36cfr296_main_02.html

Alaska National Interest Lands Conservation Act of 1980 (ANILCA) (43 U.S.C. § 1636 et seq.) 

ANILCA recognizes subsistence hunting and fishing rights for Native and non-Native rural residents of 

the State of Alaska and gives them priority to subsistence resources in the event of shortages on public 

lands. Title VIII of the act provides that: “Except as otherwise provided in this act and other Federal 

laws, the taking on public lands of fish and wildlife for non-wasteful subsistence uses shall be accorded 

priority over the taking on such lands of fish and wildlife for other purposes.” Section 810 of this act 

stipulates how subsistence rights affect land use decisions: 

In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or 

disposition of public lands under any provision of law authorizing such actions, the head of the Federal 

agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, 

occupancy, or disposition on subsistence use and needs, the availability of other lands for the purposes 

sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or 

disposition of public lands needed for subsistence purposes.

Sections 811(a) and 812 direct the Secretary of the Interior to ensure both Native and non-Native rural 

residents have access to subsistence resources on public lands. 

Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C. § 1613 (1971)

ANCSA provided for the immediate settlement of Alaska Native Claims. The settlement extinguished 

Alaska Native claims to the land by transferring titles to 12 land-based corporations and 1 nonlandbased regional corporation, as well as over 200 local Village Corporations. In ANCSA, Congress 

sought to resolve claims of aboriginal title. ANCSA authorized the conveyance of fee title to 40 

million acres of public lands in Alaska and the payment of $962.5 million to these corporations in 

settlement of the claims of aboriginal title to Alaska by its Natives. Section 14(h)(1) of ANCSA 
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Existing Authorities Appendix G-3

describes how the Secretary of the Interior may convey fee title of existing cemeteries and historical 

places to the appropriate regional corporation. 

Native American Grave Protection and Repatriation Act (NAGPRA) 25 U.S.C. §3001 (1990)

NAGPRA sets forth the process by which Native American cultural items, including human remains, 

shall be handled when excavated or discovered on Federal or Tribal lands, with repatriation of such 

remains prioritized in favor of lineal descendants and, then, the Indian Tribe or Native Hawaiian 

organization that is recognized as aboriginally occupying the area of Federal land in which the items 

were discovered. NAGPRA directs that activities shall cease on lands where inadvertent discoveries of 

Native American remains are made until the items discovered have been protected and notice consistent 

with the statute has been provided. NAGPRA also sets forth a process by which Federal agencies and 

museums are to inventory Native American cultural items in their possession, as well as a process for 

repatriation of such cultural items. Under NAGPRA, consultation is required under certain 

circumstances, including those identified in Sections 3002(c), 3002(d), 3003, 3004, and 3005. 

The NAGRPA implementing regulations refer to consultation or consultation-related concerns in 

several sections, including (but not limited to) 43 CFR 10.5 (consultation requirements for intentional 

excavation or inadvertent discovery), 43 CFR 10.8 (consultation requirements for summaries), and 43 

CFR 10.9 (consultation requirements for inventories). The regulations also specify other requirements 

for communicating with Tribes, though without requiring consultation.

Detailed information about NAGPRA and its implementing regulations is available at the National Park 

Service National NAGPRA Web site: http://www.nps.gov/history/nagpra/.

Tribal Forest Protection Act (TFPA), 25 U.S.C. § 3115a (2004)

The TFPA authorizes the Secretaries of Agriculture and the Interior to enter into agreements and 

contracts with Tribal governments to carry out projects on Federal lands to protect Indian forest 

or range land or communities. Indian Tribes submit project proposals to the Forest Service and 

the Bureau of Land Management (BLM) for projects bordering or adjacent to Tribal land that are 

intended to address fire, disease, other threats to Indian forest or range land, or where the Forest 

Service or BLM land is in need of restoration. The Secretaries are to respond to Tribal project 

proposals within 120 days from the date a project proposal is submitted. The decision whether 

to authorize Tribes’ project proposals is wholly discretionary.

The Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 (1993)

RFRA reiterated that governments should not substantially burden religious exercise without 

compelling justification; and attempted to provide a claim or defense to persons whose religious 

exercise is substantially burdened by Government. Later amendments codified at 42 U.S.C. 1996a 

specifically clarified that the use of peyote by an Indian for bona fide traditional ceremonial purposes in 

connection with the practice of a traditional Indian religion is lawful.

Executive Order 13175—Consultation and Coordination with Indian Tribes, November 6, 

2000

Executive Order 13175 directs Federal agencies to develop an “accountable process” for ensuring 

meaningful and timely input by Tribal officials in development of regulatory policies that have Tribal
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Existing Authorities Appendix G-4

implications. The Executive order applies to regulations, legislative comments or proposed legislation, 

and other policy statements or actions that have substantial direct effects on one or more Tribes, on the 

relationship between the Federal Government and Tribes, or on the distribution of power and 

responsibilities between the Federal Government and Tribes. For more information, visit 

http://www.fs.fed.us/spf/tribalrelations/documents/policy/executiveorders/E.O.13175_11_6_00.pdf.

Executive Order 13007—Indian Sacred Sites, May 24, 1996

See appendix B for full text. 

United Nations Declaration on the Rights of Indigenous Peoples (Excerpts)

(Support announced by President Obama in December 2010)

The General Assembly: Guided by the purposes and principles of the Charter of the United Nations, 

and good faith in the fulfillment of the obligations assumed by States in accordance with the charter,

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all 

peoples to be different, to consider themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, 

which constitute the common heritage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples 

or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, 

scientifically false, legally invalid, morally condemnable and socially unjust,

Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination 

of any kind,

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their 

colonization and dispossession of their lands, territories and resources, thus preventing them from 

exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which 

derive from their political, economic and social structures and from their cultures, spiritual traditions, 

histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in 

treaties, agreements and other constructive arrangements with States,

Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social 

and cultural enhancement and in order to bring to an end all forms of discrimination and oppression 

wherever they occur,

Convinced that control by indigenous peoples over developments affecting them and their lands, 

territories and resources will enable them to maintain and strengthen their institutions, cultures and 

traditions, and to promote their development in accordance with their aspirations and needs,
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Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to 

sustainable and equitable development and proper management of the environment,

Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples 

to peace, economic and social progress and development, understanding and friendly relations among 

nations and peoples of the world,

Recognizing in particular the right of indigenous families and communities to retain shared 

responsibility for the upbringing, training, education and well-being of their children, consistent with 

the rights of the child,

Considering that the rights affirmed in treaties, agreements and other constructive arrangements 

between States and indigenous peoples are, in some situations, matters of international concern, 

interest, responsibility and character,

Considering also that treaties, agreements and other constructive arrangements, and the relationship 

they represent, are the basis for a strengthened partnership between indigenous peoples and States,

Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social 

and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the Vienna 

Declaration and Programme of Action, affirm the fundamental importance of the right to selfdetermination of all peoples, by virtue of which they freely determine their political status and freely 

pursue their economic, social and cultural development,

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to selfdetermination, exercised in conformity with international law,

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance 

harmonious and cooperative relations between the State and indigenous peoples, based on principles of 

justice, democracy, respect for human rights, non-discrimination and good faith,

Encouraging States to comply with and effectively implement all their obligations as they apply to 

indigenous peoples under international instruments, in particular those related to human rights, in 

consultation and cooperation with the peoples concerned,

Emphasizing that the United Nations has an important and continuing role to play in promoting and 

protecting the rights of indigenous peoples,

Believing that this Declaration is a further important step forward for the recognition, promotion and 

protection of the rights and freedoms of indigenous peoples and in the development of relevant 

activities of the United Nations system in this field,

Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all 

human rights recognized in international law, and that indigenous peoples possess collective rights 

which are indispensable for their existence, well-being and integral development as peoples,

Recognizing that the situation of indigenous peoples varies from region to region and from country to 

country and that the significance of national and regional particularities and various historical and 

cultural backgrounds should be taken into consideration,
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Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a 

standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1 - Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of 

all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the 

Universal Declaration of Human Rights (4) and international human rights law.

Article 2 - Indigenous peoples and individuals are free and equal to all other peoples and individuals 

and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular 

that based on their indigenous origin or identity.

Article 3 - Indigenous peoples have the right to self-determination. By virtue of that right they freely 

determine their political status and freely pursue their economic, social and cultural development.

Article 4 - Indigenous peoples, in exercising their right to self-determination, have the right to 

autonomy or self-government in matters relating to their internal and local affairs, as well as ways and 

means for financing their autonomous functions.

Article 5 - Indigenous peoples have the right to maintain and strengthen their distinct political, legal, 

economic, social and cultural institutions, while retaining their right to participate fully, if they so 

choose, in the political, economic, social and cultural life of the State.

Article 6 - Every indigenous individual has the right to a nationality.

Article 7 - 1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and 

security of person. 2. Indigenous peoples have the collective right to live in freedom, peace and security 

as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, 

including forcibly removing children of the group to another group.

Article 8 - 1. Indigenous peoples and individuals have the right not to be subjected to forced 

assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention 

of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as 

distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or 

effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population 

transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of 

forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or 

ethnic discrimination directed against them.

Article 9 - Indigenous peoples and individuals have the right to belong to an indigenous community or 

nation, in accordance with the traditions and customs of the community or nation concerned. No 

discrimination of any kind may arise from the exercise of such a right.

