Accommodating Native American Cultural Activities on Federal Public Lands
77 Pages Posted: 7 Dec 2004
This Article seeks to analyze the potential success of claims available to Native American tribes to protect their cultural resources against potentially competing claims under three circumstances: (1) where agency actions to protect Native American interests are challenged; (2) where agency actions are inimical to Native American interests; and (3) where agencies fail to act to protect Native American interests. Scholars of Native American cultural uses of public lands have lumped the two legally distinct categories of agency action and agency inaction into a single mode of analysis. This conflation creates difficulties for Native American activists seeking to protect their cultural resources and practices in different situations, as some strategies are more amenable to encouraging agency action designed to protect Native American resources, while other strategies are more appropriately used as defenses against agency actions detrimental to Native American interests. The current conflation implies that successful Native American advocacy can be achieved through a singular approach despite this distinction. The danger in such a conflation, therefore, is the pursuit of an inappropriate strategy to protect Native American interests. In fact, First Amendment jurisprudence dominates the discourse surrounding Native American resource protection, yet First Amendment jurisprudence is not particularly valuable to compel or encourage agency action to protect Native American resources and cultural interests.
Part I analyzes both the value and viability of the traditional claims raised by Native American activists seeking protection of traditional cultural uses: First Amendment Claims. Recent changes in Free Exercise and Establishment Clause jurisprudence and interpretation have arisen, necessitating a change in the calculus under which Native American activists should approach seeking protection of cultural uses. This Part identifies both strengths and weaknesses of the traditional approach, but ultimately counsels that such an approach may be inimical to the totality of Native American interests (including amount of protection available to Native American activities and cultural appropriation concerns, among others) in particular circumstances.
Part II of this Article discusses a recent court case which serves as an example from which to understand the dynamic of competition that occurs on federal public lands where Native American cultural uses are sought. The analysis of the case also highlights some of the dangers present for Native American activists relying on more traditional remedies and claims.
Part III analyzes other claims available to Native American activists seeking to protect their cultural interests in federal public lands, whether they derive from treaty, statute, regulation, policy, or judicial interpretation of agency actions. This Article finds that while some of these approaches are more successful than others, not all approaches are appropriate for the three categories of actions or inactions noted above which may prompt a claim for cultural protection. This Part highlights the patchwork of confusing, overlapping federal regulation regarding Native American cultural use of federal public lands.
Part III illustrates that little support is found in traditional Native American claims for compelling agency action to protect Native American cultural resources from degradation. Claims based upon agency- and park-specific regulations, however, may be more successful in encouraging agency action. Although more likely to impose obligations to act than other traditional claims, those obligations are generally treated under the umbrella of such wide agency discretion that the agency is nearly impervious to attack.
Part IV therefore attempts to identify some property claims which may address the failings of the existing structure of traditional claims and provide support for actions designed to compel agency action, as well as protect Native American cultural interests under certain circumstances.
Part V recognizes that while these property claims are useful tools for Native American activists, they are not necessarily panacea, as they have drawbacks of their own. This Part seeks to identify some of the major drawbacks to employing property-based claims to protect cultural interests in land. The Article concludes that property claims are an important avenue for Native American activists to explore and that federal land managers act well within their authority when they base protections of Native American cultural activities upon the cultural value of the property as opposed to the religious value of the property.
Keywords: Native American, Indian, culture, First Amendment, property rights, sacred sites
JEL Classification: I31, K11, K19, K10, K23, Q15, Q20, Q30, Q40
Suggested Citation: Suggested Citation