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Galanda and Juarez: 21st century Indian wars

Off-reservation cultural property protection

Part one

''Sacred places are the foundation of all other beliefs and practices because they represent the presence of the sacred in our lives. They properly inform us that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires ... There probably is not sufficient time for the non-Indian population to understand the meaning of sacred lands ... We can but hope that ... protection be afforded these sacred places before the world becomes wholly secular and is destroyed.'' - Vine Deloria Jr., ''God is Red''

On Aug, 12, The New York Times ran an article on the front page of the Sunday Business section titled ''Far From the Reservation, but Still Sacred?'' The article described the increasing battles between non-Indian society, particularly state government and private developers, and Indian people concerning off-reservation sacred places. Calling such disputes ''a new kind of Indian war,'' the article described ''[t]he battlegrounds [as] ancient sites like the religious circles, burial grounds and mountaintops across the West that Indians hold sacred.''

Sacred lands are indeed under attack. Developers are willing to pillage such lands whenever profitable. By way of example, as the Times piece explained, an energy development company threatens to build a $4 billion oil refinery atop lands believed to be the final resting place for Quechan ancestors. And, if state governments are not likewise seeking to excavate Indian burial grounds or sacred lands for highways, sewer systems or other public works projects, state decision-makers are attempting to make it easier for private developers to do so.

In March, the Idaho Legislature unanimously passed a law that will allow state officials to automatically unearth tribal ancestors from their finally resting places when discovered on private lands. An Idaho state spokesman cited digging up ancestral remains as a great solution because it would be done ''at no cost to the landowner and with no delay to the project.'' Currently, the Washington state Legislature is studying ''the legal processes to permit the removal of human remains from property'' so development can also proceed on ceded lands in Washington without cost or delay.

Tribal governments and citizens must stand prepared for battle in this new kind of Indian war. This is the first of a two-part series designed to equip tribes with the legal weaponry that they need to defend their sacred places.

We must briefly qualify the words ''cultural property.'' We fully recognize that we as Indian people do not consider or talk of our ancestors' remains or sacred places as ''property.'' We understand how offensive it might sound to tribal spiritual people to hear talk of their dead as goods or belongings. But, legally speaking, the new Indian war is at its core a property rights battle - between nontribal landowners' Jeffersonian rights to enjoy their property as they please, and tribal rights to have their ancestors and sacred places left alone. Vine Deloria was correct when writing that the non-Indian world may never understand the sacredness of ancestral places; but non-Indians can and do intuitively understand notions of property rights. Accordingly, tribes must fend off threats in part through property rights discourse, whether in a court of law or court of public opinion.

Importantly, the Native American Graves Protection and Repatriation Act of 1990, which affords tribes significant legal protection for Indian graves discovered on tribal, reservation or federal lands, does not explicitly protect tribal remains discovered on public or private lands. As such, this series seeks to help Indian country fill in the legal gaps regarding the protection of tribal cultural property on lands historically occupied but later ceded by tribes.

Tribal ways, federal Indian law and Anglo-American concepts of property rights, taken together, dictate the nature of tribal rights in ancestral remains, graves, artifacts and sacred places on public or private lands in the United States. Tribal ancestors occupied, roamed and used vast territories, including all of modern-day America. In treaties with the United States, tribes, in return for giving up aboriginal title to most of those territories, agreed to move to reservations and made other express concessions. Tribes, however, reserve all rights that they did not expressly relinquish by treaty.

Federal legal canons of construction dictate that if a treaty is silent on an particular right, then the tribe did not expressly bargain it away; and that such documents are interpreted as the tribes would have understood them at signing in the mid to late 1800s. We are not aware of any tribe that expressly relinquished by treaty its pre-existing rights to off-reservation ancestral remains, graves, artifacts and sacred sites.

Under Anglo-American law, property rights comprise a ''bundle of sticks'' that include rights to access the property, to use it in certain ways or not use it at all, and to protect it. Courts often look to tribal law, whether oral or codified, to determine tribal property interest in artifacts and remains. In Chilkat Indian Village v. Johnson, the highest court in the West held that ''whatever proprietary interest the [tribe] has in the artifacts is a creature of tribal law or tradition wholly unconnected with federal law.'' The same holds true for ancestral remains (which Indian people do not categorize as ''artifacts''). So, not only did the tribes reserve their rights to protect their dead and sacred places within ceded lands, but Indian property rights to such protection exist as a matter of tribal law and custom, in addition to Anglo law.

Moreover, under tribal law, tribes can arguably regulate ''off-reservation activities that have significant effects within the reservation,'' which would include the disturbance or destruction of Indian burial grounds and graves on public or private lands (Wisconsin v. EPA). Tribes also retain usufructuary rights - i.e., rights to enjoy properties that belong to somebody else - in their off-reservation cultural properties (Minnesota v. Mille Lac Band of Chippewa Indians). Among those rights, tribes have reserved access rights to their cultural properties and ancestors' remains on non-tribal lands, particularly within historic fishing, hunting and gathering grounds (U.S. v. Washington).

Further, state judge-made law also recognizes that tribal people retain property interests in remains and artifacts located on public and private lands (Charrier v. Bell). Conversely, some state judicial decisions also hold that nontribal landowners' rights do not include the ''right to disinter [Indian] remains and build in the area'' (Hunziker v. Iowa). In particular, state common law confirms that relatives such as tribal descendants have property rights in their ancestors' remains, including the right to ensure proper treatment of the ancestors - which may include undisturbed rest (Bash v. Fir Grove Cemeteries).

Indian country, unite - to protect and defend sacred places and tribal ancestors ''before the world becomes wholly secular and is destroyed.''

(Continued in part two)

Gabriel S. Galanda and Debora Juarez are lawyers with Williams Kastner's Tribal Practice Team in Seattle. Galanda is a descendant of the Nomlaki and Concow tribes and enrolled with the Round Valley Indian Tribes. Juarez is an enrolled member of the Blackfeet Nation.