Article 10 - Indigenous peoples shall not be forcibly removed from their lands or territories. No 

relocation shall take place without the free, prior and informed consent of the indigenous peoples 

concerned and after agreement on just and fair compensation and, where possible, with the option of 

return.
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Article 11 - 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and 

customs. This includes the right to maintain, protect and develop the past, present and future 

manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, 

ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress 

through effective mechanisms, which may include restitution, developed in conjunction with 

indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken 

without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12- 1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual 

and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in 

privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; 

and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or 

repatriation of ceremonial objects and human remains in their possession through fair, transparent and 

effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 13 - 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future 

generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and 

to designate and retain their own names for communities, places and persons.

2. States shall take effective measures to ensure that this right is protected and also to ensure that 

indigenous peoples can understand and be understood in political, legal and administrative proceedings, 

where necessary through the provision of interpretation or by other appropriate means.

Article 14 - 1. Indigenous peoples have the right to establish and control their educational systems and 

institutions providing education in their own languages, in a manner appropriate to their cultural 

methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all 

levels and forms of education of the State without discrimination. 3. States shall, in conjunction with 

indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, 

including those living outside their communities, to have access, when possible, to an education in their 

own culture and provided in their own language.

Article 15 - 1. Indigenous peoples have the right to the dignity and diversity of their cultures, 

traditions, histories and aspirations which shall be appropriately reflected in education and public 

information. 2. States shall take effective measures, in consultation and cooperation with the indigenous 

peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, 

understanding and good relations among indigenous peoples and all other segments of society.

Article 16 - 1. Indigenous peoples have the right to establish their own media in their own languages 

and to have access to all forms of nonindigenous media without discrimination.

2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural 

diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately 

owned media to adequately reflect indigenous cultural diversity.

Article 17- 1. Indigenous individuals and peoples have the right to enjoy fully all rights established 

under applicable international and domestic labour law. 2. States shall in consultation and cooperation 

with indigenous peoples take specific measures to protect indigenous children from economic 

exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s 

education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social 

development, taking into account their special vulnerability and the importance of education for their 
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empowerment. 3. Indigenous individuals have the right not to be subjected to any discriminatory 

conditions of labor and, inter alia, employment or salary.

Article 18 - Indigenous peoples have the right to participate in decisionmaking in matters which would 

affect their rights, through representatives chosen by themselves in accordance with their own 

procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.

Article 19 -States shall consult and cooperate in good faith with the indigenous peoples concerned 

through their own representative institutions in order to obtain their free, prior and informed consent 

before adopting and implementing legislative or administrative measures that may affect them.

Article 20 - 1. Indigenous peoples have the right to maintain and develop their political, economic and 

social systems or institutions, to be secure in the enjoyment of their own means of subsistence and 

development, and to engage freely in all their traditional and other economic activities. 2. Indigenous 

peoples deprived of their means of subsistence and development are entitled to just and fair redress. 

Article 21 - 1. Indigenous peoples have the right, without discrimination, to the improvement of their 

economic and social conditions, including, inter alia, in the areas of education, employment, vocational 

training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure continuing 

improvement of their economic and social conditions. Particular attention shall be paid to the rights and 

special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 22 - 1. Particular attention shall be paid to the rights and special needs of indigenous elders, 

women, youth, children and persons with disabilities in the implementation of this Declaration. 

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women 

and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23 - Indigenous peoples have the right to determine and develop priorities and strategies for 

exercising their right to development. In particular, indigenous peoples have the right to be actively 

involved in developing and determining health, housing and other economic and social programmes 

affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 24 -1. Indigenous peoples have the right to their traditional medicines and to maintain their 

health practices, including the conservation of their vital medicinal plants, animals and minerals. 

Indigenous individuals also have the right to access, without any discrimination, to all social and health 

services.

2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of 

physical and mental health. States shall take the necessary steps with a view to achieving progressively 

the full realization of this right.

Article 25 - Indigenous peoples have the right to maintain and strengthen their distinctive spiritual 

relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and 

coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26 - 1. Indigenous peoples have the right to the lands, territories and resources which they have 

traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to 

own, use, develop and control the lands, territories and resources that they possess by reason of 

traditional ownership or other traditional occupation or use, as well as those which they have otherwise 
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acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. 

Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems 

of the indigenous peoples concerned.

Article 27 - States shall establish and implement, in conjunction with indigenous peoples concerned, a 

fair, independent, impartial, open and transparent process, giving due recognition to indigenous 

peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of 

indigenous peoples pertaining to their lands, territories and resources, including those which were 

traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to 

participate in this process.

Article 28 - 1. Indigenous peoples have the right to redress, by means that can include restitution or, 

when this is not possible, just, fair and equitable compensation, for the lands, territories and resources 

which they have traditionally owned or otherwise occupied or used, and which have been confiscated, 

taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise 

freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and 

resources equal in quality, size and legal status or of monetary compensation or other appropriate 

redress.

Article 29 - 1. Indigenous peoples have the right to the conservation and protection of the environment 

and the productive capacity of their lands or territories and resources. States shall establish and 

implement assistance programmes for indigenous peoples for such conservation and protection, without 

discrimination. 2. States shall take effective measures to ensure that no storage or disposal of hazardous 

materials shall take place in the lands or territories of indigenous peoples without their free, prior and 

informed consent. 3. States shall also take effective measures to ensure, as needed, that programmes 

for monitoring, maintaining and restoring the health of indigenous peoples, as developed and 

implemented by the peoples affected by such materials, are duly implemented.

Article 30 - 1. Military activities shall not take place in the lands or territories of indigenous peoples, 

unless justified by a relevant public interest or otherwise freely agreed with or requested by the 

indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous 

peoples concerned, through appropriate procedures and in particular through their representative 

institutions, prior to using their lands or territories for military activities.

Article 31 - 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural 

heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of 

their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, 

knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional 

games and visual and performing arts. They also have the right to maintain, control, protect and 

develop their intellectual property over such cultural heritage, traditional knowledge, and traditional 

cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to 

recognize and protect the exercise of these rights.

Article 32 - 1. Indigenous peoples have the right to determine and develop priorities and strategies for 

the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their 

own representative institutions in order to obtain their free and informed consent prior to the approval 

of any project affecting their lands or territories and other resources, particularly in connection with the 

development, utilization or exploitation of mineral, water or other resources. 3. States shall provide 
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effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be 

taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 33 - 1. Indigenous peoples have the right to determine their own identity or membership in 

accordance with their customs and traditions. This does not impair the right of indigenous individuals 

to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine 

the structures and to select the membership of their institutions in accordance with their own 

procedures.

Article 34 - Indigenous peoples have the right to promote, develop and maintain their institutional

structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases 

where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 35 - Indigenous peoples have the right to determine the responsibilities of individuals to their 

communities.

Article 36 - 1. Indigenous peoples, in particular those divided by international borders, have the right to 

maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, 

political, economic and social purposes, with their own members as well as other peoples across 

borders.

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to 

facilitate the exercise and ensure the implementation of this right.

Article 37 - 1. Indigenous peoples have the right to the recognition, observance and enforcement of 

treaties, agreements and other constructive arrangements concluded with States or their successors and

to have States honour and respect such treaties, agreements and other constructive arrangements. 

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous 

peoples contained in treaties, agreements and other constructive arrangements.

Article 38 - States in consultation and cooperation with indigenous peoples, shall take the appropriate 

measures, including legislative measures, to achieve the ends of this Declaration.

Article 39 - Indigenous peoples have the right to have access to financial and technical assistance from 

States and through international cooperation, for the enjoyment of the rights contained in this 

Declaration.

Article 40 - Indigenous peoples have the right to access to and prompt decision through just and fair 

procedures for the resolution of conflicts and disputes with States or other parties, as well as to 

effective remedies for all infringements of their individual and collective rights. Such a decision shall 

give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples 

concerned and international human rights.

Article 41 - The organs and specialized agencies of the United Nations system and other 

intergovernmental organizations shall contribute to the full realization of the provisions of this 

Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways 

and means of ensuring participation of indigenous peoples on issues affecting them shall be established.
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Article 42 - The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and 

specialized agencies, including at the country level, and States shall promote respect for and full 

application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43 - The rights recognized herein constitute the minimum standards for the survival, dignity 

and well-being of the indigenous peoples of the world.

Article 44 - All the rights and freedoms recognized herein are equally guaranteed to male and female 

indigenous individuals.

Article 45 - Nothing in this Declaration may be construed as diminishing or extinguishing the rights 

indigenous peoples have now or may acquire in the future.

Article 46 - 1. Nothing in this Declaration may be interpreted as implying for any State, people, group 

or person any right to engage in any activity or to perform any act contrary to the Charter of the United 

Nations or construed as authorizing or encouraging any action which would dismember or impair, 

totally or in part, the territorial integrity or political unity of sovereign and independent States. 2. In the 

exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of 

all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to 

such limitations as are determined by law and in accordance with international human rights 

obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the 

purpose of securing due recognition and respect for the rights and freedoms of others and for meeting 

the just and most compelling requirements of a democratic society. 3. The provisions set forth in this 

Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for 

human rights, equality, nondiscrimination, good governance, and good faith.

(2) See resolution 2200 A (XXI), annex.

(3) A/CONF.157/24 (Part I), chap. III.

