Cultural resource preservation law: the enhanced focus on American Indians.

To us the ashes of our ancestors are sacred and their resting place is hallowed ground. Our religion is the tradition of our ancestors--the dreams of our old men, given them in the solemn hours of night by the Great Spirit," and the visions of our sachems; and is written in the hearts of our people.

Seathl, Duwamish chief (1)

I. INTRODUCTION

In 1831 the United States Supreme Court first characterized the relationship of Indian tribes to the United States as being like that of a ward to a guardian, making the federal government a trustee. (2) Today, the concept of "trust" with respect to American Indians is more aptly defined as a responsibility of federal agencies to foster trust among Indian tribes through a government-to-government relationship that reflects respect for their sovereign status.

That evolution in the concept of trust has occurred over the past 30 years, as cultural resource preservation laws have gradually adopted an enhanced focus on American Indians, or Native Americans. (3) These laws have progressed from fostering scientific information gathering through protection of archaeological research and preservation of ancient cultures to recognition of American Indian cultural rights.

American Indian cultural rights protected today include control over the disposition of human remains of lineal descendants, the return or repatriation of objects of cultural patrimony, (4) religious freedom and the practice of sacred rituals, access to sacred sites on federal property, and consultation with federal agencies regarding preservation and protection of cultural resources. (5) Additionally, the concept of American Indian tribes as sovereign nations is formally recognized through executive orders and official policy requiring that the Department of Defense (DoD) and its military services conduct affairs with American Indian tribes on a government-to-government basis.

II. FROM THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT (ARPA) TO THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)

   My people, before the white man came you were happy. You had many
   buffalo to eat and tall grass for your ponies--you could come and go
   like the wind. When it grew cold you could journey to the valleys of
   the south, where healing springs are; and when it grew warm, you
   could return to the mountains of the north. The white man ... dug up
   the bones of our mother, the Earth. He tore her bosom with steel. He
   built big trails and put iron horses on them.

   Wovoka, Paiute (6)

A. The Archaeological Resources Protection Act

1. Predecessor Provisions

In the nineteenth century, American Indian personal property, including remains of their deceased, was routinely collected by the federal government, ending up in federal collections, public museums such as the Smithsonian Institution, and even personal collections. In the twentieth century, passage of the Antiquities Act of 1906 (7) set up a permitting requirement (enforceable through criminal sanction) for excavation on federal lands. This was to enable the government to control the data recovery of archaeologists. The Act protected any historic or prehistoric ruin or monument, or any object of antiquity situated on land owned or controlled by the federal government, to include American Indian lands. Although the Act protected antiquities, it did not protect cultural rights. It neither recognized tribal laws nor tribal jurisdiction over Indian lands. (8)

In 1974, the Ninth Circuit Court of Appeals declared the Antiquities Act unconstitutionally vague for failing to define the term "object of antiquity." (9) Overall, the Antiquities Act is still used for the regulatory purpose of declaring national monument land, (10) but the Archaeological Resources Protection Act has essentially superceded its permitting and prosecution sections.

2. Passage of the Archaeological Resources Protection Act

In 1979, passage of the Archaeological Resources Protection Act (ARPA) (11) strengthened federal control over "archaeological resources found on non-Indian federal lands. (12) Like the Antiquities Act before it, ARPA prohibits unauthorized excavation, requiring private persons to obtain permits to excavate on federal lands. (13 Additionally, Indian tribes14 must be notified 30 days prior to issuance of a permit if excavation may result in harm to a tribal, religious, or cultural site. (15) Indian tribes are not required to obtain ARPA permits to remove resources from their own reservations, and a tribe may issue permits to its own members, (16) Archaeological resources on Indian lands belong to Indian tribes. (17)

ARPA was devised by scientists to preserve and protect archaeological sites, to include American Indian sites. No American Indians, however, were involved in its drafting. In addition to prohibiting actual or attempted excavation, removal, alteration, damage or defacement of archaeological resources without a permit, ARPA provides for criminal (18) and civil penalties for selling, purchasing, exchanging, transporting, receiving, or offering to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated or removed from federal or Indian land. (19) Moreover, ARPA requires the federal government to keep the location of archaeological sites confidential if disclosure would create a risk of harm to the site. (20) Therefore, information regarding the location of ARPA sites on federal land is not subject to Freedom of Information Act requests. (21) Tribal notification is not considered to be a public disclosure.

Military installations encompassing archaeological sites must strive to balance the right of public access with preservation and protection responsibilities, including Indian tribe requests for non-disclosure of site locations for religious or cultural reasons. (22)

B. The Native American Graves Protection and Repatriation Act

It was not until 1990, with passage of the Native American Graves Protection and Repatriation Act (NAGPRA), (23) that the American Indian community was united with the scientific community in balancing science with cultural rights. Congressman Morris Udall said it was the greatest piece of legislation he had ever been associated with, advancing a civil rights standard that hadn't been seen since the mid-1960s. (24)

NAGPRA acknowledges a government-to-government relationship between the United States and Indian tribes. (25) It requires all federal agencies, with the exception of the Smithsonian Institution, (26) to consult with lineal descendants, Indian tribes, (27) and Native Hawaiian (28) organizations prior to intentional excavations and immediately following inadvertent discoveries of cultural items on federal or tribal lands. (29) It also requires federal agencies and museums that receive federal funds to inventory and, if requested, to repatriate (30) Native American cultural items to lineal descendants or culturally affiliated Indian tribes and Native Hawaiian organizations. (31) Cultural items under NAGPRA include human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony. (32)

1. Consultation Requirement

With respect to planned excavations on federal lands, NAGPRA requires federal land managers to engage in prior consultation with potentially affected lineal descendants, Indian tribes, and Native Hawaiian organizations. (33) Consultation, in addition to immediate notification, must also take place with appropriate Indian tribes upon inadvertent discovery of cultural items on federal lands. (34)

Federal agency responsibility with respect to inadvertent discoveries includes an initial cessation of activity for 30 days, reasonable efforts to protect the discovered items, and immediate oral notification to culturally affiliated Indian tribes, followed by written confirmation. (35) It is at this point that consultation with Indian tribes takes place.

