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Notes From All Over

Nick Swan, supervisory forestry technician, Yakama Reservation. Like many Indian forestry professionals, Nick started in forestry in 1974 fighting fires. He later spent three years on inventory and cruising in the woods, scaled logs at White Swan,b ecame a scaler supervisor, then shifted to the main scaling office. Over his 31 years in the business, he has taken advantage of intensive in-house tribal training programs as well as participated in many regional forestry professional meetings and conferences.

Many traditional religious and ceremonial practices of Native Americans are inseparably bound to land and natural formations. These sites may be places where spirits live or that otherwise serve as bridges between the temporal world and the sacred. Areas of sacred geography may be related to tribal creation stories or historical events of religious significance. They may also be areas where sacred plants or other natural materials are available, sites with special geographic features, burial sites or places where structures, carvings or paintings made by tribal ancestors are located. It is often difficult for non-Indians unfamiliar with traditional tribal culture to understand how deeply felt and integral these beliefs are for those who practice and believe in these traditional ways. The continuation of traditional native religions and tribal cultures over time is dependent upon the performance of ceremonies and rituals, many of which have been performed since time immemorial at specific sites and which must be performed at those sites in order to be effective.

A large number of those sites sacred to traditional Indian religions are located in federally-owned National Forests. Goals of resource development can sometimes clash with preserving the integrity and sanctity of sacred places.

This article discusses the differing world views that can give rise to such conflicts, analyzes some of the legal framework surrounding land management decisions in National Forests, and advances some ideas about how these conflicts can be avoided.

A recent decision by the Forest Service is one of the best examples of this conflict between world views. On March 11, 2005, the Coconino National Forest approved the expansion of the Snowbowl ski area on the San Francisco Peaks in northern Arizona. It did so in order to provide for “a consistent/reliable operating season” for the ski area. A key component of the expansion is the use of recycled water for snowmaking. This proposed expansion was heatedly opposed by numerous tribes in the area, including the Navajo, Hopi, Havasupai, Hualapai and Acoma Pueblo. In the words of Leigh Kuwanwisiwma, Director of the Hopi Cultural Preservation Office, “The use of wastewater to make artificial snow goes completely against our belief that Nuvatukya’omi (the San Francisco Peaks), the home of our Katsina spirits, is the natural embodiment that brings rain, snow and moisture to bless all of life. The creation of artificial snow with wastewater will forever diminish the sanctity and spiritual value of Nuvatukya’omi as a sacred place. To allow this type of development on the Hopis’ place of worship and the place which our sustenance in the Hopi Villages comes from will most certainly contribute to the demise of the Hopi way of life and the Hopi religion. A significant part of the peace that I once felt in my life has been robbed and taken away from me by the Forest Service and its decision to harm Nuvatukya’omi and to treat the Hopi people and their religion with callous disregard.”

The Snowbowl expansion is a textbook example of a case where the goals and needs of those who want to “develop” the land were more readily incorporated into government land management decision making than were the religious beliefs of Native Americans affected by that development.

Unfortunately, from the tribal perspective, existing law explicitly recognizes the value of accommodating the religious needs of Native Americans to only a limited extent. The National Historic Preservation Act (NHPA) provides that “a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance” to a historic property when a federal or federally assisted undertaking may affect that property. The American Indian Religious Freedom Act and Executive Order 13,007 declare that it is federal policy to protect the integrity of and access to sacred sites, but neither is judicially enforceable. These laws are helpful tools, but none of them provide the kind of enforceable, substantive legal protection that would ensure that these sites are protected. Indeed, strengthening of the laws protecting sacred places has been a goal of the Indian community for many years.

The Klickitat River Meadows/Caldwell Prairie bank restoration project. The project used 275 large trees contributed by the Yakama Tribes, funds from Washington State and Bonneville Power, specially-prepared heavy equipment, plus a lot of steel cable. The objective is to repair stream banks affected by cattle grazing, disperse energy during floods, and ultimately to encourage the river to meander more and provide better spawning grounds.

Notwithstanding their limitations, it is important to recognize that these federal laws have allowed for strengthened protection of sacred sites through the negotiation of some agreements to protect sacred places located on non-Indian lands. For example, in 1996, a Historic Preservation Plan (HPP) was developed based upon these legal authorities for the Bighorn Medicine Wheel and Medicine Mountain in Wyoming. Among other things, the HPP provides for consultation with tribal representatives whenever a government undertaking impacts an 18,000 acre area surrounding Medicine Mountain and Medicine Wheel, places restrictions upon vehicular access to the site and limitations on timber and mineral production in the area, recognizes the needs of practitioners for time-limited exclusive access to the site and seeks to retain the quality of the viewshed from the Medicine Wheel. The HPP also permits the continuation of a number of multiple uses in the area that are compatible with protecting the integrity of the site, including grazing, hunting, hiking and tourist visitation to the Wheel.