(4) Resolution 217 A (III).

http://www.un.org/esa/socdev/unpfii/en/drip.html
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APPENDIX H: SUMMARY OF 2003–2007 SACRED SITES POLICY REVIEW
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Summary of 2003-2007 Sacred Sites Policy Review Appendix H-1

SUMMARY OF 2003–2007 SACRED SITES POLICY REVIEW

Introduction

In 2003, the Forest Service chartered a team to conduct a review of the agency’s implementation of 

Executive Order (E.O.) 13007 on Indian Sacred Sites. That team first met in 2003 and examined the 

requirements of E.O. 13007, the American Indian Religious Freedom Act, the National Historic 

Preservation Act, and other relevant laws. The team proceeded to conduct numerous listening sessions 

with Tribal leaders and citizens, traditional practitioners, and elders throughout the Western United 

States and in Alaska. The team also analyzed policies from the Forest Service and other agencies and 

interviewed Forest Service personnel at all levels of the agency. The listening sessions and interviews 

yielded several themes around how people felt about the agency’s land management decisions and 

especially about how those decisions have affected Indian sacred sites. In 2007, the team reported to 

Forest Service leadership on the results of their investigations. The observations, conclusions, and 

themes from their work are summarized below.

Observations Expressed

In general, Tribal people, including leaders, elders, and other individuals expressed concern that their 

views had not been fully considered in important forest management decisions that relate to protection 

of and continued access to sacred sites. It was suggested that this situation will need to be corrected if 

proper and ongoing consultation and relationship-building is to be meaningful. More specifically, 

Tribal people expressed that they feel betrayed, not heard, and not valued when they speak about 

the importance of protecting sacred sites and maintaining a connection to them. Tribal 

representatives consistently say that traditional perspectives were not critical considerations in 

current land management decisions.

Regular meetings between the Forest Service local unit and appropriate Tribes need to be 

encouraged and maintained. It is important to the Government-to-Government relationship. In 

addition, Tribes indicated that every forest needs to conduct open discussions on developing an 

agreement to deal with sacred sites; Native American Graves Protection and Repatriation Act 

(NAGPRA); the protection and use of traditional medicine, food, and cultural needs in their 

traditional homelands; and viewshed impacts.

Tribes believe everything is sacred. Yet some areas need certain management to maintain 

viewsheds and access. Some areas can accommodate an appropriate level of natural resource 

management. Some areas are more special and can be attributed to be more critical for ceremonies, 

beliefs, and values. The Forest Service must work with Tribes through the consultative process to 

investigate what this means for protection of and access to sacred places and resources.

When describing the importance of access to and protection of sacred sites, Tribal people related 

that these sites are vital to the survival of all humanity and traditional people pray for all living 

entities.

When Tribal representatives and traditional practitioners described what sacred sites were, they 

represented these locations at multiple geographic scales, from landscapes of mountain ranges to 

specific areas associated with plant gathering. They also represented sacredness in terms of 

temporal scale: past, present, and future.

Tribes expressed that consideration of traditional ecological knowledge (TEK) must be integrated 

into national forest management on an equal footing with what we term as “science.” Tribes have 

cultivated TEK over thousands of years and see themselves as stewards of the land. Tribes 

reflected that in collaboration with the Forest Service, TEK could help improve land management 

decisions. Because of the Federal Government’s trust responsibility, Tribes asserted that the Forest 
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Summary of 2003-2007 Sacred Sites Policy Review Appendix H-2

Service also has an obligation to protect indigenous cultures and promote and preserve their 

connection to their cultures.

An important function of a living culture is to pass on traditional values and perspectives to 

members through a variety of traditional practices. Within Tribal communities, this includes 

hunting, gathering, processing food, and conducting religious ceremonies at historic and cultural 

significant sites. The activities of hunting, gathering, and conducting religious ceremonies are 

considered sacred by some traditional people. Associated songs, stories, protocols, and locations 

are also sacred.

Tribes have established governments. These governments have and maintain internal protocols and 

processes that govern Tribal interactions with members and external entities. Spiritual leadership 

may differ in roles and responsibilities from elected governmental Tribal leadership. Recognition 

and respect of these Tribal infrastructures and relationships with Tribal councils and traditional 

leaders will improve Forest Service relationships with Tribes. 

Tribes are concerned that the Forest Service and the Federal Government seem to be in a continual 

state of reorganization. The continual replacement of Forest Service personnel inevitably results in 

interruptions that hinder long-term relationship development between the Tribe, traditional 

practitioner, and/or Alaska Native Corporation, and the Forest Service. The Forest Service needs to 

institutionalize and integrate consultation and protocols so that regardless of personnel changes, 

their actions honor and incorporate the concerns of Tribal governments into land management 

decisions and practices. It is important and appropriate to ask Tribal Governments and traditional 

practitioners, in particular, how to work with them.

In emergencies, Tribes expressed a desire to have a sacred sites policy that could “trigger” 

responses at the most appropriate level to the situation and be a collaborative process. Ideally, this 

means a policy has been negotiated prior to an immediate need for direction and that all parties 

know and understand the guidance set forth in the policy. Tribal people referred to inadvertent 

discoveries in a NAGPRA context as an example, but then extended the idea to inadvertent 

discoveries of sacred sites in land management activities and natural disasters.

Conclusions of the Team

More effort should go into fully considering traditional values and perspectives in management 

decisions.

Regular meetings between land managers and Tribes should be held, and, where useful, should 

lead to agreements. 

While everything is sacred to Tribes, there are different degrees of how central and essential sacred 

areas and resources are to Tribes and how Tribes feel they should be protected and managed that 

can only be determined through consultative processes.

Tribes believe traditional practitioners conduct their rituals for all living entities and that some 

sacred sites are vital to the survival of all humanity.

Sacred sites may occur at multiple geographic scales and may concern past, present, and future 

temporal scales.

Traditional ecological knowledge is often connected to sacred sites; this must be taken into 

account in land management actions. Protecting indigenous cultures and promoting their 

connection to their cultures will improve land management decisions.

Tribes consider sacred sites to be essential elements in Tribal communities’ ability to pass on 

traditional values and perspectives through the practice of traditional activities such as hunting, 

gathering, processing food, and conducting religious ceremonies. Associated songs, stories, 

protocols, and locations are also considered sacred.
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Summary of 2003-2007 Sacred Sites Policy Review Appendix H-3

Recognition and respect of Tribal governmental and traditional leadership structures, including 

internal protocols and processes, will improve Forest Service relationships with Tribes.

Because of continual turnover of Forest Service personnel, protocols related to sacred sites should 

be developed in consultation with Tribes and institutionalized to transcend agency personnel.

Such protocols could extend to emergency situations and inadvertent discoveries of sacred sites in 

land management activities and natural disasters.

Themes 

TRUST: The importance of trust in both the Federal trust responsibility to Tribes and in the sense 

of interpersonal relationships between agency employees and Tribes.

CONFIDENTIALITY: Whether the Forest Service can keep information confidential, that 

talking about sacred sites may be culturally prohibited, and that providing information about 

sacred sites may “quantify” it in a way that would result in restrictions.

CONSULTATION: The Forest Service should consult with Federally Recognized Tribes and 

honor its trust responsibility. Additionally, the agency should confer with traditional practitioners 

and communities that have knowledge and interests in sacred sites and resource protection, and 

ensure consulting and conferring on sacred sites is conducted pursuant to E.O. 13007 and the 

American Indian Religious Freedom Act. 

MANAGEMENT, MONITORING, AND ACCOUNTABILITY: Concerns were expressed as 

to whether Forest Service officials would follow through and implement actions to honor 

commitments. The Forest Service should also:

o Provide appropriate information in easily accessible ways (radio, television, Web, regular 

meetings).

o Work with traditional, spiritual, and clan leaders, as well as the Tribal governments, to 

identify culturally/traditionally appropriate communications protocols.

o Develop and include in agency processes and policies to protect sacred sites and access.

o Work with Tribes on place names and heritage sites.

o Coordinate special forest products management across jurisdictional boundaries.

o Work together with Tribes to resolve conflicts about sacred sites. 

o Co-manage sites, special use areas, and other lands.

TRAINING: Forest Service personnel should undergo training about Tribal history, Tribal law, 

cross-cultural communication, and cultural sensitivities.

INTERPRETATION: Interpretation of Tribal culture and sites should be developed in 

cooperation with Tribal people and should involve Tribal youth.

SPECIAL USES (including recreation, special forest products, energy, wildlife and fish, etc.): 

Special uses of lands and resources of sacred importance should be done in collaboration with 

Tribes and reduce the impacts to sacred sites and traditional uses.

INTELLECTUAL PROPERTY RIGHTS: Intellectual property rights, such as rock art, clan 

crests, etc., of Tribal people, should be protected.

NONFEDERALLY RECOGNIZED INDIAN GROUPS AND COMMUNITIES. Groups and 

communities may have traditional knowledge and historical ties to national forests; traditional 

practitioners and traditional communities need to be conferred with appropriately. 

In addition, many Tribal people would like to see legislation making elements of E.O. 13007 legally 

enforceable in court. The Tribes and agency employees who were interviewed also recognized a need 

to work through disagreements with respect, using mutually agreed-upon procedures for conflict and 

dispute resolution. 
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APPENDIX I: SECRETARY OF AGRICULTURE THOMAS J. VILSACK’S LETTER 

REQUESTING SACRED SITES REVIEW
JUL OJ 2010 

,

W.8HINClTON,D.C. 1ICHIeO 

The Honorable Sarah Presler 

Mayor, City of Flagstaff 

211 West Aspen Avenue 

Flagstaff, Arizona 8600 1 

Dear Mayor Presler, 

In late January, I wrote to you~ing my hope that a creative solution could be achiev

which better met the concerns orall stakeholders in the matter of snowmaking at the Arizo

Snowbowl Ski Facility 10000000n the San Francisco Peaks in the Coconino National Fore

I have said before, this issue involves many impassioned~lders with real concerns. 

