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Mr. Scoll is an attorney at Lindquist & Vennum, PLLP, in Minneapolis, Minnesota, and a member of the editorial board of Natural Resources & Environment. Mr. Griswold is a partner of Procopio Cory Hargreaves and Savitch, LLP, in San Diego, California. He has been counsel to the Pala Band of Mission Indians in its opposition to the Gregory Canyon landfill.
Our resource protection system is currently ill-suited to the protection of Native American sacred sites. In general, resource protection in environmental law is grounded on the optimistic premise that a resource can be identified, quantified, and disclosed to a decision maker, who will then make an informed and appropriate decision. As applied to sacred sites, the premise is in direct conflict with Native American spiritual values, which emphasize individual and cultural privacy in their experience with governmental decision makers. In practice, disclosed sacred sites are more likely impacted by a lack of effective enforcement mechanisms or by disinterested decision makers.
Identification of culturally important sites is the first challenge. Historically, the Native American tendency to keep private the unique knowledge, cultural beliefs, and practices of a particular tribe or nation has been reinforced by efforts of the dominant society that restricted traditional religious practices, thus driving them underground. Once disclosed, the sites are subject to exploitation, vandalism, or abuse. Tribes and individuals are understandably wary of making their religious practices and sacred sites public.
The potential—but uncertain—protections afforded by disclosure may be outweighed, in the view of the affected tribe or individual, by the risks such disclosure may entail. State and federal protections for a sacred site require objective identification, quantification, and disclosure of a site’s purpose and location. (See Section 1(b)(iii), Exec. Order No. 13,007, 61 Fed. Reg. 26,771 (May 29, 1996)). Similarly, the National Historic Preservation Act (NHPA), 6 U.S.C. §§ 470 et seq., requires, as a condition of listing as a National Historic Site, significant explanation and documentation as part of an administrative record open to public review and comment.
A second challenge may be proving a site’s authenticity and cultural or religious significance. This may entail intrusion into matters traditionally communicated orally within the tribe. Such information, when divulged, may be met with allegations that it has been fabricated solely to oppose or stop a project, particularly where the site itself contains no observable evidence of human activity.
Regulatory definitions may be inadequate to describe a site or resource. Executive Order 13,007, for example, narrowly requires that a “sacred site” be a “specific, discrete, narrowly delineated location on Federal land.” However, the significance of a particular place may be rooted in its special powers or attributes or in a body of traditional ecological knowledge associated with it, which does not easily fit into a legalistic category.
More broadly, the National Park Service, which determines the eligibility of places of religious or cultural importance for listing on the National Register, defines, in National Register Bulletin 38, a category of property, known as a “traditional cultural property” (TCP). Under Bulletin 38, a TCP is eligible for inclusion in the National Historic Site Registry because of its association with cultural practices or beliefs of a living community that (1) are rooted in that community’s history and (2) are important in maintaining the continuing cultural identity of the community. A TCP can include an undisturbed place in the natural environment associated with the cultural practices of a community (e.g., a mountain). These practices may be established through consultation with persons with knowledge of oral traditions and may themselves be intangible; however, the site itself must still be identifiable. While TCP recognition is helpful, authenticating a site remains a challenge.
Finding a sympathetic governmental decision maker is another challenge. Most laws applicable to sacred sites apply only to federal lands or, in the case of private or nonfederal lands, only to a decision (typically, a permit decision) made by a federal agency (e.g., NHPA, 16 U.S.C. §§ 470–470x-6, the Archaeological Resources Protection Act (ARPA) 16 U.S.C. §§ 470aa–470mm, and the Native American Graves Protection and Repatriation Act (NAGPRA) 25 U.S.C. §§ 3001–3013). Even if recognized under the NHPA listing process, protection for a site is limited only to compulsory consultation with the affected tribes. The NHPA process has no impact on actions by state or local governments.
Sacred site protection may be addressed under state or local regulation under the rubric of “resource protection.” While seemingly helpful, at first blush, classifying a sacred site as a “resource” is inappropriate: Resources are “managed” and management involves balancing or tradeoffs considering protection of “enough of the resource” or mitigation for its loss. However, a sacred site is both irreplaceable and unmitigatable. In reality, sacred site preservation at the state or local level, typically entrusted to land-use decision-making bodies, may fall to bureaucrats disinterested in—or even hostile to—such preservation.
The difficulty of protecting a Native American sacred site is well illustrated by the experience of one of the authors (Griswold) with efforts to prevent desecration of Gregory Mountain, or Chok’la, a sacred mountain in a sparsely populated and environmentally sensitive area in northern San Diego County, California. The Luiseño people of the area, including the Pala Band of Mission Indians and other tribes, have fought the proposed siting of a landfill there since the 1980s. Chok’la and nearby Medicine Rock are culturally significant sites; in this instance, their disclosure was not a concern. Initially, significant opposition from tribes, environmental groups, religious groups, and cultural resource specialists convinced the county to reject the site largely due to the impact of the landfill on cultural resources. (Watershed impacts and endangered species were also concerns.)