The purpose of such consultation is to positively identify and confirm that what has been discovered is in fact a cultural item subject to disposition under NAGPRA. Once such confirmation is achieved, Indian tribes direct how, within the parameters of NAGPRA, the items are to be (36) Protected or repatriated. Upon certification from an appropriate authority that tribal notification has been accomplished, the federal activity leading to the inadvertent discovery may be resumed, and disposition of cultural items will be carried out pursuant to NAGPRA repatriation procedures. (37) Federal agencies cannot delegate these responsibilities under NAGPRA, except to the Secretary of the Interior upon his/her consent. (38)

NAGPRA expressly provides that, "[t]his Act reflects the unique relationship between the Federal Government and Indian tribes and Native Hawaiian organizations and should not be construed to establish a precedent with respect to any other individual, organization or foreign government." (39) The notion, however, that NAGPRA has established a trust or fiduciary relationship between the government and American Indians has been rejected. The U.S. District Court for the District of Hawaii has held the preceding statutory language to be a "disclaimer intended to ward off tangential repatriation claims from groups other than Native Americans or Native Hawaiians rather than as establishing a fiduciary obligation on the federal government." (40)

a. NAGPRA Jurisdictional Area--Federal or Indian Lands

As indicated above, NAGPRA's reach is limited to cultural items found on federal or Indian land. In Romero v. Becken, (41) for example, human remains were inadvertently found during construction of a golf course in Universal City, Texas. The plaintiff claimed to be a lineal descendant of the Lipan Apache (42) chief Cuelgas de Castro. Ultimately, the Court held that the remains were found on municipal land. (43)

Universal City had acquired the land through gifts of private landowners and, pursuant to the Clean Water Act, was required to conduct an archaeological survey of the project site prior to building the golf course. Consequently, the Army Corps of Engineers (Army Corps) began oversight of the project. (44) The Court held that, "The fact that the U.S. Army Corps of Engineers, a federal agency, was involved in a supervisory role with the Texas Antiquities Commission does not convert the land into 'federal land' within the meaning of the statute." (45)

b. Distinguishing 30-day Cessation Period from Period for Reasonable Protection Efforts

Although NAGPRA requires a 30-day cessation of activity upon the inadvertent discovery of cultural items on federal or Indian lands, efforts at protecting the items may be required to extend beyond the 30-day period. In Yankton Sioux Tribe v. United States Army Corps of Engineers, (46) the plaintiff tribe alleged the Army Corps failed to satisfy its duty to secure and protect inadvertently discovered human remains embedded in frozen lakeshore soil. The Army Corps filed a motion to dismiss, arguing that it had satisfied NAGPRA's notification, tribal certification, and 30-day cessation of activity requirements, and that it took reasonable efforts to protect the accessible remains by removing those that were "loose and scattered" before resuming activity. (47) Further, the Army Corps asserted the Court lacked authority to address long-term protection of remains that might be exposed in the future. (48)

The Court denied the Army Corps' motion to dismiss, finding that neither NAGPRA nor its implementing regulations (49) relieved the Army Corps of its duty to secure and protect inadvertently discovered human remains upon the lapse of the 30-day cessation-of-activity period. (50) The Court determined that NAGPRA regulations do not specify a time period within which a federal agency is relieved of the duty to secure and protect inadvertently discovered human remains. (51) The Yankton Sioux Tribe went on to obtain an injunction against the Army Corps, requiring it to cease all construction in that area, and prohibiting it from denying tribal member access to the area. (52)

2. Inventory Requirement

Basically, NAGPRA tells federal agencies that as of November 16, 1990, if they have collections of certain American Indian items, they must catalog or inventory those items to determine and disclose what is in their possession. (53) A summary of a federal agency's collection is to be provided to lineal descendants, Indian tribes, or Native Hawaiian organizations, as may be applicable. (54)

Although NAGPRA requires efforts to identify the cultural affiliation of cultural items, by express provision of the statute, requests for additional documentation relating to affiliation are not to be construed as authorization for new scientific studies of the items. (55) Clarification of the statutory parameters on permissible scientific analysis and who may be qualified to determine cultural affiliation have been provided by two NAGPRA lawsuits involving human remains recovered from land controlled by the Department of the Navy on the island of Oahu, Hawaii.

a. Na Iwi O Na Kapuna O Makapu v. Dalton

In Na Iwi O Na Kapuna O Makapu v. Dalton, (56) a Native Hawaiian organization objected to a physical anthropologist's examination of a cranium (57) to determine cultural affiliation. In this, the first DoD project to fall under NAGPRA, the Navy awarded the Bishop Museum a contract to inventory human remains disinterred from the Mokapu Peninsula. The general objective was to accurately list human remains and funerary objects and to determine the number of individuals represented. (58)

In conducting its inventory, the Bishop Museum did not perform DNA analysis or generally conduct extensive metric or nonmetric analyses of the remains. Its use of standard physical anthropological methods to determine the various ages and sexes represented and, thereby, the number of individuals present was upheld:

   Examinations done for the purpose of accurately identifying cultural
   affiliation or ethnicity are permissible because they further the
   overall purpose of NAGPRA, proper repatriation of remains and other
   cultural items.[59]

   NAGPRA Section 3003(b)(2) merely prevents federal agencies and
   museums from conducting additional research after completion of the
   initial inventory. Section 3003(b)(2) is wholly inapposite to
   examinations conducted at the inventory compilation stage. The
   section's restrictive language only applies upon request by an
   Indian tribe or Native Hawaiian organization which receives or
   should have received notice [of the completed inventory, ... for]
   additional available documentation to supplement the [inventory]
   information required by subsection (a) of [Section 3003]." 25 U.S.C.
   Section 3003(b)(2) (emphasis provided). Because the Federal
   Defendant did not conduct its examination in response
   to a request for information, Section 3003(b)(2) is of no
   consequence.

   ... Section 3003(b)(2)'s restrictive language [is included] to
   prevent agencies and museums from using a request for additional
   documentation as an excuse to initiate new studies and further delay
   the repatriation process.[60]

b. Monet v. Hawaii

The second lawsuit involved a claim of lineal descendency over the same Mokapu remains. In Monet v. Hawaii, (61) the plaintiff, unlike the Na Iwi O Na Kapuna O Mokapu, proposed to establish his lineal descendency through DNA studies. Monet alleged the Marine Corps lacked authority to determine the appropriate recipient of cultural items due to lack of expertise. The Court dismissed Monet's complaint, finding the Marine Corps to be a federal agency with authority to determine cultural affiliation of cultural items under NAGPRA, rendering its expertise irrelevant. Additionally, because the Marine Corps had not completed its inventory at the time the complaint was filed, the Court found the issue of repatriation not ripe for decision. The Ninth Circuit affirmed this decision. (62)

3. Repatriation Claims

Priority for repatriation claims of cultural items goes to lineal descendants of the individual whose body, funerary and/or sacred objects are being claimed. (63) Notably, lineal descendants, unlike Indian tribes, do not have to be federally recognized by the Bureau of Indian Affairs (BIA). (64) If lineal descendency cannot be ascertained, those claiming a cultural affiliation gain priority. Cultural affiliation involves a traceable group relationship to present-day federally recognized Indian tribes or Native Hawaiian organizations. (65)

More than one tribe may claim affiliation. (66) The NAGPRA Review Committee settles such disputes, as well as issues involving unclaimed property. (67) In the absence of lineal descendants or groups claiming cultural affiliation, repatriation efforts focus on federally recognized Indian tribes.