Tribal leaders expressed deepeoncem regarding protection of the sacredness of the San 

Francisco Peaks and because of these concerns the U.S. Departmetttof Agriculture (USD

. took time to evaluate the situation. 

Since the original Record of Decision (ROD).in 2005, whidt approved the use of reclaime

water, the City of Flagstatfidenti.t'Wdand presented to USDA,a'Dew delivery poillt for the 

snowmaldng water source which allows for further natural til~onand dilution ofwater 

improving the water quality which is described as recovered-~laimed water or stoJ'ed wa

The Forest Service reviewed the use of recovered-reclaimed waterUllder the original RoOD 

found that it could be used within the existing framework. 

My position has been one of encouraging all stakeholders to adopt the recovered-reclaime

for snowmaking on the mo\IDtam"understanding that while D<)t a perfect solution, i!~~'~

workable compromise. My understanding is that the community bas not yet come to ~,~

on a pathway forward. Therefc,lre;'the: Forest Service will issue the pennit allowing for eit

IOUlee of water and thepermit'willbCcotnee~velO daysfnJJntoday. Providing the o

for recovered-reclaimed water em~w~ the loCal COJWnunnytolnake the final determina

and.britl& resolution to this lona stPting issue. 

l',¢~;"i"" .... ..... .' •. ~), ·PiaD 1!!=~i~red, are specIal places m?W'~. then~ to revjew The)',_t~nC)tonly our~. Si~ s\lCh to Native as ~ SaD 

American Ifc

bUt to our broader Ameri.~unfty.~l'~vctIM8'j.l1SbA Office of Tribal Relatio

work closely with the USDXFpaiest Service to iitmedi4tely begin convening consultative 

sessio~ with Native AmeriCld leaders. This dial~$hould be about how we can do a b

job ad~sing sacred·site iSsues while sitnultaq~~ybalancing pursuit of the agency's m

to deliver tbrest goods and ~for cUl'l'el1f~ iuturegenerations. We need to examin

effectiv~ of existing l'awsaa4ro,pl4tiol'lSin~)l con¥steDt level of sacred site 

proteCtion that is more aoeeptabJctutttt~..··tiIt··, emerging effort will provide m

needed;'ttteiltion to thiS'wpoftant .. ', ... ', ., ... ' " furtherance of the spirit of the 

Pl'esident'.,.cOmmitmeDt8 to Tribal ~~ 

AN EQUAL OPPORTUNITY EMPLOYER 
.. 

Page 2 

I appreciate the time it has taken to get us to this moment and 1 realize that the stakeholder

involved invested considerable tittJ.e educating us and worldng with each other on various 

. forward. Thank you for your·.ofti)rt·in bringing this matter this far and I look forward to 

continuing our work toget.hOr. 

Sincerely, 

0J),u..k-'--

~.Vil$ack . 

Secretary 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

APPENDIX J: SUMMARIES OF COMMENTS AND CHANGES TO DRAFT REPORT
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS 

Appendix J: Sacred Sites Summary of Comment Themes

This appendix summarizes the overall themes of the American Indian/Alaska Native (AI/AN) and public comments received by the Forest 

Service, an agency of the U.S. Department of Agriculture (USDA), regarding the Draft Report to the USDA Secretary: USDA’s Office of 

Tribal Relations and Forest Service Policy and Procedures Review: Indian Sacred Sites. (Draft Report). Comments on this Draft Report were 

received through multiple methods and sources. These include:

In-person consultations that were conducted between Forest Service and Federally Recognized Tribal (FRT) representatives and 

Alaska Native Corporations (ANC) who mutually agreed to participate in this manner.

In-person collaborative discussions between Forest Service representatives and those FRT representatives who chose not to conduct 

Government-to-Government consultation but did choose to comment in person as an individual or representative of a Tribe.

In-person collaborative discussions (and, in some cases as guests at consultations, for example, in California due to affiliations with 

FRTs or State recognition) between Nonfederally Recognized Tribal (NFRT) representatives and Forest Service representatives.

Email, U.S. postal mail, and phone call comments that were received from FRTs, AI/AN groups, and NRFTs; 

Email and U.S. postal mail comments that were received from public groups and individuals as a result of a Notice of Availability

was published in the Federal Register, which included a request for public comment.64

These comments were grouped into three types, reviewed for content, and analyzed for themes:

1. Federally Recognized Tribes and Alaska Native Corporations Comments: These themes are based on comments from 

representatives of FRTs and ANCs who participated as individuals or on behalf of their Tribe or corporation. The majority of the 

comments were received via a Forest Service representative who summarized an in-person meeting with representatives of and one or 

more Tribes. In some cases, FRT members chose to include NFRT participants in these meetings due to local circumstances 

pertaining to sacred sites. This category also includes comments from FRTs submitted by email or U.S. postal mail. Some of these 

meetings constituted consultation; others did not.

2. Other Native American/Alaska Native Groups: These themes are based on comments from six AI/AN affiliated groups, such as the 

National Congress of American Indians and two NFRTs that submitted comments.

3. Public: These themes are based on comments received from groups or individuals that responded by mail or email to a Federal 

Register Notice65 and indicated no Tribal, Native American, or Alaska Native affiliation.

 

64 “Sacred Sites; Executive Order 13007,” 76 Fed.Reg. 47538 (Aug. 5, 2011). 

65 Ibid.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-3

Summaries of Comments and Changes to Draft Report

The USDA and Forest Service team assigned to craft the draft and Final Report considered all of the comments provided. To aid in the 

consideration of the comments received, Triangle Associates, Inc., as a neutral party, analyzed each of the comments and developed this 

summary outlining the themes. See table J1 for an overview of the sources of comments received. See table J2 for a summary of themes by 

category of commenter type. See appendix K for a listing of all comment records. Note the following:

The contents of this summary are not intended to agree, disagree, or respond to any of the comments received. They are intended as a 

summary report of the overall themes that were heard from the three categories of comments noted above.

As the purpose of this appendix was to identify themes, the specifics of any one individual comment are not included. However, all 

comments were reviewed and considered by the Forest Service.

The venue and format for receiving comments, as well as the context of the comments, varied significantly. Therefore, other than the 

overview provided in table J1, a statistical analysis to determine the percentage of respondents commenting on any one topic was not 

conducted.

The Forest Service will not be producing a “response to comments” such as one that is required when the agency prepares a final 

environmental impact statement under Title 40, Code of Federal Regulations (CFR), Section1503.4(a). This effort to review and 

consult on sacred sites policy does not constitute agency action that would “trigger” analysis under the National Environmental Policy 

Act and associated Council on Environmental Quality regulations. However, a summary of changes made to the report to address 

themes heard in consultation and from other comments is provided as appropriate to each theme in table J2.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-4

Summaries of Comments and Changes to Draft Report

Themes described in Table J2 below include: 

Overall Process/Overall Report

Access to Sites or Information

Accountability/Enforcement 

Agency Authority/Discretion

Communication

Co-management/Partnership

Confidentiality and sharing of information

Consultation

Economic Impacts/Funding

Executive Order (E.O.) 13007

International Context/United Nations Declaration on the Rights of Indigenous Peoples

Legacy of impacts from past Forest Service Actions

Legal Authority/Legal Landscape

Mining Law/Mining Rights

Multiple Use Mandate

National Historic Preservation Act Tools 

Nonfederally Recognized Tribes

Sacred Places

Snowbowl/San Francisco Peaks

Staffing/Hiring

Terminology

Traditional Knowledge

Training
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-5

Summaries of Comments and Changes to Draft Report

TABLE J1: Comment Sources and Types

Comments Number Sources Overall Theme

Type 1: Comments received from 

Tribes and ANCs (either as 

individuals or on behalf of the Tribe

or ANC).

Total Forest Service/Tribal meetings held 

= 49 

Individual FRT correspondence received = 

21

Total FRTs included in the above 

combined = 125

ANCs = 3 

NRFTs or groups that participated at the 

invitation of FRTs by local agreements = 

7

In-person meetings summarized by 

Forest Service personnel or Udall 

Institute for Environmental Conflict 

Resolution contracted facilitators, and 

letters submitted to the Forest Service 

on FRT letterhead 

In general, supportive of the contents of 

the report with requests for further detail 

on how the recommendations will be 

implemented. Some exceptions to this 

were comments indicating the report 

could not be taken seriously while 

activities at Snowbowl continued.

Type 2: Correspondence received 

from AI/AN groups and individual 

NFRTs

Groups = 8 

NRFTs = 3 

Email, letters, and one conference call In general, supportive of the report and 

requests for further detail on how the 

recommendations will be implemented. 

Exceptions to this were comments 

indicating the report could not be taken 

seriously while activities at 

“Snowbowl” continue.

Type 3: Other Public Comments

a. Public Comments Received 

from Groups

13 (mining, recreation, oil and gas, and 

grazing interests)

email and letters Critical of report and specifically the 

report’s legal analysis. Several 

questions, concerns, and specific 

disagreements were raised regarding the 

report’s references to agency authority.

b. Public Comments Received 

from Individuals

9 email and letters Generally supportive of the report and 

requests for further detail on how the 

recommendations will be implemented

Additional: Snowbowl-specific 

comments (no comments on the report 

included; therefore, not included in 

the analysis below)

21 Individuals email No mention of the report, with 

comments strongly against the decision 

to allow reclaimed water to be used to 

make snow for the Snowbowl ski area.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-6

Summaries of Comments and Changes to Draft Report

TABLE J2: Summary of Comment Themes

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Overall Draft Report 

Review Process 

Some Tribal and ANC commenters 

noted their appreciation for the report 

and the effort to consider protection of 

and access to sacred sites. 

