Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

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

A. AIRFA Protections Do Not Extend Beyond Those of the First Amendment's Free Exercise Clause

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

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

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

B. Sacred Sites: Access, Confidentiality, and Notice of Impacting Actions

1. Access to and Confidentiality of Their Locations

AIRFA also affirmed the right of American Indians to have access to their sacred places. In 1996, President Clinton signed Executive Order (E.O.) 13007, Indian Sacred Sites, (122) providing that, in managing federal lands, federal agencies, to the extent practicable, permitted by law and "not clearly inconsistent with essential agency functions," shall (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners, and (2) avoid adversely affecting the physical integrity of such sacred sites.