Repatriation and the Kennewick Man 

The most highly publicized NAGPRA repatriation case to date involves human remains dubbed "the Kennewick Man," determined to be 9,000 years old. The remains were discovered at an Army Corps work site along the Columbia River near Kennewick, Washington, which is federal, aboriginal Indian land. (68)

As described in Bonniehsen v. United States, (69) the Army Corps, after completely covering the discovery site under tons of dirt topped with plants, (70) decided to grant custody of the Kennewick Man to a coalition of Indian tribes based on the age of the remains and their discovery within the United States. (71) Plaintiff scientists and religious groups challenged the Army Corps' decision, attempting to halt transfer of the remains to Indian tribes under NAGPRA by claiming the remains were not descended of an American Indian and seeking an opportunity to study them.

The Army Corps denied plaintiffs' request to study the remains, despite the Army Corps' representation that it buried the site to preserve its archaeological value for further study. (72) Local Indian tribes opposed scientific study of the remains on religious grounds. (73)

Ultimately, the Court agreed with plaintiffs. In the final outcome, the Court set aside the decision awarding the remains to the tribal coalition, enjoined transfer of the remains to the tribes, and required that archaeologists be allowed to study the remains. With respect to NAGPRA, the Court said, "The term 'Native American' requires, at a minimum, a cultural relationship between remains or other cultural items and a present-day tribe, people, or culture indigenous to the United States ... The evidence in the record would not support a finding that Kennewick Man is related to any particular identifiable group or culture, and the group or culture to which he belonged may have died out thousands of years ago." (74) The Court noted that, "Congress did not create a presumption that items of a particular age are 'Native American.'" (75)

III. THE NATIONAL HISTORIC PRESERVATION ACT

   What we are told as children is that people when they walk on the
   land leave their breath wherever they go. So wherever we walk, that
   particular spot on the earth never forgets us, and when we go back
   to these places, we know that the people who have lived there are in
   some way still there, and that we can actually partake of their
   breath and of their spirit.

   Rina Swentzell, Santa Clara Pueblo (76)

A. The National Historic Preservation Act of 1966

The National Historic Preservation Act of 1966 (NHPA) (77) established a program for preserving historic properties throughout the nation. (78) Section 106 of the NHPA requires federal agencies to take into account the effect of their undertakings on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. (79) Additionally, federal agencies must afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on such undertakings (80)

1. The NHPA Section 106 Process

Generally known as the "Section 106 process," the "reasonable opportunity to comment" portion of NHPA Section 106 is accomplished through consultation of the federal agency with other interested parties. (81) Participants in the process include an agency official, the ACHP, (82) and consulting parties. (83) Consulting parties include the State Historic Preservation Officer (SHPO); Indian tribes (84) and Native Hawaiian organizations; (85) representatives of local governments with jurisdiction over the area of effect; applicants for federal assistance, permits, licenses, and other approvals; and any additional consulting parties, including the public. (86)

The agency official has approval authority for the undertaking and can commit the federal agency to take appropriate action for a specific undertaking as a result of Section 106 compliance. (87) A key player in the Section 106 process is the SHPO, representing the interests of a state and its citizens. (88) A SHPO is designated in each state by the Governor or chief executive or by state statute to administer the State Historic Preservation Program. (89) With respect to the Section 106 process, the SHPO advises federal agencies and assists them in carrying out their NHPA Section 106 responsibilities. (90)

In Attakai v. United States, (91) a 1990 NHPA case presaging future action by Congress, the U.S. District Court for the District of Arizona ruled on claims brought by members of the Navajo tribe. Navajo plaintiffs sought to enjoin the Department of the Interior and the Bureau of Indian Affairs (BIA) from constructing fences and livestock watering facilities on land apportioned to a neighboring Hopi tribe by the Navajo-Hopi Land Settlement Act. The plaintiffs' principal claim was that defendants did not engage in consultation with the SHPO in determining the existence of historic properties as required by NHPA regulations. (92) Plaintiffs also contended that the defendants were required to consult with them or the entire Navajo tribe as part of the Section 106 process. (93)

Upholding plaintiffs' claims, (94) the Attakai Court noted that NHPA regulations "clearly require that an Indian tribe participate as a consulting party and that it must concur in any agreement regarding undertakings which affect its lands." (95) However, because the undertakings were to take place on the Hopi Reservation, the Court found that it was the Hopi tribe that must concur in any agreement, as opposed to the Navajo tribe. (96) Nevertheless, the Court determined that NHPA regulations required the Navajo tribe to be afforded an opportunity to participate in the Section 106 consultation as they "clearly contemplate participation by Indian tribes regarding properties beyond their own reservations," regardless of whether they are non-Indian lands. (97)

2. NHPA Section 110

Section 110 of the NHPA requires federal agencies to assume responsibility for preservation of historic properties they own or control and to establish a program ensuring that historic properties under their jurisdiction and control are identified, evaluated and nominated to the National Register. (98) A secondary claim in the above Attakai case involved federal agency responsibilities under NHPA Section 110, wherein plaintiffs contended that defendants failed to establish a program to inventory historical sites on the Hopi Partitioned Lands.

In rejecting this claim, the United States District Court for the District of Arizona stated, "There is nothing in section 110 of the Act which suggests that Congress intended to impose the obligations of that section on federal agencies with regard to Indian lands ... Congress provided for federal responsibilities with regard to protection of historic resources on Indian lands in section 106 on a project specific basis." (99) Therefore, per this District Court, a federal agency does not have NHPA Section 110 responsibilities on Indian lands.

B. The National Historic Preservation Act Amendments of 1992

1. Tribal Historic Preservation Officers and the Section 106 Process

The 1992 NHPA amendments emphasized and strengthened the role of American Indians and Indian tribes. As interpreted by the ACHP, the 1992 revisions:

   ...embody the principle that Indian tribes should have the same
   extent of involvement when actions occur on tribal lands as the SHPO
   does for actions within the State; this includes the ability to
   agree to decisions regarding significance of historic properties,
   effects to them and treatment of those effects, including signing
   Memoranda of Agreement. (100)

Accordingly, the ACHP's revised regulations (101) now contain specific provisions for involving Indian tribes when actions occur on tribal lands, (102) with enhanced consultation with Indian tribes and Native Hawaiian organizations throughout the Section 106 process. Pointedly, an express provision is now made for "Tribal historic preservation officer[s]" (THPOs). (103) The revised NHPA regulations provide that:

   For a tribe that has assumed the responsibilities of the SHPO for
   section 106 on tribal lands ... the tribal historic preservation
   officer (THPO) appointed or designated in accordance with the act is
   the official representative for the purposes of section 106. The
   agency official shall consult with the THPO in lieu of the SHPO
   regarding undertakings occurring on or affecting historic properties
   on tribal lands. (104)

