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Protecting Native Peoples' Sacred Places

Spring emerged in Washington with pear blossoms and budding promises of protection for Native Peoples' sacred places. The end of this winter-count hide would read:

?The Supreme Court stood behind the Hoopa Valley Tribe's protection of a ceremonial area, Mar. 18,

?Native people and friends gathered in Washington, D.C., to work on ways to protect sacred places, Mar. 19-22,

?The Senate hearing on a cash-for-land bill was canceled for lack of Western Shoshone support, Mar. 20,

?The Interior department revived its task force on sacred lands, Mar. 20.

At a time when Supreme Court decisions have not favored tribal jurisdiction, especially over non-Indians, the high court declined to review an appellate ruling that upheld the Hoopa Valley Tribe's jurisdiction over its cultural resources on property owned by a non-Indian.

In the Tribe's land-use plan for its northern California reservation, a one?half?mile no?logging zone was drawn around the White Deerskin Dance Ground to protect it from timber harvesting. A non-Indian, Roberta Bugenig, bought fee simple land inside the buffer zone and wanted to cut down trees. The Tribe said, "No," but she started chopping anyway. She got a state logging permit, which was later revoked because "no timber operations are allowed ... on sites that have significant or religious importance to California Indians."

Bugenig, represented by the Pacific Legal Foundation, challenged tribal authority to protect the ceremonial area and congressional authority to delegate tribal jurisdiction over fee land owned by a non-Indian. Happily, their petition for review was not convincing and the Supreme Court let the Ninth Circuit decision stand.

As a rule of thumb, when a decision is good for Indians, it's usually interpreted as a single-issue ruling. When it's bad, it gets applied to every Indian. This ruling involves one tribal land-use plan, under one statute, under one Congressional delegation of authority under the Commerce Clause.

With that caution, certain other Native nations do have a precedent for using their own statutory delegations to protect their sacred places, even those that involve land owned by non-Natives.

Given that, it is important that lawyers resist doing what was done with the American Indian Religious Freedom Act. That law was enacted in 1978 as a policy statement with certain protections for sacred places, but it specifically did not provide a way to get into court to protect them.

Just before the religious freedom measure went to the House floor, Rep. Thomas Foley, D-Wash., told the bill's lead sponsor, Rep. Morris K. Udall, D-Ariz., that he would kill the bill if it contained a cause of action for sacred lands.

Foley, then-chair of the agriculture committee, was stumping for the Forest Service, which wanted to log in Native peoples' sacred places, including one in northern California. Udall, in order to achieve passage of the religious freedom policy, had to make a floor statement that the bill had no teeth.

Despite this, desperation cases were taken to court anyway, with the inevitable rulings that Congress did not create a cause of action in the Religious Freedom law. The Supreme Court also ruled that the Religious Freedom law required federal agencies to avoid actions causing adverse impact on a Native sacred place, even visual and audial impact.

It had taken a very long time to gain religious freedom protections of any kind. I was privileged to be a part of a gathering in June of 1967 at Bear Butte in South Dakota, where I was the youngest adult and my two-year-old daughter was the youngest child. At the time, I had no idea that I would ever move to Washington or work in policy.

I did not know that the subjects emphasized by the traditional spiritual leaders there would command my attention over the decades ? achieving religious freedom, gaining respect in popular culture, protecting our sacred places and freeing our dead people and living sacred beings from museums. (We did not use the word "repatriation" then and it took more than 20 years to attain repatriation laws.)

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That gathering produced an effective coalition for Indian religious and cultural rights that led directly to the religious freedom, repatriation and sacred sites laws. There is reason for optimism when people gather for a good purpose.

The March gathering of the coalition to protect sacred places was as welcome as the new season. Its presence in Washington emphasized that the buy-out bill for Western Shoshone lands had little support. The fact of it also prompted the revitalization of Interior's task force.

Now, on the eve of the 25th Anniversary of the American Indian Religious Freedom Act, the Senate Committee on Indian Affairs is gearing up to conduct a series of oversight hearings on progress made and action needed to protect sacred places. This will produce a current record of experience and form the basis for future legislative action.

A variety of mechanisms have been used by federal agencies to protect sacred places, before and since the Religious Freedom law, and most modern administrations have protected at least one sacred place.

Mount Adams was returned to the Yakama Nation by an executive order signed by President Richard M. Nixon, who also signed the statute returning Blue Lake to Taos Pueblo. But both the Nixon and Ford Justice departments opposed omnibus religious freedom legislation.

President Jimmy Carter made good on his campaign promise to sign a religious freedom bill that Congress would send him. His administration returned Taos Bear Lake through a consent decree and 120 acres of Bear Butte to the Cheyenne and Arapaho Tribes, for all who traditionally used it for cultural purposes, through an Interior administrative purchase and conveyance.

President Ronald Reagan signed the Zuni "Heaven" bill that was championed by Sen. Barry Goldwater, R-Ariz. President George H.W. Bush approved the repatriation laws protecting Native burial grounds.

While his administration opposed legislation protecting sacred places, President William Jefferson Clinton did sign an executive order on Indian sacred sites. It restated the Religious Freedom law and required federal agencies to report annually to the White House, a practice that fell off during his second term. His Interior department made a last-minute decision to protect Quechan Indian Pass from mining, but it was reversed by the incoming administration.

President George W. Bush may have an opportunity to approve legislation on one or many sacred places. His administration has taken an important first step in breathing life into Interior's task force on sacred lands. Interior's first action should be to reverse its ill-considered position on Quechan Indian Pass and reinstate the protections it removed so hastily.

There are many sacred places that are being desecrated, damaged and destroyed right now. The federal agencies are doing some of it and they are permitting or looking the other way while non-federal entities are doing their share.

These are places of origin, ceremony, commemoration and vision questing. Mostly, they are places where Native people go to pray and give thanks for the good day for all the world ? activities for which Indian people once were imprisoned, starved and worse by the federal government.

These sacred places went into the public domain and private hands when the federal government put Indians on reservations and made it a federal offense for Indians to worship in traditional ways or to travel to traditional places. At the same time, Christian denominations were federally funded to covert Indian people to their religions.

In light of this sorry history, it is both arrogant and hypocritical for any lawyer to raise separation of church and state or establishment issues when addressing Native American religious freedom.

It is both lawful and righteous for the federal government to take actions to remove barriers that stand in the way of the free exercise of Native traditional religions and to take remedial action to protect those sacred places that can be protected.

The federal agencies should use all available laws and mechanisms to protect these places from further encroachment. They have an affirmative obligation to do so.

The White House and Congress should make certain that they do it.