Protection of Native traditional cultural and sacred places, however, continues to be a case-by-case struggle to convince land managers that it is necessary and possible to protect these places. In the case of the San Francisco Peaks, the Forest Supervisor was obviously not convinced. Ultimately, the dispute over the Snowbowl development will be settled by the Courts. How can this be avoided? There is no answer that will work in every instance. There are administrative actions, however, that can be taken to lessen the frequency of these disputes.

The starting point is early consultation. The Forest Service planning regulations recognize “the Federal Government’s trust responsibility for federally recognized Indian tribes. The Responsible Official must consult with, invite and provide opportunities for federally recognized Indian Tribes to collaborate and participate in planning.”

Moreover, it is also appropriate for Federal agencies to consult with Native American traditional religious leaders and practitioners who have knowledge about sacred places under Federal jurisdiction, in addition to consulting with representatives of tribal governments, if they are to fulfill their obligations under such laws as the American Indian Religious Freedom Act and National Historic Preservation Act. Consultation with Native American religious leaders and practitioners does not take the place of government-to-government consultation with tribes, but at the same time consultation with religious leaders and practitioners is not inconsistent with the government-togovernment relationship between the United States and each Indian tribe. A well designed consultation process should ensure that tribes and traditional practitioners that can be reasonably identified by the agency will receive notice and a meaningful opportunity to provide information and input into the agency action.

Consultation by itself is not enough, however. The Forest Service should establish some concrete management goals that can be adopted administratively and developed through the type of consultation that has been described. Among steps that can be administratively authorized are the following: Each National Forest should be directed to amend its Forest Plan to provide greater protection for traditional cultural properties and sacred places.

These places need not be specifically identified in the consultation process to be managed for their protection, but rather can be identified as being located within areas of sensitivity. Areas so designated can then be placed in a land management classification designed to protect their integrity and allow for access by traditional Native practitioners, allowing only such multiple uses as may be consistent with the ceremonial needs of these practitioners. In appropriate cases, the Forest Service should petition the Bureau of Land Management to withdraw certain lands from development to protect these areas of sensitivity. It is important to remember that access is not enough. The key is access plus protecting the integrity of the site—not just the physical integrity per se, but also those qualities that make it of spiritual or ceremonial importance.

Shale Slough, a backwater of the Quinault River near Taholah, provides refuge for migrating birds, such as these swans, as well as salmon fry.

The Forest Service should seek to encourage co-management or shared stewardship of traditional cultural and sacred places between the Forest Service and Indian tribes, including a numerical annual goal for the negotiation of such agreements. There are examples where tribes and federal agencies have already entered into comanagement agreements, such as Kasha-Katuwe Tent Rocks National Monument. Moreover, Congress recently endorsed agreements involving federal land management between tribes and the Forest Service for purposes such as fire prevention and land restoration in the Tribal Forest Protection Act of 2004.

Establish a policy providing for temporary closures of federal lands for ceremonial purposes. There are both legislative (El Malpais National Monument) and administrative (Bighorn Medicine Wheel) examples where such policies have been adopted. The authority of local land managers to make this accommodation should be made explicit.

It is incumbent upon the Forest Service to encourage these reforms. Recently, the Forest Service appointed a Sacred Lands Task Force that is charged with developing recommendations to strengthen Forest Service procedures pertaining to sacred sites on National Forest lands. That Task Force could recommend and the Forest Service could adopt a policy that would require all Forests to consult with tribes and traditional practitioners in order to implement the administrative changes that have been described. Through consultation at the planning stages, by steering development to acceptable places through the planning process, establishing co-management agreements and providing for temporary closures for ceremonial use, the number of cases where conflict occurs in the context of specific projects can be greatly decreased. Such policies would be an important step toward fully respecting the beliefs and traditional cultural and sacred places of Native peoples.

by
Jack F. Trope
Executive Director, Association on American Indian Affairs

(Footnotes)
1 The Religious Freedom Restoration Act (RFRA) is another law that has been raised in recent court cases dealing with the protection of sacred lands. RFRA is a general law that seeks to protect the free exercise of religion. It does not specifically mention Indian religions or sacred sites and it is unknown at present to what extent this law will provide substantive protection to threatened sites.