For tribes that have not assumed SHPO functions, federal agencies are required to consult with a representative designated by the Indian tribe, in addition to the SHPO, regarding undertakings occurring on or affecting historic properties on its tribal lands. (105) These Indian tribes have the same rights of consultation and concurrence that THPOs are afforded; yet the SHPO remains a consulting party in the Section 106 process. For federal undertakings occurring on non-tribal lands to which any Indian tribe or Native Hawaiian organization attaches religious or cultural significance to potentially affected properties, federal agencies must still consult with the Indian tribe or Native Hawaiian organization. (106)

The NHPA amendments of 1992 not only adopted new terminology, but also provided greater deference to federal agency and SHPO decisionmaking in the section 106 process. This, in turn, provided greater deference to THPOs. Essentially, the ACHP no longer reviews routine decisions agreed to by a federal agency and a SHPO/THPO. Such decisions include adverse effect findings and most Memoranda of Agreement. Thus, the ACHP has "recogniz[ed] that their capability to do effective preservation planning has grown substantially since 1986." (107)

2. Recognizing Government-to-Government Relationships

The NHPA 1992 amendments incorporated language that succinctly acknowledges the sovereign status of Indian tribes with respect to Section 106 consultation. This point of cultural sensitivity is addressed not once, but twice, in NHPA regulations:

* Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal government and Indian tribes ... and should be conducted in a manner sensitive to the concerns and needs of the Indian tribe or Native Hawaiian organization. (108)

* Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. (109)

IV. THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT AND COMPLEMENTARY RELIGIOUS PROTECTIONS

   We will dance when our laws command us to dance, we will feast when
   our hearts desire to feast ... It is a strict law that bids us to
   dance. It is a strict law that bids us distribute our property among
   our friends and neighbors. It is a good law. And now, if you are
   come to forbid us to dance, begone.

   Anon., Kwakiutl, 1886
   (Protesting anti-potlatch law) (110)

There is not any one American Indian religion, yet most if not all seem to include stewardship of land and natural resources. (111) For American Indians, natural resources can have a religious significance, such as sacred sites or native plants used in ceremonies. (112)

The U.S. Constitution's First Amendment precludes Congress from enacting legislation prohibiting the free exercise of religion. (113) To ensure American Indians received protections equivalent to those of the First Amendment Free Exercise clause, Congress passed AIRFA, which, in its entirety, states:

   On and after August 11, 1978, it shall be the policy of the United
   States to protect and preserve for American Indians their inherent
   right of freedom to believe, express, and exercise the traditional
   religions of the American Indian, Eskimo, Aleut, and Native
   Hawaiians, including but not limited to access to sites, use and
   possession of sacred objects, and the freedom to worship through
   ceremonials and traditional rites. (114)

AIRFA represents the first cultural resource preservation law enacted specifically for American Indians, as opposed to the NHPA or ARPA.

A. AIRFA Protections Do Not Extend Beyond Those of the First Amendment's Free Exercise Clause

The Free Exercise Clause of the First Amendment has traditionally been held to prevent the Government from 1) imposing coercive action or requirements against the practice of one's religion and/or 2) penalizing one's access to public benefits or rights because of religious beliefs or practices. (115) American Indians have sought rights beyond these two protections, using AIRFA as a legal cause of action to preclude government development of natural areas on the grounds that these areas constitute sacred sites.

For example, in addition to the NHPA claim in the aforementioned Attakai case, Navajo plaintiffs also claimed that BIA installation of fencing and construction of livestock watering stations on Hopi Partitioned Land would interfere with the practice of their religion, therefore constituting a violation of AIRFA. (116) Plaintiffs explained that in their traditional Navajo or "Dineh" religion, sacredness was attached to places believed to be portals to spiritual beings to which individuals must have access in order to conduct rituals and to fulfill obligations to care for the land entrusted to them by the creators. (117) The Attakai Court disagreed, however, that the alleged destruction or desecration of these sites through fencing and construction projects prevented the Navajos from fulfilling their caretaking responsibilities or interfered with rituals so as to prevent the practice of their religion. (118)

Looking to AIRFA's legislative history, the Court stated that it "was meant to ensure that American Indians were given the protection guaranteed under the First Amendment to all persons, not to grant them rights in excess of those guarantees." (119) In finding plaintiffs to have no legally cognizable claim under AIRFA, the Attakai Court cited the following quote from U.S. Supreme Court precedent: "Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights." (120) However, the Court went on to opine that "nothing in our opinion should be read to encourage governmental insensitivity to religious needs of any citizen. The Government's right to use its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents." (121)

B. Sacred Sites: Access, Confidentiality, and Notice of Impacting Actions

1. Access to and Confidentiality of Their Locations

AIRFA also affirmed the right of American Indians to have access to their sacred places. In 1996, President Clinton signed Executive Order (E.O.) 13007, Indian Sacred Sites, (122) providing that, in managing federal lands, federal agencies, to the extent practicable, permitted by law and "not clearly inconsistent with essential agency functions," shall (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners, and (2) avoid adversely affecting the physical integrity of such sacred sites.

What is or is not a "sacred site" is determined only by American Indians, not subject to interpretation by federal agency representatives, except in confirming that it is pursuant to an established religion espoused by an appropriately authoritative representative of an Indian religion. (123) This is pursuant to E.O. 13007's definition of a "sacred site" as--

   any specific, discrete, narrowly delineated location on Federal land
   that is identified by an Indian tribe, or Indian individual
   determined to be an appropriately authoritative representative of an
   Indian religion, as sacred by virtue of its established religious
   significance to, or ceremonial use by, an Indian religion; provided
   that the tribe or appropriately authoritative representative of an
   Indian religion has informed the agency of the existence of such a
   site. (124)

Where appropriate, E.O. 13007 requires agencies to maintain the confidentiality of sacred sites. (125)

2. Notice of Action or Policy Impacting Sacred Sites

E.O. 13007 ensures reasonable notice to Indian tribes, where practicable and appropriate, of proposed actions or land management policies that may restrict future access (126) to or ceremonial use of, or adversely affect the physical integrity of, sacred sites. (127) All actions pursuant to E.O. 13007, to include tribal notice, must comply with the Executive Memorandum of April 29, 1994, "Government-to-Government Relations with Native American Tribal Governments." (128)

This Executive Memorandum acknowledges the unique legal relationship between the federal government and Native American tribal governments and seeks to ensure that rights of sovereign tribal governments are fully respected by federal agencies. (129) It provides that executive branch activities shall operate within a government-to-government relationship with federally recognized tribal governments, and consult, "to the greatest extent practicable," prior to taking actions that affect them. (130) All such consultations are required to be "open and candid," allowing tribal governments to evaluate potential impacts. (131)

C. Eagle Feathers and American Indian Religion

Recognizing that eagle feathers hold a sacred place in American Indian culture, President Clinton released an additional Executive Memorandum on April 29, 1994, "Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes." (132) The Memorandum undertakes policy and procedural changes to better accommodate religious practices, requiring federal agencies to "take steps to improve their collection and transfer of eagle carcasses and eagle body parts for Native American religious purposes." (133) This includes, among other actions, simplifying the eagle permit application process, ensuring first priority for distribution of eagles to Native American permit applicants, and "ensuring respect and dignity in the process of distributing eagles for Native American religious purposes to the greatest extent practicable." (134)

V. FEDERAL CONSULTATION AND COORDINATION WITH AMERICAN INDIAN TRIBAL GOVERNMENTS

   When you gave us peace, we called you father, because you promised
   to secure us in possession of our lands. Do this, and so long as the
   lands shall remain, the beloved name will remain in the heart of
   every Seneca.