Other Tribal commenters were critical 

of the report, indicating that in their 

view it provides no new mechanisms 

to protect sacred sites. 

Additionally, some Tribal commenters 

noted that they were not in agreement 

with the decision to allow the public to 

comment on the Draft Report.

Some Tribal and ANC commenters 

noted their appreciation for the effort 

to communicate with Tribes before 

writing recommendations. Others 

noted some confusion about listening 

sessions held early in 2011 and how 

they related to consultation.

Some of the other AI/AN commenters 

indicated they were encouraged by and 

supportive of the Draft Report, such as 

“the USDA has made a significant 

start.”

Others of the other AI/AN 

commenters were concerned that, from 

their perspective, the report contained 

no new mechanisms to protect sacred 

sites. 

Some public groups indicated that they 

were disappointed that the listening 

sessions held in early 2011 (to gather 

information for the Draft Report) did 

not include an opportunity for the 

general public and stakeholder 

interests to participate and comment. 

Additionally, these commenters called 

for significant stakeholder and public 

involvement in any further 

development of Forest Service land 

management policy regarding sacred 

sites. 

Some of the other commenters

indicated they were supportive of the 

process and the report, but called for 

more specificity in how the 

recommendations would be 

implemented.

 

66 FRT and ANC Comments: These themes are based on comments from representatives of FRTs and ANCs who participated as individuals or on behalf of their tribe or 

corporation. The majority of the comments were received via a Forest Service representative that summarized an in-person meeting with representatives of one or more 

tribes. In some cases, FRT members chose to include NFRT participants in these meetings due to local circumstances pertaining to sacred sites. This category also 

includes comments from FRTs submitted by email or U.S. Postal Service mail.

67 Other Native American/Alaska Native: These themes are based on comments from AI/AN affiliated groups, such as the National Congress of American Indians and 

two NFRTs that submitted comments by email.

68 Public: These themes are based on comments from groups or individuals that responded to a Federal Register Notice and indicated no Tribal, Native American, or 

Alaska Native affiliation.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-7

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Other Tribal commenters noted that 

the report appears to take a one-sizefits-all approach to sacred sites policy. 

These commenters noted the report 

should recognize the differences 

between different Tribes and between 

Tribes and ANCs.

Changes to the report regarding the report overall include:

Rewrote Executive Summary.

Added Informational Memorandum.

Revised overall language to reflect that comments were provided both during listening sessions and in response to the Draft Report.

Added this appendix summarizing AI/AN and other public comments.

Added to appendix summarizing Forest Service Employee comments.

Revised language throughout for consistency.

Added section on personnel contributing to this report.

Added language in Executive Summary and Recommendations to clarify that this is not a “one-size-fits-all” approach but seeking national 

consistency with local flexibility.

Access to Sites/Information Some Tribal commenters provided 

specific examples of barriers they had 

encountered for Tribal member access 

to sacred sites. These examples 

included lack of roads, inability to 

obtain a special use permit, 

misunderstandings with Forest staff, 

and Forest Service staff not 

understanding what is sacred to AI/AN 

peoples.

Some Tribal commenters noted they 

wanted more access to information the 

Forest Service has about their Tribe’s 

Not Addressed in Comments (NA) Some commenters asked for access to 

information about sacred sites so that 

these other users of the National Forest 

System (NFS) could help protect the 

sites while conducting their activities.

Other commenters noted that both 

access to public lands and increased 

protection of sacred sites are 

important.

Some public groups expressed concern 

that increased protections for sacred 

sites would result in diminished access 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-8

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

sacred sites. Others noted they wanted 

more control over the information that 

the agency has access to.

Additionally, some Tribal commenters 

expressed concern that access to

sacred sites or information about them 

would be granted to non-Indians that 

were posing as Natives or were 

inappropriately practicing Native

ways. This included concerns about 

providing access to NFRT 

representatives.

for the public to the NFS. 

Other public commenters indicated 

that any closures to areas of the NFS 

for protection or accommodation of 

sacred sites should occur only after 

undergoing public notice and 

comment.

Changes to the report regarding access include:

Updated the acknowledgements in the report to reflect comments received on the Draft Report regarding access.

Revised the recommendation on access to reflect “limited closures.”

Added a new recommendation to develop model provisions for Tribal/Forest Service information sharing agreements. 

Accountability/Enforcement Some Tribal commenters 

recommended that accountability for 

Forest Service staff needs to be 

addressed through the establishment of 

specific consequences if there is 

desecration of a site, an memorandum 

of understanding (MOU) or agreement 

is not followed, consultation is not 

conducted or not conducted properly, 

or if trust responsibilities to Tribes are 

not upheld.

Other Tribal commenters 

recommended that accountability 

measures should be put in place to 

Some of the other AI/AN commenters 

requested that specific 

recommendations, criteria, or guidance 

for accountability to be included in the 

report, including consequences for 

Forest Service staff.

Some public groups noted that they 

could help to protect sacred sites if 

they had information on where they 

were.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-9

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

determine effectiveness of line officers 

in working with Tribes.

In addition, some Tribal commenters 

noted that the term “permission” used 

in the recommendations section of the 

report is not strong enough.69 These 

commenters indicated that protection 

of sacred sites needs to be required.

Changes to the report regarding accountability/enforcement include:

Updated the acknowledgements in the report to reflect comments received (law enforcement, and new acknowledgement regarding workforce).

Law Enforcement was highlighted as part of the new recommendations for I. B.3. Training and II.C.2. under revising directives.

Added recommendation III. C.2: Protection regarding law enforcement agreements with other agencies and, where appropriate, Tribal police.

Agency 

Authority/Discretion

Some Tribal commenters indicated 

they were in support of the report’s 

recommendations for implementing 

existing agency authority. These 

comments included suggestions to 

enhance, emphasize, or add criteria for 

tools and authority under the National 

Historic Preservation Act (NHPA), 

forest planning, and numerous other 

statutes (see also comments under 

NHPA).

Other Tribal commenters asked for 

new legislation that would add more 

Some of the other AI/AN commenters 

indicated they were in support of the 

report’s recommendations for 

implementing existing agency 

authority. These commenters 

recommended adding more specifics 

on tools and authority specifically 

available under the NHPA as well as 

other statutes (see also comments 

under NHPA).

Additionally, some of the other AI/AN 

commenters asked for new legislation 

that would add specific actions Forest 

Some public groups indicated that the 

agency does not have the legal 

authority to implement many of the 

recommendations in the Draft Report. 

Additionally, these public group 

commenters indicated that in their 

view the Draft Report

recommendations would grant an 

“inappropriate” level of authority to 

the Forest Service in working with 

Tribes and would result in prioritizing 

Tribal interests at the expense of other 

land uses and users (see also 

comments under Legal 

 

69 Draft report page12: “These actions were chosen because they will engender an environment where line officers, managers, and staff feel they have the knowledge, 

support, and “permission” they need to improve communication and relationships with Native Americans and successfully carry out the direction of E.O. 13007 in a way 

that is acceptable to Tribes.”
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-10

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

specific actions Forest Service staff 

could take under existing authorities to 

protect sacred sites.

Additionally, some Tribal commenters 

noted they were concerned that the 

report did not identify any specific 

policy changes as part of the review.

Service staff could take under existing 

authorities to protect sacred sites. 

These commenters provided additional 

specific examples of how to use 

existing agency authorities to protect 

sacred sites.

Some of the other AI/AN commenters 

noted they were concerned that the 

report did not identify any specific 

policy changes as part of the review.

Analysis/Landscape).

Some of the other respondents

encouraged Forest Service personnel 

to achieve a better understanding of 

existing authorities and tools available 

to protect sacred sites.

Changes to the report regarding agency authority include:

The acknowledgements in the report were updated to reflect comments received

Included information on agency authority in the new Executive Summary.

Added detail to recommendation II.C.2 in response to comments asking which policies the report was reviewing.

Additional information clarifying agency authority is included in the “Legal Landscape” section.

Co-management/

Partnership

Some Tribal commenters noted their 

support for the recommendation on 

“Partnership.” These commenters 

provided a wide range of examples 

and suggestions for establishing 

MOUs between forests and Tribes.

Other Tribal and ANC commenters 

asked for the Forest Service to support 

legislation that would establish clear 

Forest Service authority for comanagement of sacred sites.

Some Tribal and ANC commenters 

indicated that Native management or 

Some of the other AI/AN commenters 

recommended that the report go 

further to support “co-management” of 

sacred sites, not just “partnerships” as 

it is stated now in the 

recommendations. These commenters 

included examples of co-management 

agreements or authorities under 

NHPA.

Some of these commenters asked the 

Forest Service to support legislation 

that would establish clear authority for 

co-management of sacred sites with 

AI/ANs. Some of these commenters 

Some public groups, while noting their 

support for partnerships with Tribes 

where appropriate, indicated that the 

discussion of co-management in the 

report goes beyond existing agency 

authority. In their view, any comanagement agreement with Tribes, 

or other partnerships with Tribes to 

achieve shared management goals 

would give Tribes a “de-facto veto” 

over use of the NFS. These 

commenters indicate that, in their 

view, the report prioritizes Tribal

interests over other interests and the 

recommendations run counter to the 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-11

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

ownership of sites should be a goal 

supported by the Forest Service.