Investors in the project countered by using California’s initiative process to place the siting of the landfill on a county-wide ballot. In 1994, with landfill proponents pressing the siting as a “recycling initiative,” financially outgunned opponents were unable to defeat a proposition allowing the landfill to be constructed in Gregory Canyon, per the prior paragraph), provided it could get all required permits. As a result, any protection of the mountain as a sacred site would have to come through the state, local, and federal environmental permitting process.
The first steps in project processing occurred in the environmental review under the California equivalent of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). The County Department of Environmental Health (DEH) became the CEQA lead agency for the project. Opposition focused on classic environmental issues: the proximity of the landfill to the San Luis Rey River, as well as endangered species, water supply, air quality, and other “physical” issues raised by the construction and operation of the landfill. The tribes stressed the impact of the proposed landfill to Chok’la, Medicine Rock, and the religious rights of the Luiseño people.
The project environmental impact report (EIR) remarkably concluded that excavating one side of the mountain and burying 30 million tons of garbage in the canyon would not cause any “objective” significant impact on Gregory Mountain or nearby Medicine Rock. The EIR did acknowledge, however, that the proposed project would cause “significant and unmitigable” impacts to these sacred sites based on the “subjective” beliefs of the tribes.
Under CEQA, if an impact is identified as “significant,” the agency approving the project must identify ways to mitigate the impact or find that mitigation is infeasible. If there is no feasible mitigation, the agency may approve the project, but must make a finding that “overriding considerations” justify proceeding without mitigation. Here, the DEH issued a “statement of overriding considerations” stating, essentially, that the importance of siting the landfill at Gregory Mountain outweighed any biological or cultural resource impacts. In short, the land use decision maker provided no protection of the sacred site whatsoever.
Since the ballot referendum, the project proponent has continued to assert that the tribes’ claim of Chok’la as a sacred site is simply a ploy to stop the project. In 2004, Chok’la and Medicine Rock were proposed for listing as TCPs on the registry of National Historic Sites. Because of potential wetland impacts from the project, the landfill developers were required to secure a Section 404 permit under the federal Clean Water Act. The Army Corps of Engineers’ 404 permit decision then triggered NHPA consultation requirements.
The NHPA listing process has dragged on for years, largely due to opposition from the landfill developers. After unsuccessfully claiming that the sacred nature of the site was illusory, the developers then claimed that, if listed, only Medicine Rock at the base of the mountain and the very top of the mountain should be considered “sacred,” claiming that there is no “objective evidence” of religious ceremonies on the mountain. The tribes have countered that under Bulletin 38 (and as noted above), a TCP need not be narrowly defined and can include an undisturbed place in the natural environment that is associated with intangible cultural practices of a community. Nevertheless, more than six years after the mountain was nominated for the National Register for Historic Places, the site’s status remains in doubt.
The landfill developer has continued to mount a public relations campaign, playing to prejudices against TCP claims and displaying its ignorance of the site’s religious significance. Typical are the remarks of a developer spokeswoman, Nancy Chase, in an interview on station KPBS, on June 11, 2011, as reported in the station’s transcript. “They base their claim of sacredness on a tribal God, which is a bird called Takwic. You’d have to wipe out development throughout Southern California because Takwic flew everywhere.” Chase also said tribe members have never had access to the site or used it for tribal gatherings, “or any of the various things they’re claiming.”
Frustrated by the omission of sacred site status from local land use decision making and by the ineffectiveness of the environmental regulatory process, the Pala Band and its allies worked with local legislators to secure near unanimous passage in both state legislative houses of Senate Bill 833, providing permanent protection for Chok’la. On October 9, 2011, Governor Jerry Brown vetoed the bill, claiming that the fate of the site is a local concern, despite the disregard local authorities have already shown for it.
Efforts to protect Gregory Mountain highlight the need for change in the way land-use and permitting decisions impacting Native American cultural and spiritual resources are made. Ways must be found to foster relationships of mutual trust and respect between tribes and decision makers such that claims of the presence of a sacred site receive respectful treatment. A tribe’s past and current reluctance to disclose traditional religious activities should be understood as an artifact of its culture and honored, not exploited to deny recognition of the site.
Ultimately, a sacred site should not be regarded in the same way as a resource whose loss is mitigable—such sites are by their nature irreplaceable. Laws and regulations affording cultural protection need to be amended to embrace inherently subjective Native American viewpoints. For protection to be effective, such viewpoints cannot be filtered through the prism of non-Native spiritual or religious experience—they must be taken for just what they are. In the end, decision makers at all levels must acknowledge the value of these culturally traditional sites and the importance of preserving them.