Numerous sacred sites are located throughout North America; unfortunately, most are threatened with tourism, recreation, resource extraction, and development. For instance, the Zunis' Salt Lake in New Mexico (home to Ma'l Oyattsik'I, an Indian deity) and Bear Lodge (Mato Tipi, also known as Devil's Tower, a sacred butte in the Black Hills,) both are places where different tribes come together to perform traditional ceremonies and rituals. However, in 1996, Salt Lake became threatened with a coal-mining project. Similarly, Bear Lodge plays host to rock climbers searching for the preeminent climbing experience. Such religious intolerance and cultural disrespect leaves many American Indians searching for various ways to protect their sacred sites. Congressional legislation, the courts, and international law, which are increasingly favoring American Indian claims, are finding ways to protect and preserve these culturally significant properties.
Currently, several legislative acts provide some protection for sacred sites. For instance, the Antiquities Act of 1909 allows sacred properties to be protected from human destruction through presidential declaration. Similarly, the Historic Sites, Buildings, and Antiquities Act of 1935 enables the Secretary of the Interior to protect, preserve, and maintain historic sites by establishing historic preservation programs and contracting with states to protect such properties.
Likewise, the Federal Lands Policy Management Act and the National Forest Management Act of 1976 require public and forest lands to be managed in a manner that protects the quality of historical, archaeological, and cultural values of such lands. Accordingly, the Acts mandate that management programs minimize damage to any cultural values and grant the secretary authority to take necessary action to prevent undue degradation of lands.
Similarly, in recognition of the impact of private destruction to Indian lands, Congress passed the Archaeological Resources Protection Act of 1979, which requires federal land managers to notify and consult with affected Indian tribes, prior to the issuance of a permit that may result in harm to, or destruction of, any religious or cultural site.
Perhaps the foremost legislation utilized for the protection of sacred sites is the National Historic Preservation Act, which was enacted in 1966 to preserve historical and cultural properties. According to the Act, once the secretary identifies a property as significant in American history, archaeology, or culture, then all federal undertakings affecting such property must take into account their effect on the site and recommend to an advisory council any measures to avoid, minimize, or mitigate adverse effects on it.
However, despite congressional intent to afford protection to tribal sacred sites, American Indians remain unable to adequately protect the integrity of such properties, including tribal access. Consequently, American Indians have judicially attempted to preserve and protect their traditional cultural properties by asserting constitutional religious violations.
Religious free exercise claims have consistently been rejected. Specifically, despite American Indian complaints that any proposed federal undertaking on, adjacent to, or near a sacred site would make it difficult to practice religious ceremonies, because there is no governmental threat of fines, incarceration, or the loss of governmental benefits, the courts have determined that no religious constitutional burden exists and have therefore rejected the Indians' free exercise claims.
American Indians have succeeded in protecting sacred sites under the Establishment Clause (First Amendment) of the U.S. Constitution. Specifically, the courts have determined that federal agency plans, which remove barriers to Indian religious worship and are noncoercive and secular in purpose, do not advance or inhibit religion. Consequently, agency decisions to deny oil and gas leasing, limit timber sales, and issue climbing management plans for religious accommodations at sacred sites do not violate the Establishment Clause.
Nevertheless, American Indians continue to struggle to protect sacred sites, and lobbying Congress to enact legislation that specifically addresses sacred site protection may be a viable solution. In recent years, Congress has favored protecting Indian religious practices. For instance, Congress enacted the American Indian and Religious Freedom Act to protect and preserve the inherent right of American Indians to believe, express, and exercise their traditional religions including access to sites and the freedom to worship through ceremonies and traditional rites. In addition, Congress passed the Native American Graves Protection and Repatriation Act to protect Indian graves and repatriate cultural items to tribes. Furthermore, Congress exempted Native American Church practitioners from federal laws criminalizing the possession of peyote.
Similarly, the executive branch has recognized the importance of American Indian religious practices and access to sacred sites. For instance, President Clinton issued Executive Order 13007, which requires all federal agencies, in the management of federal lands, to "accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners" and avoid adverse effects to the physical integrity of such sites. Likewise, the Department of Interior recently promulgated secretarial orders that require agencies to identify the potential effects of governmental activities on Indian trust lands and to consult with tribes when such activities affect tribal resources.
In accordance with such agency directives, federal land management agencies have developed programs preserving American Indian access to sacred sites. Specifically, in 1994, the Fish and Wildlife Service issued a policy requiring the agency to respect American Indian cultural values when planning and implementing programs. Similarly, the National Park Service developed a climbing management plan for Bear Lodge in 1995, which requests rock climbers to refrain from climbing the butte during the month of June so that American Indians may peacefully perform sacred religious ceremonies.
However, if legislation and executive policies fail, an international appeal may be a more workable solution. The economic development of sacred and cultural sites of American Indians and of other indigenous peoples throughout the world has prompted an international debate concerning the destruction of such properties. Accordingly, the United Nations drafted the Declaration on the Rights of Indigenous Peoples, which requires nation-states to preserve and allow a right of access to the properties and sites of religious and cultural significance for indigenous peoples. Although the declaration mandates that states should "take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected, and protected," the document lacks enforcement provisions. Nevertheless, the United Nations has brought indigenous sacred site claims to the forefront of international policy that may lead to stronger protection of such sites in the near future.
In this manner, American Indians may protect sacred sites under international cultural property law, which would provide international protections for properties of significant cultural value. Because sacred sites define a group's culture, assist in the members' understanding of the past, and reflect the group's visualization of themselves, such properties necessarily fall within the definition of cultural property. Thus, inclusion of sacred sites in cultural property theories would allow for their protection in the international arena.
Current sacred site legislation is limited and judicial support of agency decisions can adversely affect sacred sites and access to them. However, because recent U.S. congressional, executive, and agency policies favor the protection of American Indian religious practices, national and international enforcements specifically protecting sacred sites from desecration and destruction may be in the near future.
J. Landon K. Schmidt
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