Some Tribal commenters called for the 

Forest Service to report on what 

current advisory committees the 

agency has, as well as a report on 

AI/AN people who were appointed to 

these advisory committees today and 

over time.

noted the co-management authority of 

the National Park Service as a model.

Additionally, some of the other AI/AN 

commenters suggested that broad 

agreements could be established with 

Tribes that clearly define Tribal roles 

for joint management while leaving 

Forest Service inherent authorities 

intact.

agency’s multiple-use mandate.

Some of the other respondents noted 

their support for co-management of 

sacred sites and requested the Forest 

Service support legislation to establish 

a clear legal foundation for this.

Changes to the report regarding co-management/partnership include:

The acknowledgements in the report were updated to reflect comments received from Tribes and the public, and provide additional clarification. 

Added figure 2 outlining types of partnership agreements available under existing authorities.

Revised acknowledgement on co-management to reflect comments requesting legislation in support of co-management of sacred sites.

Added recommendation III.A.3 under “Partnerships” to respond to consultation & other AI/AN comments requesting examples of existing 

authorities.

Communication Some Tribal commenters expressed 

support for the report’s 

recommendation for early and ongoing 

communications between forests and 

Tribes. Additionally, some of these 

commenters called for criteria to be 

developed so that there are clear 

communications guidelines for forest 

personnel to follow.

Some Tribal and ANC commenters 

noted that many Forest Service 

personnel do not have a good 

understanding of Native culture and 

life ways, and that communication can 

therefore be challenging.

Some of the other AI/AN commenters 

expressed support for the report’s 

recommendation for early and ongoing 

communications between forests and 

Tribes. Additionally, some of these 

commenters called for criteria to be 

developed so that there were clear 

communications guidelines for forest 

personnel to follow.

Some public groups noted their 

understanding of and agreement with 

report’s recommendations on the 

importance of good communications 

between the Forest Service and Tribes. 

Some of these public groups expressed 

concern that non-Tribal users of the 

NFS were not being included in these 

communications.

Other public groups noted that in order 

to protect sacred sites during land use 

activities on public lands, Tribes need 

to be engaged, participate in 

consultation in a timely way, and share 

information on the location of sacred 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-12

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Other Tribal commenters gave specific 

examples of where communications is 

either working well or needs 

improvement at a specific forest or 

sacred site.

sites.

Some public individuals noted their 

understanding of, and agreement with, 

the report’s recommendations on the 

importance of good communications 

between the Forest Service and Tribes.

Changes to the report regarding communication include:

Added two additional recommendations: I.A.1, regarding regular notice of upcoming national policy topics requiring consultation and I.A.4, 

revising Forest Service consultation directives.

Confidentiality/Sharing 

Information About Sacred 

Sites

Some Tribal commenters noted that it 

is very difficult to share information 

about sacred sites due to several 

factors. In general, Tribal

representatives do not trust the Forest 

Service to keep information about 

sacred sites confidential. Some of 

these commenters noted that it should 

be the Tribes that manage the 

information if it has been shared.

Other Tribal commenters noted that it 

is not okay to share information about 

sacred sites to anyone outside of the 

Tribe and in some cases only certain 

individuals within the Tribe could 

know about them.

Some Tribal commenters noted that 

existing provisions under the 2008 

Farm Bill allow the Forest Service to 

keep certain traditional and cultural 

Some of the other AI/AN commenters 

noted that existing provisions under 

the Farm Bill allow the Forest Service 

to keep certain traditional and cultural 

information confidential (not release 

under the Freedom of Information 

Act) and that guidelines and training 

need to be developed by the Forest 

Service to implement these provisions. 

Some public groups indicated that 

“confidentiality” as discussed in the 

report leaves other interests out of the 

discussions. These commenters called 

for greater transparency and more 

inclusive participation of land use 

interests.

Other public groups indicated that if 

the Tribes or the Forest Service could 

provide information on the location of 

sacred sites, they could help protect 

these sites when land use or 

recreational activities were conducted.
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-13

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

information confidential (not release 

under the Freedom of Information 

Act) and that guidelines for 

implementing this must be developed. 

Additionally, these commenters noted 

that in addition to Farm Bill 

provisions, the report should 

emphasize the tools for confidentiality 

available under NHPA.

Other Tribal commenters noted that 

information held by the Forest Service 

should not be withheld from legitimate 

AI/ANs who request it.

Changes to the report regarding confidentiality include:

Updated the acknowledgements section in the report to reflect comments received.

Updated the recommendation on confidentiality under II.B.1 regarding development of directives to implement 2008 Farm Bill and MOUs on 

confidentiality.

Added recommendation II.B.2 regarding development of optional protocols for information to sharing between Tribes and Forest Service.

Included a table in the “Legal Landscape” on the differences and similarities between sacred sites under E.O. 13007 and NHPA, including 

confidentiality provisions.

Consultation Some Tribal commenters noted that 

they have been overwhelmed with 

requests for consultation from the 

Forest Service and other Federal

agencies in recent years and in 

particular during the period of the 

sacred sites review. Additionally, 

some of the commenters suggested 

that Federal agencies should 

coordinate their consultation requests 

both within and between agencies. 

Some of the other AI/AN commenters 

noted that the report needs to outline 

specific guidelines for consultation 

with FRTs. Additionally, commenters 

recommended that specific guidelines 

for consultation under NHPA and 

Native American Graves Protection 

and Repatriation Act, should be 

included.

Representatives of NFRTs indicated 

Some public groups indicated that 

consultation sessions between Tribes 

and the Forest Service should include 

other NFS users whose interests may 

be affected by the decisionmaking

process. Some of these commenters 

expressed frustration because in their 

view the Forest Service does not let 

other interests speak with Tribes.

Other public groups noted that 
USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Appendix J-14

Summaries of Comments and Changes to Draft Report

Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Other Tribal commenters noted that 

the Forest Service does not have 

adequate capacity to conduct 

consultation. These commenters also 

noted that many agency staff do not 

understand the obligation to consult 

with FRTs.

Additionally, some Tribal and ANC 

commenters noted that consultation 

needs to involve Forest Service

decisionmakers to be effective.

that in their view, existing statutes 

indicate that consultation is required 

with indigenous people and “Native

traditional spiritual leaders.” 

consultation must be with Tribal

decisionmakers, not traditional or 

spiritual leaders. Additionally, these 

commenters noted that Tribal leaders

must be willing to share the location of 

sacred sites to adequately protect 

them. 

Some public individuals called for 

more involvement of Tribes in the 

development of policy prior to 

consultation and for more effective 

consultation. Some of these public 

individuals called for consultation with 

both Tribal leaders and traditional 

practitioners.

Changes to the report regarding consultation include:

Updated the acknowledgements in the report to reflect comments received.

Added a section to the Introduction describing the agency’s legal responsibility to consult with Tribes.

Included a table in the “Legal Landscape” on the differences and similarities between sacred sites under E.O. 13007 and NHPA, including 

consultation requirements.

Updated several recommendations, including I.A.1, I.A.4, to clarify the agency’s obligation to consult with Tribes and to revise directives 

regarding consultation.

Economic Impacts/Funding Some Tribal commenters noted that,

from their perspective, the report’s 

frequent mention that no new funding 

is available to implement the 

recommendations indicates a lack of 

agency commitment to fulfill its 

obligations to Tribes.

Some of the other AI/ANs indicated 

that the report should advocate for new 

funding to help protect sacred sites.

Some public groups indicated that in 

their view implementation of the Draft 

Report’s recommendations could 

present economic hardships on 

business interests. Specifically, these 

groups were concerned that reduced 

access to NFS land, stemming from 

increased protections for sacred sites, 
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(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Other Tribal and ANC commenters 

noted that the Final Report should 

advocate for new funding to help 

protect sacred sites.

Some Tribal commenters noted that 

current Forest Service funding for 

working with Tribes is inadequate, in 

particular for Tribal liaisons and other 

Forest Service staff working on 

implementation of NHPA.

Other Tribal commenters expressed 

frustration with the references to 

limited funding and expressed their 

view that many of the 

recommendations only suggested the 

Forest Service follow its laws and 

appropriately train and enable its 

employees to do their job correctly. 

would result in increased costs, 

impacts to valid existing rights, 

reduced Federal taxes, and limits on 

job creation due to fewer opportunities 

for economic (energy, recreation, or 

other) development.

Additionally, some of these public 

groups were concerned about threats 

to national security from reduced 

access to domestic energy supplies on 

NFS land resulting from 

implementation of the report’s 

recommendations.

Some public individuals called for an 

increase in Federal budget 

appropriations specifically to help 

protect sacred sites. 

Changes to the report regarding economic impacts/funding include:

Updated the acknowledgements in the report to reflect comments received

Included funding context in new Executive Summary.

E.O. 13007 regarding 

sacred sites70

Some Tribal commenters expressed 

support for the recommendation to 

revise E.O. 13007 to include the 

broader concept of “sacred places” as 

this term more accurately captures the 

nature of what is sacred to Tribes. 

Some of the other AI/AN commenters 

called for the E.O. 13007 to be revised 

to include a “cause of action” that 

would provide for the legal protection 

of sacred sites. 