   Cornplanter, Seneca
   (from an address to George Washington, 1790) (135)

A. Executive Order (E.O.) 13175

In the formulation and implementation of federal policies with tribal implications, E.O. 13175, "Consultation and Coordination with Indian Tribal Governments," requires federal agencies to "respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments."(136) "Early consultation" is mandated in the process of developing, or prior to implementing, proposed regulations with tribal implications. Federal agencies are further tasked with providing to the Office of Management and Budget a "statement of the extent to which the concerns of tribal officials have been met." (137)

B. Practical Considerations

The following are some practical considerations for engaging in consultation or coordination with American Indian tribal representatives, whether pursuant to NAGPRA, issuance of an ARPA permit, NHPA Section 106, or an E.O.:

* It is not the responsibility of federal agencies to settle disputes between different tribes during consultation. In fact, in most cases it is not at all recommended, especially if tribal politics are involved.

* Individual tribal representatives are usually not given unilateral authority to represent their tribe. Rather, they may be required to take information from an initial consultation back to a tribal council or tribal elders for their input. This can be a timely process of building consensus so that decisions can be made.

* Some American Indian tribes or tribal representatives will want to be paid for certain consultations that they deem an intellectual property right issue. (138)

* Federal agencies possess a wealth of documentary materials such as maps and studies that can be very helpful to American Indians and create a better understanding during consultations.

VI. DoD AMERICAN INDIAN AND ALASKA NATIVE POLICY

   Will you ever begin to understand the meaning of the very soil
   beneath your feet? From a grain of sand to a great mountain, all is
   sacred. Yesterday and tomorrow exist eternally upon this continent.
   We natives are guardians of this sacred place.

   Peter Blue Cloud, Mohawk (139)

In 1998, DoD initiated formulation of its American Indian and Alaska Native Policy for interacting and working with federally recognized American Indian and Alaska Native governments. (140) This policy, promulgated in 2001, requires DoD personnel to consider and address concerns of affected tribes prior to reaching decisions that may significantly affect protected tribal resources, (141) tribal rights, (142) or Indian lands. (143)

There are over 570 federally recognized Indian tribes, (144) each with its own distinctive cultural identity. (145) "Just as is true with foreign nations, a 'one-size-fits-all' prescription for consultation with Indian tribes is neither appropriate nor possible ... installations should be mindful of the fact that tribes all have different ways of controlling property, harvesting natural resources, revering the environment, and even conducting consultations." (146)

Consultation with tribes on a government-to-government basis means that the installation commander should make formal contact with the tribe's senior elected official and conduct relations with a "high degree of formality." (147) DoD is expected to build "stable and enduring relationships" and engage in "meaningful communication" addressing tribal concerns at both the tribal leadership-to-installation commander and the tribal staff-to-installation staff levels. (148)

The most important element of consultation is initiating dialogue with potentially affected tribes before making decisions affecting tribal interests. Consultation "is worth very little if decisions have already been made." (149) Consultation is to be conducted in good faith and, according to the policy, with two principles kept in mind. (150) First, "tribes are not just another interested party; where tribal interests may be significantly affected, tribes must be regarded as separate from the general public for purposes of consultation." (151) "Second, in most cases, consultation should include an invitation to potentially affected tribes to provide information to DoD concerning actions that may significantly affect tribal interests; that information should be given special consideration." (152)

Recognition and respect are required for the significance tribes attach to certain natural resources and properties of traditional or customary religious importance. Such respect can be accorded in part by developing tribal-specific protocols to protect tribal information disclosed to or collected by DoD. (153) A caveat is provided, however, that at present, "legal authority to protect tribal information concerning sacred sites is very limited." (154) Therefore, this policy warns military installations to be "careful not to overstate their ability to keep sensitive tribal information confidential." (155)

VII. CONCLUSION

   Our land, our religion, and our life are one. It is upon this land
   that we have hunted deer, elk, antelope, buffalo, rabbit, turkey. It
   is from this land that we obtained the timbers and stone for our
   homes and kivas.

   Hopi creed (156)

"The culture that is indigenous to the 48 contiguous states is the American Indian culture, which was here long before the arrival of modern Europeans and continues today." (157) Since 1831, the federal government's concept of guardianship in relation to that culture has shifted from the federal government as guardian over American Indians, to American Indians as guardians of their cultural heritage.

Accordingly, cultural resource preservation law developments over the past few decades have provided American Indians with previously denied cultural property rights, allowing for control and repatriation of ancestral remains and other cultural items as opposed to their scientific curation. Additionally, American Indians now possess the legal ability to freely practice religion, including access to sacred sites, and to garner respect for requests of confidentiality.

Most importantly, throughout new and revised legislation and recently executed E.O.s, there exists a right of consultation with federal agencies. This consultative role is designed to create an atmosphere of trust and has been strengthened with the addition of THPOs pursuant to the NHPA. Furthermore, consultations pursuant to laws such as NAGPRA and NHPA are designed to create an atmosphere of trust through concepts reiterated in statutory language and case law. These concepts include engaging in good faith, open and meaningful consultation, as well as requiring recognition and respect for the significance that American Indians attach to cultural resources they deem sacred to their traditions.

From science to sensitivity, federal agencies must now engage in a sacred trust with American Indians as sovereign nations regarding their cultural preservation rights.

(1) NATIVE AMERICAN WISDOM 46 (Kristen M. Cleary ed., Barnes & Noble Books 1996).

(2) See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (Indian tribes were first described as distinct political entities, yet dependent nations. Defined as capable of governing themselves, they were made more like a state and less like a foreign nation because their lands were within the United States.).

(3) The term "Native American" came into usage in the 1960s and was originally applied to American Indians and Alaska Natives, later including Native Hawaiians and Pacific Island Territories Natives in some federal programs. DEP'T OF DEFENSE AND UNITED STATES ARMY ENVTL. POLICY INST., AMERICAN INDIAN CULTURAL COMMUNICATIONS STUDY GUIDE (2001). According to Webster's II New Riverside University Dictionary 785 (1984), the terms "Native American" and "Indian American" are synonymous, with usage varying according to tribe and region. However, many members of North American Indian tribes may prefer the latter designation to the former because it is a legal term that includes Native Hawaiians, Aleuts, and other native Pacific Islanders. Furthermore, "Native American" was a term developed by the Bureau of Indian Affairs. See DEP'T OF DEFENSE AND UNITED STATES ARMY ENVTL. POLICY INST. supra this note.

