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Haensly: Off-reservation cultural property protection

Part two

Last week's article by Gabriel Galanda and Debora Juarez addressed threats to off-reservation sacred places, particularly Indian burial grounds, and described how tribes can use property rights principles to defend such places and protect tribal rights. This piece focuses on critical proactive steps that tribes can take to help shield their off-reservation sacred places from development and destruction.

The newspapers are rife with stories about harm or threatened harm to off-reservation places that are held sacred by tribes and their members. Tribes find themselves scrambling to insert themselves into projects that are well under way. They are faced with the daunting task of convincing - or, in many cases, forcing through lawsuits - developers and government agencies to backtrack.

Many tribes desire to protect and perpetuate their heritage, which is often tied to sacred sites located outside reservation boundaries. Tribal members use cultural resources as teaching tools for younger generations, and rely upon sacred sites for their members' traditional and modern-day practices. So, particularly for tribes with smaller reservations, cultural heritage is intrinsically tied to sacred places that are located outside reservation boundaries.

Tribal attorneys must piece together a handful of legal tools to help their clients protect off-reservation sacred sites. The particular tool used usually depends upon whether the off-reservation site is located on federal, state or private land. And, these tools are often less than sharp, particularly when a sacred site is not known to contain graves or artifacts. So, the more tribal law that is available, the better.

Understanding the value of tribal law requires understanding the limits of federal, state and local laws. If a sacred place happens to be on federal land, tribes can turn to federal laws such as the American Indian Religious Freedom Act, the Religious Freedom Restoration Act and the National Environmental Policy Act. Taken together, these acts require that the government preserve access to sacred sites and not burden Native Americans' religious exercise without a compelling reason. Sometimes these laws work for tribes and sometimes they do not, particularly when a tribe is trying to stop rather than condition a project.

Tribes can also take advantage of Executive Order 13007, which requires that federal agencies accommodate access to sacred sites and avoid physically harming them. Notably, however, the executive order - like most executive orders - declares that it creates no enforceable right or trust responsibility.

Getting a site listed on the National Register of Historic Places helps, but does not guarantee protection. National Register listing is a planning tool that places hurdles, not obstacles, in front of developing a site. A governmental or private landowner can usually clear the hurdles if it wants to develop the property.

Most states and local governments lack laws that expressly protect Native American sacred sites located on public and private lands. Tribes trying to control development on these lands usually must cobble together general state and local environmental laws, some of which may mention cultural resources. Here are a few critical steps that tribes can take:

* Declare, in tribal law, the tribe's property and other legal rights in off-reservation sacred sites and in the access routes to them. Tribal ancestors used these places and, in many cases, created cultural properties at the sacred sites - properties now described as artifacts and cultural places that are embedded in the ground and cannot be removed without destroying the cultural significance (e.g., spiritual cleared circles, rock art). When tribes relocated to reservations, they did not expressly give up the rights that they previously held in their cultural properties. Therefore, tribes retain all of these rights today.

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* Avoid the legally ambiguous term ''cultural resources,'' and use the term ''cultural property'' whenever possible.

* Create a tribal register of sacred sites, designate specific sites on tribal registers, and decide when and how to share this information with other governments and developers.

* Organize and maintain an ever-growing database of written information that supports the tribe's cultural connection to sacred sites. Tribes can decide on a case-by-case basis whether and how to share this information - perhaps during negotiations with developers and agencies or in court. The internal database might include transcripts of interviews with tribal elders who are familiar with historic practices and beliefs, as well as records of interviews that were previously taken by anthropologists and others who have studied the tribe's culture.

* Describe in tribal law the preferred methods for conducting off-reservation inventories and handling accidental discoveries of cultural property.

* Ensure that tribal constitutions extend tribal jurisdiction, including tribal court jurisdiction, over off-reservation cultural properties.

There are caveats. Tribes should be aware that they will likely be setting precedent where sacred sites are concerned, as few courts have decided tribes' legal rights in cultural properties other than those that are known to contain artifacts and human remains. And, while state and federal courts are highly likely to consider tribal law when deciding cases, they are unlikely to find tribal laws controlling, to the exclusion of state and federal law. But these courts will not ignore tribal laws. Responsible judges will acknowledge tribal property rights and work tribal law into their decisions. So, tribes that adopt strong cultural property laws have much to gain and little to lose.

Two recent court decisions involving sacred sites on federal lands demonstrate the considerable effort and information-sharing that tribes must undertake to win. In Navajo Nation v. U.S. Forest Service, the 9th Circuit Court of Appeals held that the Forest Service correctly prohibited a ski resort from creating artificial snow with recycled sewage water at a sacred site. The resort is located at the San Francisco Peaks, which numerous tribes consider sacred. The tribes had created an incredibly strong written record that revealed the Peaks' sacred underpinnings. Before sharing this information and having tribal spiritual leaders testify in court, these tribes likely weighed the negative aspects of revealing inherently private beliefs against the benefit of protecting the Peaks.

In The Access Fund v. U.S. Department of Agriculture, the 9th Circuit upheld the Forest Service's prohibition on rock climbing at Cave Rock, a sacred site of the Washoe people. The Washoe believe that rock climbing desecrates Cave Rock. The court, after considering the ample evidence amassed by the tribe, found that the Forest Service had not violated the Constitution's Establishment Clause that prohibits the government from promoting religion. Rather, the Forest Service had protected a ''secular purpose''; i.e., the preservation of a historic cultural area.

Many tribes have cultural resource codes in place. Tribes should consider taking a second look at their codes and constitutions, and ensure that their legal tools are as sharp as possible.

Sharon Haensly is an attorney with Williams Kastner's Tribal Practice Team in Seattle.