Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

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

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

2. Recognizing Government-to-Government Relationships

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

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

* Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. (109)

IV. THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT AND COMPLEMENTARY RELIGIOUS PROTECTIONS

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

   Anon., Kwakiutl, 1886
   (Protesting anti-potlatch law) (110)

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

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

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