(4) "Cultural patrimony" means having ongoing historical, traditional, or cultural importance central to the Native American group or culture. 25 U.S.C. [section] 3001(3)(D) (1990).

(5) The term "cultural resources" is one that evolves with changes in society and new legislation. It can be real or personal property, as well as natural resources. The National Environmental Policy Act of 1969 provides that environmental resources properly include historic, cultural, and natural resources. 42 U.S.C [section] 4321 (b)(4) (1970). For purposes of this article, reference to cultural resources includes historic and prehistoric resources, as well as traditional or ceremonial property.

(6) NATIVE AMERICAN WISDOM, supra note 1, at 13.

(7) Pub. L. No. 59-209, 34 Stat. 225 (1906) (codified at 16 U.S.C. [subsection] 431-433 (1906)).

(8) SHERRY HUTT ET AL., ARCHEOLOGICAL RESOURCE PROTECTION 21 (The Preservation Press, National Trust for Historic Preservation 1992).

(9) United States v. Diaz, 499 F.2d 113 (9th Cir. 1974).

(10) The Antiquities Act also remains the only legislation with criminal sanctions covering paleontological materials and historic sites less than 50 years old. 16U.S.C. [section] 431.

(11) Pub. L. No. 96-95, 93 Stat. 721 (1979) (codified at 16 U.S.C. [subsection] 470aa-470mm (1979)).

(12) 16 U.S.C. [section] 470bb(1). "Archaeological resources" includes past human life and resources that are over 100 years old and offer retrievable scientific information. The term does not include fossils, surface-collected arrowheads, rocks, coins, bullets or minerals. Id.

(13) Id. [section] 470ee(a). A government contractor acting on behalf of a federal agency would not be a private person requiring a permit. However, the contract should contain ARPA language to ensure that agency responsibilities and requirements under ARPA are maintained. See 32 C.F.R. [section] 229.8(c) (2003).

(14) Under ARPA, "Indian Tribes" include any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act, Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified at 43 U.S.C. [subsection] 1601-1629 (1971)). 16 U.S.C. [section] 470bb(5).

(15) 16 U.S.C. [section] 470cc(c).

(16) Id. [section] 470cc(g).

(17) 43 CFR [section] 7.13(b) (2003). See also Attakai, et. al, v. United States, 746 F. Supp. 1395, 1411 (D. Ariz. 1990) (stating that it is evident the government's ownership and control of archaeological and historical resources is limited.).

(18) A violation of ARPA is a general intent crime. 16 U.S.C. [section] 470ee(d).

(19) Id. [subsection] 470ee, 470ff.

(20) Id. [section] 470hh. Note also that the Archaeological and Historic Preservation Act of 1974, Pub. L. No. 93-291, 88 Stat. 174 (1974) (codified at 16 U.S.C. 469-469c-1 (1974)) requires federal agencies to notify the Secretary of Interior whenever their activities may damage or destroy an archaeological site. It also requires agencies to either take actions necessary to preserve or recover information from such sites, or to assist the Secretary of Interior to report annually to Congress on archaeological protection and data recovery in the federal government. Id. [section] 469(3)(a).

(21) See 32 C.F.R. [section] 229.18(a) (2003).

(22) "To deter looting, the locations and other details of thousands of such sites are closely held secrets. Even the military, however, isn't able to stop casual artifact collectors and commercial salvagers from picking over such sites." Mike Toner, Military Tries to Save History From Looters: Ancient Site, Relics Difficult to Preserve, Atlanta Journal-Constitution, January 19, 2003, at A11, available at 2003 WL 8963666.

(23) Pub. L. No. 101-601,104 Stat. 3048 (1990) (codified at 25 U.S.C. [section] 3001 (1990)).

(24) Congressman Morris Udall (D-Ariz.), Statement to the U.S. House of Representatives on the passage of H.R. 5237, the Native American Graves Protection and Repatriation Act (Oct. 27, 1990). See also H.R. Rep. No. 101-877 (1990), reprinted in 1990 U.S.C.C.A.N. 4367.

(25) 25 U.S.C. [section] 3010.

(26) The Smithsonian Institution was specifically exempted from NAGPRA due to earlier passage of the National Museum of the American Indian Act of 1989, Pub. L. No. 101-185, 103 Stat. 1336 (1989) (codified at 20 U.S.C. [section] 80q (1989)), which was the first federal legislation to address disposition of American Indian cultural property. This law allows the Smithsonian to establish the Museum of the American Indian and to repatriate cultural resources. However, it does not provide the process for repatriation that NAGPRA does.

(27) Under NAGPRA, "Indian tribe" means any tribe, band, nation or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians. 25 U.S.C. [section] 3001(7).

(28) "Native Hawaiian" means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Id. [section] 3001(10). See also id. [section] 3001(11) (defining "Native Hawaiian organization").

(29) Id. [section] 3002.

(30) "Repatriation" means to "expeditiously return." Id. [section] 3005(a)(1).

(31) Id. [subsection] 3003-3005.

(32) Id. [section] 3001(3)(A)-(D).

(33) Id. [section] 3002(c)(2). Note also that an ARPA permit would be required for excavations by private persons on federal land. Id. [section] 3002(c)(1).

(34) Id. [section] 3002(d)(1).

(35) Id.

(36) The following are authorized certifying authorities: the Secretary of a U.S. Department, the head of any U.S. agency or instrumentality, and the relevant Indian tribe or native Hawaiian organization. Id.

(37) Id. [section] 3002(d)(1)-(2).

(38) Id. [section] 3002(d)(3).

(39) Id. [section] 3010.

(40) Na Iwi O Na Kapuna O Makapu v. Dalton, 894 F. Supp. 1397, 1410 (D. Haw. 1995).

(41) 256 F.3d 349 (5th Cir. 2001).

(42) The Lipan Apache Band of Texas is not a federally recognized tribe. See infra note 65.

(43) 256 F.3d at 354.

(44) Id. at 352.

(45) Id. at 354.

(46) 194 F. Supp. 2d 977 (D. S.D. 2002).

(47) Id. at 981-982.

(48) Id. at 982.

(49) 43 C.F.R. [section] 10 (1977).

(50) 194 F. Supp. 2d at 986.

(51) Id.

(52) Yankton Sioux Tribe v. United States Army Corps of Engineers, 209 F. Supp. 2d 1008 (D. S.D. 2002).

(53) 25 U.S.C. [subsection] 3003-3004 (1990).

(54) Id.

(55) Id. [section] 3003(b)(2).

(56) 894 F. Supp. 1397 (D. Haw. 1995).

