Law, College of


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Published in UNIVERSITY OF COLORADO LAW REVIEW Vol. 73 (2002), pp. 413-520.


This Article integrates constitutional principles, statutory requirements, and federal policy governing the use and preservation of cultural resources to sketch out a decision-making framework for public land managers. Specific examples of cases where American Indian interests have been pitted against competing demands at Devils Tower National Monument, the Indian Pass area of the California Desert, and the Medicine Wheel are examined to illustrate optimal solutionssolutions allowing the greatest possible accommodation of cultural, even spiritual, interests, while protecting the resources from degradation. The conflicts at these sites, and the opportunities presented by these conflicts, show that federal agencies can adopt reasonable accommodations without violating either statutory or constitutional mandates.

Part I of the Article draws upon history, literature, and art to demonstrate the cultural and spiritual importance of public lands and resources to our national heritage and to closely affiliated individuals and groups. These same sources serve as a testament to the systematic displacement of American Indians from their aboriginal lands, the destruction of tribal burial grounds, and the overt suppression of cultural practices in a concerted effort to assimilate tribes into Anglo-American culture. Part II examines contemporary congressional provisions encouraging the accommodation of tribal cultural interests. The governing statutory requirements for specific categories of public lands, from the conservation objectives applicable to National Park System lands to the multiple use requirements for National Forests and Bureau of Land Management lands, are reviewed in Part III. Finally, Part IV assesses the constitutional implications of federal decisions regarding the management and prioritization of tribal cultural resources.

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