Some public groups indicated support 

for E.O. 13007 as currently written 

and do not support the report’s 

recommendation to revise it. These 

commenters noted the agency does not 

have the authority to change E.O.

 

70 See appendix B.
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(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Additionally, these commenters often 

requested that the Forest Service

specifically develop guidelines for the 

implementation of E.O. 13007 

including sacred places (see also topic 

on sacred places below).

(See also comments on Sacred Places.) 13007. Additionally, these public 

groups called for the Forest Service to 

take no action toward implementation 

of additional terms, such as “sacred 

places.” In their view, E.O. 13007 

contains all the direction required for 

protection of sacred sites through land

use management directives and 

guidance

(see also topic on sacred places 

below).

Some public individuals indicated that 

in their view protection of sacred sites 

would not be achieved by changing the 

language in E.O. 13007. These 

commenters indicate that the real 

problem lies with the agency’s 

interpretation and implementation of 

what is a sacred site. 

Changes to the report regarding E.O. 13007 include:

Clarified Draft Report Recommendation II.A.1, involving making changes to E.O. 13007. 

Updated Acknowledgements to explain removal and describe proposed approach to addressing Tribes’ concerns about E.O. 13007’s definition.

Updated Acknowledgements to clarify role of sacred places in keeping with multiple use considerations and valid existing rights. 

Added cross-reference “sacred places” into recommendations around training in Recommendation II.A.2.

Updated Recommendation II.A.3 to recommend directives revision.
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Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

International 

Context/United Nations 

Declaration on the Rights of 

Indigenous People 

(UNDRIP)

Some Tribal commenters indicated 

that the report should include specific 

support for the UNDRIP71. 

Some of the other AI/AN commenters 

indicated that the report should include 

specific support for UNDRIP as well 

as endorse and follow the 

recommendations contained in the 

Report by the Special Rapporteur on 

the Rights of Indigenous Peoples.72

Some public groups noted they were 

concerned that the Forest Service is 

not only using UNDRIP as a guide, 

but appears to be in the process of 

adopting its policies.

Changes to the report regarding International Context include:

Added new language referencing the United Nations’ Report by the Special Rapporteur on the Rights of Indigenous Peoples.

Legacy of impacts from past 

Forest Service actions

Some Tribal commenters indicated 

that report does not address how the 

Forest Service will address the 

agency’s legacy of past actions that 

resulted in damages to sacred sites and 

resulting trauma to the people and 

cultures that hold them sacred. 

Some of the other AI/AN commenters 

indicated that report does not address 

how the Forest Service will address 

the agency’s legacy of past actions that 

resulted in damages to sacred sites. 

Some public groups noted that if 

sacred sites have been impacted in the 

past, in their view this is likely the 

result of a Tribe either not being 

actively engaged or not sharing 

information.

Changes to the report regarding legacy of past actions include:

No new language added.

Legal Analysis/“Legal 

Landscape”

Some Tribal commenters noted that 

the report left out many of the tools 

available under the NHPA and that the 

report should clearly establish NHPA 

as a legal basis to work from. These 

commenters provided several 

examples of tools available under this 

statute (see additional comments under 

Some of the other AI/AN commenters 

indicate that the report incorrectly 

references the term “interested 

persons” in reference to Section 106 of 

the NHPA and has not included many 

of the tools under NHPA available to 

protect sacred sites.

Some public groups indicated they 

were very concerned with the report’s 

overview of the agency’s legal 

authority to work with Tribes and 

protect sacred sites. These commenters 

provided numerous examples of where 

they believed the agency’s legal 

analysis in the report was flawed, 

 

71 See appendix G.

72 U.N. Human Rights Council [HRC], Report by the Special Rapporteur on the rights of indigenous peoples, Annex X, “United States of America: Situation of the 

Native Americans in relation to artificial snowmaking from recycled wastewater in the San Francisco Peaks.” A/HRC/13/35/Add.1. 2011 (August 22, 2011). (Prepared 

by James Anaya).
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NHPA).

Other Tribal commenters expressed 

frustration with the discretion left to 

the Forest Service, as described in the 

“Legal Landscape” section, explaining 

that the agency seldom if ever used its 

discretion in a way that protected 

sacred sites. Instead, these 

commenters believe that the Forest 

Service regularly makes decisions 

favoring economic development rather 

than protections for Tribes and their 

sacred sites.

Additionally, some of the other AI/AN 

commenters suggest that there are 

some existing authorities for working 

with Tribes to protect sacred sites that 

are missing from the report, such as 

the Self Governance Act and 

American Indian Religious Freedom 

Act.

inaccurate, overreaching, and/or reinterpreting/re-writing laws to suit its 

needs. 

Additionally, these groups noted that 

in some cases the agency does not 

have the discretion it claims to have 

(for example, valid existing rights 

under the General Mining Law of 

1872).

Additionally, some public commenters 

indicate that the report incorrectly 

references the term “interested 

persons” in reference to Section 106 of 

NHPA.

Changes to the report regarding legal analysis include:

Updated the acknowledgements in the report to reflect comments received.

Added numerous cites to clarify case law and statues.

Moved “Government’s Trust Responsibility to Tribes” to the beginning of Legal Landscape section.

Revised text regarding the Free Exercise clause and legal interplay between Free Exercise and Establishment Clauses.

Included discussion of test from Lemon v. Kurtzmann regarding Constitution’s Establishment Clause in Legal Landscape section.

Added new text regarding the NHPA in the Legal Landscape section.

Added new figures in the “Legal Landscape” on (1) development and purpose of the NHPA and (2) outlining differences and similarities between 

sacred sites under E.O. 13007 and NHPA.

Minerals Exploration and 

Development Under the 

General Mining Law of 

1872

Some Tribal and ANC commenters 

expressed long standing frustration 

with the 1872 Mining Law and in their 

view the inability of the Forest Service 

or any Federal agency to prevent 

mining impacts on sacred sites located 

on public lands.

Some of the other AI/AN commenters 

expressed frustration with the inability 

of the Forest Service to prevent mining 

impacts on sacred sites.

Some public groups indicated that they 

were very concerned with the report’s 

recommendation to explore changes to 

the 1872 Mining Law, its 

implementing regulations, or internal 

agency directives. These commenters 

indicated that in their view the agency 
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(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

did not have the authority to issue any 

revised interpretations of its 

regulations or directives with respect 

to the 1872 Mining Law.

Additionally, these groups were not in 

agreement with the report’s 

characterization of the impacts of the 

1872 Mining Act on sacred sites.

Changes to the report regarding GML 1872 include:

Amended Draft Report Recommendation II.D.1 reference to seeking new legislation. 

Modified Recommendation II.D.2 referencing mineral withdrawal authority. 

Multiple-Use Mandate—

Competing Obligations

Some Tribal commenters indicated 

that Forest Service policy should 

support a Forest Service 

decisionmaker’s ability to prioritize 

the protection of sacred sites. These 

commenters noted that treaty rights 

and other statutes provide the authority 

to do so. 

NA Some public groups indicated that 

adoption of the Draft Report’s 

recommendations would result in the 

exclusion of other uses and would 

violate the agency’s multiple-use 

mandate. 

Changes to the report regarding multiple-use include:

Added new text in the Executive Summary clarifying protection and accommodation of Indian sacred sites is compatible with and not contrary to 

the agency’s multiple-use mission.

NHPA—National Historic 

Preservation Act

Some Tribal commenters noted that 

the report left out many of the tools 

available under NHPA. These 

commenters noted that the report 

should clearly establish NHPA as a 

legal basis to work from and provided 

several examples of tools available 

Some of the other AI/AN noted that 

the report left out many of the tools 

available under NHPA. These 

commenters noted that the report 

should clearly establish NHPA as a 

legal basis to work from and provided 

several examples of tools available 

Some public individuals noted that 

there needs to be better use of NHPA 

(and specifically Bulletin 38) to 

protect traditional cultural properties 

including sacred sites.
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Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

under this statute, in particular Section 

106.

under this statute, in particular Section 

106.

Changes to the report regarding NHPA include:

Added new acknowledgement on the tools available for protection under the NHPA, and acknowledging that it is a procedural statute not 

guaranteeing an outcome. 

Revised acknowledgement on archeology and historic preservation. 

Added new text on NHPA in the “Legal Landscape” section

Added new figures in the “Legal Landscape” describing the (1) development and purpose of the NHPA and (2) outlining differences and 

similarities between sacred sites under E.O. 13007 and NHPA.

Clarified NHPA provisions throughout the document.

NFRTs Some Tribal commenters noted that 

the USDA and Forest Service should 

only be taking comment from FRTs. 

Other Tribal commenters noted that 

comments from NFRTs should be 

included with public comments.

Representatives of NFRT commenters 

in this category indicated that, in their 

view, there are existing statutes that 

require consultation with indigenous 

people and “Native traditional spiritual 

leaders.” 

Some public individuals noted that 

under the American Indian Religious 

Freedom Act, the Forest Service has 

an obligation to meet and confer with 

legitimate traditional practitioners 

regarding sacred sites. Additionally, 

these individuals requested that the 

next Farm Bill include language to 

allow for closures requested by 

traditional practitioners, whether or 

not they are affiliated with a FRT.

Changes to the report regarding NFRTs include:

Added new text in acknowledgements regarding comments received.

Sacred Places Some Tribal and ANC commenters 

were supportive of the concept and 

recommendations regarding sacred 

Some of the other AI/AN commenters 

indicated that a sacred place is the 

“most appropriate term” to use as it 

Some public groups rejected the new 

concept of sacred places as overly 

broad and subjective. These 
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FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

places in the report, noting that it more 

accurately describes the Tribal and 

AI/AN perspective of sacred areas and 

landscapes. These commenters often 

requested that the agency go further 

and provide specific guidelines for 

how this concept would be 

implemented.