(57) Sherry Hutt & C. Timothy McKeown, Control of Cultural Property as Human Rights Law, 31 ARIZ. ST. L.J. 363,382 (1999).

(58) 894 F. Supp. at 1402.

(59) Id. at 1415.

(60) Id. at 1417.

(61) CV-96-00006-DAE (D. Haw. 1996) (unpublished opinion), affirmed by Ninth Circuit. See Hutt & McKeown, supra note 57, at 382-83.

(62) Monet v. United States, 114 F.3d 1195 (9th Cir. 1997).

(63) 25 U.S.C. [section] 3002(1) (1990).

(64) In Idrogo & Americans for Repatriation of Geronimo v. Dept. of the Army & President Clinton, 18 F. Supp. 2d 25 (D.C. Cir. 1998), an individual who "believed" he was a direct descendant of Geronimo claimed entitlement to return of Geronimo's remains pursuant to NAGPRA. The Court granted the Army's motion to dismiss for lack of standing, finding that Idrogo had not claimed to be a "member of any recognized (or unrecognized, for that matter) Native American tribe." 18 F. Supp. 2d at 27. NAGPRA does not provide individuals with a basis for monetary relief. Romero v. Becken, 256 F.3d 349, 354-55 (5th Cir. 2001)(denying individual's claim for monetary damages-"NAGPRA exists to give protection to Native American artifacts, cultural items, and other such objects 'having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American.' 25 U.S.C. [section] 3001(3)(d).").

(65) 25 U.S.C. [section] 3001(2). Unrecognized tribes with NAGPRA claims sometimes avoid the "standing" issue by affiliating with a recognized tribe. This acknowledges the government-to-government relationship of Indian tribes with the United States. The BIA publishes a list of federally recognized tribes every two years in the Federal Register. See Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 67 Fed. Reg. 134 (July 12, 2002).

(66) 25 U.S.C. [section] 3002(a)(2)(C).

(67) Id. [subsection] 3002(b), 3006(c)(4). NAGPRA provided for the establishment of a committee to monitor and review implementation of the inventory and identification process and repatriation activities. See Id. [section] 3006(a)-(i).

(68) The discovery also attracted attention because some physical features, such as the shape of the face and skull, appeared to differ from modern American Indians. Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1121 (D. Or. 2002).

(69) 217 F. Supp. 2d 1116 (D. Or. 2002) (appeal after remand, 969 F. Supp. 628 (D. Or. 1997)).

(70) The Army Corps of Engineers covered the site where the Kennewick man was discovered with approximately two million pounds of rubble and dirt, topped with 3,700 tree plantings, an act which undoubtedly hindered efforts to verify the age of the remains, and effectively obliterated efforts to determine whether other artifacts were present at the site that might have indicated a relationship to American Indians. Id. at 1126.

(71) Id. at 1130. The tribal claimants included the Confederated Tribes & Band of the Yakama Indian Nation, the Nez Perce Tribe of Idaho, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Colville Reservation, and the Wanapam Band, which is not a federally recognized tribe. Id. at 1122

(72) Id. at 1126. The administrative "record strongly suggests that the Corps' primary objective in covering the site was to prevent additional remains or artifacts from being discovered, not to 'preserve' the site's archaeological value or to remedy a severe erosion control problem as Defendants have represented to this court." Id. at 1125.

(73) Id. at 1121.

(74) Id. at 1138. As the Court noted, "Interpreting the statute as requiring a 'present-day relationship' is consistent with the goals of NAGPRA: Allowing tribes and individuals to protect and claim remains, graves, and cultural objects to which they have some relationship, but not allowing them to take custody of remains and cultural objects of persons and people to whom they are wholly unrelated." Id. at 1136.

(75) Id. at 1138.

(76) NATIVE AMERICAN WISDOM, supra note 1, at 52.

(77) Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified as amended at 16 U.S.C. [section] 470).

(78) The Act's purpose provides that "the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans." 16 U.S.C. [section] 470(b)(4). The National Environmental Policy Act, passed several years later in 1969, stated among its other goals that the federal government shall "preserve important historic, cultural and natural aspects of our national heritage." Pub. L, No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. [section] 4331(b)(4)).

(79) 16 U.S.C. [section] 470f. The National Register of Historic Places is a basic inventory of historic resources in the United States administered by the National Park Service, and maintained by the "Keeper," who has authority to list and determine eligibility of historic properties. The National Register lists: (a) objects that are associated with events that have made a significant contribution to the broad patterns of our history; (b) objects that are associated with the lives of persons significant in our past; (c) objects that embody the distinctive characteristics of a type, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (d) objects that have yielded, or may be likely to yield, information important in prehistory or history. 36 C.F.R. [section] 60.4 (2003).

(80) 16 U.S.C. [section] 470f. The Advisory Council on Historic Preservation is an independent federal agency whose members are appointed by the President. ACHP members include the Architect of the Capitol; Secretaries of Interior, Agriculture, Defense and Transportation; Administrators of the EPA and GSA; Chairman of the National Trust for Historic Preservation; President of the National Conference of SHPOs; a governor, a mayor, a Native Hawaiian, and eight additional non-federal individuals. Id. [section] 470i(a).

(81) 36 C.F.R. [section] 800.1(a) (2003).

(82) 16 U.S.C. [section] 470f.

(83) 36 C.F.R. [section] 800.2(a)-(c).

(84) Under the NHPA, Indian Tribes include an Indian tribe, band, nation, or other organized group or community, including a native village, regional corporation, or village corporation, as those terms are defined in the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Id. [section] 800.16(m).

(85) Under the NHPA, Native Hawaiian Organizations are any organization that serves and represents the interests of Native Hawaiians; has as a primary and stated purpose the provision of services to Native Hawaiians; and has demonstrated expertise in aspects of historic preservation that are significant to Native Hawaiians. Id. [section] 800.2(s)(1).

(86) "Additional consulting parties" are certain individuals with a demonstrated interest in the undertaking due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effect on historic properties. See Id. [section] 800.2(c)(5) and (d).

(87) Id. [section] 800.2(a).

(88) Id. [section] 800.2(c)(1)(i).

(89) Id. [section] 60.3(n) (2003).

(90) Id. [section] 800.2(c)(1)(i).

(91) 746 F. Supp. 1395 (D. Ariz. 1990).

(92) Attakai, 746 F. Supp. at 1406.

(93) Id. at 1408.

(94) Id. at 1407-1408. See also Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995) (National Forest Service violated NHPA regulations because its evaluation of a canyon, deemed a traditional cultural property by the Pueblo, for inclusion in the National Register was not reasonable or in good faith. Mailing of form letters soliciting information was not informed consultation with SHPO; no documentation of decision provided to SHPO.).

(95) Attakai, 746 F. Supp. at 1408.

(96) Id.

(97) Id.

(98) 16 U.S.C. [section] 470h-2(a)(1)-(2)(1966).

