Date of this Version
31 Environmental Law Reporter 10689 (2001)
The federal public lands—national forests, parks, and rangelands—are widely known for their vast natural resources: timber; range; minerals; watersheds; wildlife; and sweeping vistas of incredible beauty and diversity. No less notable are the cultural resources found on the public lands. Some of the earliest withdrawals of public lands from homesteading or other disposition occurred because of their cultural and historic importance.1 Preserving and allowing access to resources with cultural significance are critical to sustaining diverse, viable communities as well as our national, collective heritage. For American Indian people in particular, certain places, physical features, and objects on the public lands hold deep cultural and spiritual significance. Without ongoing relationships with a defined physical “place,” the integrity of many contemporary American Indian societies could be jeopardized.2 This Article provides an assessment of federal law governing the management and preservation of cultural resources on public lands, focusing on resources of interest to American Indians. It reviews federal statutes and regulations governing cultural and historic resource protection, as well as laws applicable to specific categories of federal public lands. In addition, it assesses the National Environmental Policy Act (NEPA),3 an integral part of the decisionmaking process for most activities on public lands, and its use as a tool for protecting the resources and accommodating their use.
The principal cultural resource statutes are the National Historic Preservation Act (NHPA)4; the Archaeological Resources Protection Act (ARPA)5; and the Native American Graves Protection and Repatriation Act (NAGPRA).6 These laws provide procedural mechanisms through which interested parties can participate in decisionmaking processes, as well as substantive protection for cultural and historic resources. The NHPA requires federal agencies to engage in consultation, often accomplished in conjunction with the NEPA process, to take into account the effect of federal undertakings on historic properties and traditional cultural resources. ARPA prohibits the excavation or removal of archaeological resources from federal lands without a permit. The most recent addition to this trilogy of cultural resource laws, NAGPRA, provides for the repatriation of American Indian remains and cultural items imbedded in federal and tribal lands. These statutes and their implementing regulations provide significant roles for tribal governments, in recognition of their inherent sovereign interests in tribal historic, cultural, and religious resources.7 The public lands statutes, the Federal Land Policy Management Act (FLPMA)8; the National Forest Management Act (NFMA)9; and the National Park Service Organic Act,10 play an affirmative role in cultural resource management and preservation by recognizing cultural values in land management plans and by preventing the degradation of the resources. TheNFMAandFLPMAdirect that multiple uses be allowed on the public lands in a manner that can be sustained over time. The National Park Service Organic Act provides for conservation and public enjoyment of National Park System lands and resources. Together with the cultural resource statutes and NEPA, these laws encourage, and in some cases may even mandate, federal accommodation of cultural values of American Indian tribes.
No discussion of cultural resource management on the federal public lands would be complete without considering the constitutional implications of decisions affecting cultural resources, many of which hold spiritual or religious significance. This Article provides a brief overview of the First Amendment’s religion clauses, and concludes that, although the Free Exercise Clause has not afforded concrete protection for cultural and religious resources on public lands, neither has the Establishment Clause prevented land management agencies from accommodating interests in such resources.11 Accommodation of American Indian interests is consistent with the unique federal relationship with tribes, as well as the policies expressed in the American Indian Religious Freedom Act (AIRFA),12 and the Executive Order on Sacred Sites, which directs agencies to accommodate the use of sacred sites and to avoid actions that adversely affect their physical integrity.13 Moreover, the Religious Freedom Restoration Act (RFRA),14 may prohibit federal land managers from taking action that substantially burdens religious interests absent compelling reasons.