Protecting Native American Objects and Sites

Indian Country Today has a couple of very interesting articles by American Cultural heritage lawyers. The first, an article by Gabriel Galanda and Debora Juarez covers threats to sacred places “off-reservation”. Here’s an excerpt:

Sacred lands are indeed under attack. Developers are willing to pillage such lands whenever profitable. By way of example, as the Times piece explained, an energy development company threatens to build a $4 billion oil refinery atop lands believed to be the final resting place for Quechan ancestors. And, if state governments are not likewise seeking to excavate Indian burial grounds or sacred lands for highways, sewer systems or other public works projects, state decision-makers are attempting to make it easier for private developers to do so.

In March, the Idaho Legislature unanimously passed a law that will allow state officials to automatically unearth tribal ancestors from their finally resting places when discovered on private lands. An Idaho state spokesman cited digging up ancestral remains as a great solution because it would be done ”at no cost to the landowner and with no delay to the project.” Currently, the Washington state Legislature is studying ”the legal processes to permit the removal of human remains from property” so development can also proceed on ceded lands in Washington without cost or delay.

Tribal governments and citizens must stand prepared for battle in this new kind of Indian war. This is the first of a two-part series designed to equip tribes with the legal weaponry that they need to defend their sacred places.

In the second article, Sharon Haensly talks about prospective steps that Indian tribes can take to protect sites from development and destruction. Some steps which tribes should take include:

  • Declare, in tribal law, the tribe’s property and other legal rights in off-reservation sacred sites and in the access routes to them.
  • Avoid the legally ambiguous term ”cultural resources,” and use the term ”cultural property” whenever possible.
  • Create a tribal register of sacred sites, designate specific sites on tribal registers, and decide when and how to share this information with other governments and developers.
  • Organize and maintain an ever-growing database of written information that supports the tribe’s cultural connection to sacred sites.
  • Describe in tribal law the preferred methods for conducting off-reservation inventories and handling accidental discoveries of cultural property.
  • Ensure that tribal constitutions extend tribal jurisdiction, including tribal court jurisdiction, over off-reservation cultural properties.

Those all appear to be excellent strategies especially as the tension between development and preservation will always exist, especially in the American West. In the United States protection of Native American sites and artifacts often depends upon where an object is located, whether its private land, State-owned land, or Federal land. Protection seems to work reasonably well overall, but it’s a confusing patchwork approach, and subject to some really unfortunate abrogations as may take place in Idaho. In such a legal environment, tribes need to be proactive and prepare for disputes before they occur.

This is a topic which is receiving more scholarly attention of late. An excellent article in the most recent issue of the Journal of Art, Antiquity and Law by Carolyn Shelbourn compares the protection of archaeological resources in the United States and England, Protecting Archaeological Resources in the United States: Some Lessons for Law and Practice in England, 12 Art, Ant. & L. 258 (2007).

Questions or Comments? Email me at derek.fincham@gmail.com

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