An Examination of Increasing Protection for Sacred Sites and the Trust Responsibilities of the Federal Government

Abstract:     
Native American concerns about development activities adversely affecting sacred sites have emerged in recent years as major impediments to mineral and energy development projects. This article examines legislation, regulations, and other legal efforts designed to add protection to these sacred sites. This article analyzes current legal authorities pertinent to the protection of Native American sacred sites, and addresses issues raised by proposed legislative expansions of these protections. Constitutional issues, including the restriction on the establishment of any religion by the government, are also examined. With various regulatory and legislative initiatives pushing for an increased protection of sacred sites, there will undoubtedly be increased costs for mineral development.

The examples discussed in this article focus on protections afforded Native American values outside of Indian sovereign lands. These off-reservation protections have the potential to greatly expand the influence of Native Americans in federal decision making and expand their scope of control. They create increased costs, delay projects, almost surely create an environment for conditions to be placed on many activities that are approved, and increases the risk that some projects will be denied.

Congress should continue to recognize the benefits of mineral development activities and avoid creating constitutionally suspect preferences for Native American sacred sites. Agencies must similarly be aware of the potential consequences of allowing purported sacred sites to impede projects which are otherwise valuable to the nation's economy and security. Officials must strike an appropriate balance and consider other values, and indeed property rights, that could be infringed through preferences for sacred site protection.

Number of Pages in PDF File: 30

Keywords: NHPA, ACHP, Historic Preservation, Natural Resources, Mining, Timber, Administrative Law, Sacred Sites, Native Americans, Artifacts, American Indians

JEL Classification: H00, H10, H11, H19, K11, K20, K32, N50, O10, O20

Accepted Paper Series