Other Tribal commenters were 

concerned that the introduction of a 

new term such as sacred places would 

not necessarily result in additional 

protections to those areas that are now 

called sacred sites. 

Additionally, some Tribal commenters 

were concerned that that the report 

demonstrates that the Forest Service

does not understand what is sacred to 

Tribes.

best represents the “scope and variety” 

of what is sacred to Tribes. These 

commenters recommend that the 

agency go further to endorse this term 

and use it when E.O. 13007 is being 

implemented, as well as provide 

specifics on how it will be 

implemented.

Others of the other AI/AN 

commenters were concerned about the 

use of the term “sacred places” and, in 

their view, the “proliferation” of 

definitions that does not protect sacred 

sites. 

Additionally, these commenters 

recommend using terms that already 

exist rather than introduce new terms.

commenters noted that in their view 

this new concept would directly 

conflict with or contradict existing law 

and policy for example:

Current Case Law 

E.O. 13007 

Multiple Use Sustained Yield 

Act 

Administrative Procedures Act

U.S. Constitution 

Establishment Clause

Federal Land Planning 

Management Act

1872 General Mining Law

and several other examples

These public groups indicated that the 

new definition of “places” is vague 

and would create conflicts between 

Tribes and other national forest users, 

such as recreational interests, mining, 

oil and gas development, and grazing. 

Additionally, some of these public 

groups argue that the report 

demonstrates a willingness of the 

agency to give preference to AI/AN 

religious beliefs and that this will not 

withstand constitutional scrutiny.

Some public individuals indicated that 

in their view protection of sacred sites 

would not be achieved by use of the 

term “sacred place.” These 

commenters indicated that the real 
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(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

problem lies with the agency’s 

interpretation and implementation of 

what is a sacred site. 

Changes to the report regarding sacred places include:

Updated Acknowledgements to explain removal and describe proposed approach to addressing Tribes’ concerns about E.O. 13007’s definition.

Updated Acknowledgements to clarify role of sacred places in keeping with other multiple-use considerations and valid existing rights. 

Updated Recommendation II.A.1 to emphasize working with other Federal agencies.

Added Recommendation II.A.2 to cross-reference “sacred places” into recommendations around training.

Updated Recommendation II.A.3 to recommend directives revision.

San Francisco Peaks/Snow 

bowl

Some Tribal commenters noted that it 

was hard for them to take the report’s 

intentions seriously the pipeline for 

providing reclaimed water to make 

snow at the Snowbowl ski area was 

moving forward at the same time the 

Draft Report was developed and under 

review. Additionally, some of these 

commenters called for a moratorium 

on development activities at 

Snowbowl.

Some of the other AI/AN commenters 

called for the report to address current 

“threats” to sacred sites, including the 

pipeline for providing reclaimed water 

to make snow at the Snowbowl 

concession. Additionally, some of 

these commenters called for the Forest 

Service to “suspend” development 

activities at Snowbowl.

Other AI/AN commenters requested 

that the Final Report include the 

United Nations’ Report by the Special 

Rapporteur on the rights of indigenous 

peoples, Annex X, which evaluated 

the situation at the San Francisco 

Peaks/Snowbowl and recommends 

“the U.S. Government engage in a 

comprehensive review of its relevant 

policies and actions to ensure that they 

are in compliance with international 

standards in relation to the San 

Francisco Peaks and other Native 

Some public individuals noted that the 

Forest Service needed to stop all 

development of the pipeline at the 

Snowbowl concession and end the use 

of reclaimed water for making snow. 

Some Tribal commenters noted that it 

was hard for them to take the report’s 

intentions seriously since the pipeline 

for providing reclaimed water to make 

snow at the Snowbowl ski area was 

moving forward at the same time the 

Draft Report was developed and under 

review. 

Other public groups noted their 

support for the Snowbowl pipeline 

project and, in their view, the report 

mischaracterized the Snowbowl 

project. 
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FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

American sacred sites, and that it take 

appropriate remedial action.”

Changes to the report regarding Snowbowl include:

Updated the text regarding Snowbowl in the acknowledgement to include a summary of comments received.

Staffing/Hiring Some Tribal and ANC commenters 

noted their support for the report’s 

recommendation on “Staffing” as it is 

described in the report as well as the 

recruitment of Native Americans 

under the “Partnership” 

recommendations. Some of these 

commenters noted that only local 

AI/ANs should hold positions that are 

interpreting Tribal culture.

Other Tribal commenters noted that 

recruitment and hiring AI/AN people 

does not substitute for Government-toGovernment consultation, which 

would still be required regardless of 

presence of AI/AN people in the 

agency.

Some Tribal commenters called for the 

Forest Service to track and report the 

number of AI/AN hires annually as 

well as those appointed to standing 

advisory committees.

Some Tribal and ANC commenters 

noted their support for the report’s 

recommendation on “Staffing” as it is 

described in the report as well as the 

recruitment of Native Americans 

under the “Partnership” 

recommendations.

Some public groups noted that their 

companies employed AI/AN people 

who supported economic development 

on the NFS, because of the jobs this 

development creates for AI/AN 

people. These public commenters also 

noted that they supported Forest 

Service efforts to hire more AI/AN 

people because it was beneficial for 

relationships and communications 

with Tribes. 

Changes to the report regarding staffing/hiring include:

Added new text in the acknowledgements regarding hiring AI/AN people.

Revised staffing recommendations to clarify the intent of the recommendation and added additional recommendations.
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Themes 

(overall themes followed by 

themes listed alphabetically)

FRT and ANC Comments66 Other AI/AN67 Other Public Comments68

Terminology Some Tribal commenters disagreed 

with the use and definition of the term 

“Native American.” This was noted 

by some commenters as not being 

inclusive of Alaska Natives; others 

noted that this term was too broad and 

did not recognize the unique

circumstance of each individual Tribe.

Other Tribal commenters noted other 

terminology that should be addressed 

in the report including:

Use of the term “walk in the 

woods” as inappropriate due 

to its use by some Alaska 

Natives.

Use of Tribe vs. tribe as

inconsistent in the report.

Use the term “peoples” in 

place of “people.”

NA NA

Changes to the report regarding terminology include:

Eliminated the use of the term “walk in the woods” in favor of “walk the land together.”

Eliminated all uses of the term “Native American” and replaced with “AI/AN” (except when directly quoting from law, regulation, or other 

source).

Reviewed and updated report’s use of Tribe vs. tribe. 

Eliminated the use of the term “people” and replaced with “peoples” where appropriate.

Traditional Ecological 

Knowledge 

Some Tribal commenters noted that 

AI/AN representatives should be 

providing culturally relevant 

information and traditional knowledge 

Some of the other AI/AN commenters 

noted that Tribal representatives 

should be providing culturally relevant 

information in decisionmaking, not 

Some public groups were concerned 

that the definition of TEK as provided 

in the report is not a rigorous enough 

standard with which to make land use 
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in decisionmaking, not Forest Service

personnel.

Other Tribal commenters noted that 

the Forest Service needs to work with 

Tribes to involve traditional 

practitioners in discussions regarding 

sacred sites.

Some Tribal commenters noted that 

the Traditional Ecological Knowledge 

(TEK) definition misses the key point 

of “spirituality” and its connection 

with the environment that is important 

to AI/AN peoples.

Forest Service personnel, especially in 

regards to trainings on traditional 

knowledge.

decisions, and that use of TEK could 

run counter to the Data Quality Act, 

and USDA’s own policies on 

“Scientific Integrity.”

Some public individuals suggest that 

TEK is not given enough credit in the 

report or by the Forest Service and that 

agency personnel need more training 

and understanding of TEK.

Changes to the report regarding traditional knowledge include:

Updated traditional practitioner definition.

Revised Acknowledgement to reflect comments received and to recognize use of TEK in supplementing peer-reviewed and academic sciences.

Training Some Tribal commenters noted that 

training provided by the Forest Service 

should only be based on how to work 

with Tribes. It should not be specific 

to sacred sites or what is sacred to 

Tribes—only Tribes can speak to this 

if they choose to. 

Additionally, Tribal and ANC 

commenters offered a wide range of 

example topics that the Forest Service

should incorporate into training.

Some of the other AI/AN commenters 

noted that Tribal representatives 

should be providing culturally relevant 

information in decisionmaking, not 

Forest Service personnel, especially in 

regards to trainings on traditional 

knowledge 

Some of these commenters noted that 

the Forest Service should coordinate 

with existing training programs and 

courses, such as those offered by interTribal organizations.

Some public groups noted their 

support for the report’s 

recommendation for more training of 

Forest Service personnel on working 

with Tribes. However, some of these 

groups were concerned with how the 

concept of sacred places would be 

described in training sessions.

Some public individuals commented 

that rather than creating new 

definitions such as sacred places, the 

Forest Service needs to spend time on 
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themes listed alphabetically)

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Other Tribal commenters noted that 

trainings which include information 

specific to a Tribe should be provided 

only by that Tribe. Additionally, 

Tribal commenters noted that Native

peoples should be giving the training, 

not non-Indians. Face-to-face training 

with Tribal members and Forest 

Service personnel was recommended.

training and prioritization of sacred 

sites. 

Changes to the report regarding training include:

Added additional detail to training recommendations.