(99) Attakai, 746 F. Supp. at 1409.

(100) Section 106 Regulations Users Guide, Section 106 Major Changes, available at http://www.achp.gov/106changes.html.

(101) 36 C.F.R. [section] 800 (2003).

(102) Tribal lands include all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities. Id. [section] 800.16(x).

(103) The THPO is the tribal official appointed by the tribe's chief governing authority or designated by a tribal ordinance or preservation program who has assumed the responsibilities of the SHPO for purposes of section 106 compliance on tribal lands. Id. [section] 800.16(w).

(104) Id. [section] 800.2(c)(2)(i)(A).

(105) Id. [section] 800.2(c)(2)(i)(B).

(106) Id. [section] 800.2(c)(2)(ii)(D).

(107) ACHP Section 106 Regulations Users Guide, supra note 100.

(108) 36 C.F.R. [section] 800.2(c)(2)(ii)(C).

(109) Id. [section] 800.2(c)(2)(ii)(B).

(110) NATIVE AMERICAN WISDOM, supra note 1, at 61.

(111) Indeed, some American Indian tribes considered the Endangered Species Act to be "Indian law." The Hopi consider all religious matters to be intellectual property. The Pueblos incorporate agriculture, such as corn, into ceremonies.

(112) See Pueblo of Sandia v. United States, 50 F.3d 856, 857 (10th Cir. 1995)(Sandia Pueblo tribal members visit Las Huertas Canyon, which they deem a traditional cultural property, to gather evergreen boughs for use in significant private and public cultural ceremonies. They also harvest herbs and plants along the Las Huertas Creek, which are important for traditional healing practices. The canyon contains many shrines and ceremonial paths of religious and cultural significance to the Pueblo.).

(113) "Congress shall make no law ... prohibiting the free exercise [of religion]." U. S. CONST., amend. I.

(114) 42 U.S.C. [section] 1996 (1978).

(115) Crow v. Gullet, 541 F. Supp. 785, 790 (D. S.D. 1982), aff'd, 706 F.2d 856 (8th Cir. 1983), cert. denied, 464 U.S. 977 (1983).

(116) Attakai, 746 F. Supp. at 1402.

(117) Id. at 1403.

(118) Cf. Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983) (U.S. Forest Service did not violate AIRFA with plans to expand a government-owned ski lodge atop San Francisco peaks in Coconino National Forest. Navajo and Hopi may have been hampered in the exercise of their beliefs, but they were not denied access to the sacred peaks.).

(119) Attakai, 746 F. Supp. at 1405 (citing Crow v. Gullet, 541 F. Supp. at 793-94).

(120) Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 455 (1988), quoted in Attakai, 746 F. Supp. at 1405.

(121) Lyng, 485 U.S. at 453-54.

(122) Exec. Order No. 13007, 61 Fed. Reg. 26,771 (May 24, 1996).

(123) Id. [section] 1(b)(iii).

(124) Id.

(125) Id. [section] 1.

(126) The E.O. provides for access to sites by "Indian religious practitioners," which is not defined in the E.O. Id. Hence, access pursuant to E.O. 13007 is not necessarily limited to federally recognized tribes or their members.

(127) Id. [section] 2(a).

(128) Id.; Exec. Memorandum, "Government-Government Relations with Native American Tribal Governments," 59 Fed. Reg. 22951 (April 29, 1994).

(129) Exec. Memorandum, supra note 128.

(130) Id. [section] (a)-(b).

(131) Id. [section] (b).

(132) Exec. Memorandum, "Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes," 59 Fed. Reg. 22953 (April 29, 1994).

(133) Id.

(134) Id.

(135) NATIVE AMERICAN WISDOM, supra note 1, at 44.

(136) Exec. Order No. 13175, [section] 3(a), 65 Fed. Reg. 67249 (November 6, 2000).

(137) Id. [section] 5(a)-(c).

(138) DoD may pay tribes for professional services rendered under contract, purchase order, or cooperative agreement, but does not pay "consultation fees." Military departments may reimburse for "invited travel" for the purpose of conferring upon official government business. 5 U.S.C. [section] 5703 (1966).

(139) NATIVE AMERICAN WISDOM, supra note 1, a t 10.

(140) This policy governs interaction with federally recognized tribes only; it does not govern interaction with unrecognized tribes, state-recognized tribes, Alaska Native village or regional corporations, or Native Hawaiians. See DoD American Indian and Alaska Native Policy, [section] (a) (1998). This policy took 20 months to create and involved a Tribal Steering Group, three mailings to all federally recognized tribes, and 15 visits to tribal gatherings. See DoD American Indian and Alaska Native Policy, (May 23, 2001), available at http://www.usace.army.mil/inet/ functions/cw/cecwo/re/DoDPolicy.pdf.

(141) Protected tribal resources are "those natural resources and properties of traditional or customary religious or cultural importance, either on or off Indian lands, retained by, or reserved for, Indian tribes through treaties, statutes, judicial decisions, or executive orders, including tribal trust resources." DoD American Indian and Alaska Native Policy, preamble n. 3, (May 23, 2001), available at http://www.usace.army.mil/inet/functions/cw/cecwo/re/DoDPolicy.pdf.

(142) Tribal rights are defined in the policy as "those rights legally accruing to a tribe or tribes by virtue of inherent sovereign authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or agreement, and that give rise to legally enforceable remedies." Id.

(143) Indian lands are defined in the DoD policy as any lands title to which is either: 1) held in trust by the United States for benefit of any Indian tribe or individual; or 2) held by any Indian tribe or individual subject to restrictions by the United States against alienation. DoD American Indian and Alaska Native Policy, supra note 141.

(144) This number is subject to fluctuation. Refer to the most recent BIA list of federally recognized tribes. See supra note 65.

(145) DoD American Indian and Alaska Native Policy, supra note 141, [section] (n).

(146) Id.

(147) Id. [section] (h).

(148) Id. [section] (g).

(149) Id. [section] (k).

(150) Id. [subsections] (l)-(m).

(151) Id. [section] (m).

(152) Id.

(153) Id. [section] (r).

(154) Section 9 of ARPA and Section 304 of NHPA may provide some protection from a request for such information, but may not be enough to guarantee confidentiality in the face of a Freedom of Information Act (FOIA), 5 U.S.C. [section] 552, request for disclosure--especially under NHPA, which does not cross-reference FOIA.

(155) DoD American Indian and Alaska Native Policy, supra note 141, [section] (r).

(156) NATIVE AMERICAN WISDOM, supra note 1, at 13.

(157) Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1138 (D. Or. 2002).

MS. LAURYNE WRIGHT *

* Ms. Lauryne Wright (B.J., University of Texas at Austin; J.D., University of Baltimore School of Law) is assigned to the Air Force Legal Services Agency, Environmental Law Division, Compliance and International Law Branch in Rosslyn, Virginia. She is a member of the California Bar.