Contents

• Introduction
• Understanding Sacred Sites: An Overview
• Sacred Sites and the Federal Government: Historical Foundation
• Selected Authorities Governing Indigenous Sacred Site Management
• American Indian Religious Freedom Act
• Executive Order 13007, "Indian Sacred Sites"
• Antiquities Act
• Archeological Resources Protection Act
• Native American Graves Protection and Repatriation Act
• National Historic Preservation Act
• National Environmental Policy Act
• The First Amendment and the Religious Freedom Restoration Act
• Selected Agency Policies and Actions Addressing Indigenous Sacred Sites
• Interagency Memorandum of Understanding
• Issues for Congress
• Defining and Identifying Sacred Sites
• Sacred Sites as Historic Properties
• Confidentiality of Sacred Sites Information
• Evaluating Sacred Site Protection Against Other Statutory Priorities
• Agency and Tribal Capacity

Summary

In federal policy discussions, the term sacred site traditionally has been used to describe places of religious or spiritual importance to the Indigenous peoples who originally inhabited the North American continent prior to European colonization. Due, in part, to forced removal, treaty negotiations, and other historical events, Indigenous groups in the United States are often reliant on the federal government to both protect and provide access to sacred sites that they claim are necessary for exercising certain cultural and religious practices. The federal government's role and responsibility to ensure such protections or access have been long-standing legal and policy questions that raise issues related to federal land management, religious freedom, and the extent of the government's obligations to the Indigenous peoples of the United States.

Multiple statutes, executive orders, and regulations direct federal agencies to consider impacts to Indigenous sacred sites. Some of these authorities aim primarily at accommodating Indigenous religious practices by allowing access to sacred sites located on federal lands (e.g., Executive Order 13007, "Indian Sacred Sites"). Other authorities address the protection and preservation of historic and cultural properties more broadly, including properties that may be considered sacred to Indigenous peoples (e.g., the Antiquities Act [54 U.S.C. §§320301-320303], Archeological Resources Protection Act [16 U.S.C. §§470aa-470mm], Native American Graves Protection and Repatriation Act [25 U.S.C. §§3001 et seq.]). Certain laws also may require federal agencies also may to consult or coordinate with certain Indigenous groups prior to taking certain actions, including actions that may impact religious or cultural traditions (e.g., National Historic Preservation Act [54 U.S.C. §§300101 et seq.], National Environmental Policy Act [42 U.S.C. §§4321 et seq.]). In addition, Congress has enacted several laws aimed at expanding protection for religious exercise in general (e.g., Religious Freedom Restoration Act) or accommodating Indigenous religious practices (e.g., American Indian Religious Freedom Act [42 U.S.C. §§1996 et seq.]). Over the years, federal agencies also have issued various regulations and policies, entered into multiagency agreements, and published reports that address Indigenous sacred site protection and access.

Whether or to what degree current authorities adequately protect or consider the protection of Indigenous sacred sites has been a subject of debate and litigation. Indigenous peoples have challenged federal actions impacting sacred sites pursuant to various procedural statutes—including the National Historic Preservation Act and the National Environmental Policy Act—as well as religious protection laws such as the Religious Freedom Restoration Act (42 U.S.C. §2000bb et seq.). Other constitutional challenges have been brought under the Constitution's First Amendment, which provides that the government "shall make no law ... prohibiting the free exercise" of religion. To date, legal challenges brought under constitutional and/or statutory religious exercise authorities have been largely unsuccessful in procuring certain protections for Indigenous sacred sites.

Some Members of Congress and stakeholders have considered the adequacy of legal protections for Indigenous sacred sites, as well as how to evaluate sacred site access and protections against other statutory and congressional priorities. For example, some stakeholders have called for more expansive legislation to provide broad-based protections for sacred sites. Others have objected to prioritizing the protection of sacred sites above other authorized uses of federal lands such as recreation, energy and mineral development, grazing, and more. In addition, whether or how to define and identify Indigenous sacred sites has been of interest, with some Members and stakeholders advocating for increased deference to Indigenous groups when determining what constitutes a sacred site. Others have raised concerns that absent clear parameters for what constitutes a sacred site, large swaths of the federal estate could be closed off for the purposes of accommodating religious or traditional use by a selected group of individuals. Other policy and legislative issues include confidentiality and disclosure concerns related to the sharing of sensitive religious or cultural information and more general concerns related to agency and tribal capacity to address issues related to Indigenous sacred site management and protection.

Introduction

Throughout history, people around the world have regarded certain landscapes, sites, and buildings as places of spiritual or religious significance. These places can include a wide range of geographical or physical formations that may be large or small, natural or man-made, terrestrial or aquatic. Collectively, these diverse places are often referred to as sacred sites.¹

In federal policy discussions, the term sacred site traditionally has been used to describe places of importance to the Indigenous peoples who inhabited the North American continent prior to European colonization.² Many of these Indigenous peoples developed deep cultural, spiritual, and religious ties to sacred sites located on their ancestral homelands.³ However, due to forced removal, treaty negotiations, and other historical events, many Indigenous peoples no longer live on or near these ancestral lands; instead, the federal government now owns and manages land where sacred sites exist.⁴ As a result of this and other factors, Indigenous groups in the United States often are reliant on the federal government to both protect and provide access to sacred sites that these groups claim are necessary for exercising certain cultural and religious practices.

Congress and federal land management agencies (FLMAs) evaluate these interests against other statutory mandates and congressional priorities when determining how to manage federal lands.⁵ Whether—and, if so, to what degree—the federal government is required to provide such protections or access have been long-standing legal and policy questions that raise issues related to federal land management, religious freedom, and the extent of the government's obligations to the various Indigenous peoples of the United States.

This report begins with a discussion of how religious and cultural practices of Indigenous peoples in the United States may interact with non-Indigenous perceptions and practices. It examines what may constitute a sacred site from various Indigenous peoples' perspectives, as well as how the term has been defined in the legal and practical contexts. The report also provides an overview of federal statutory and administrative authorities related to Indigenous sacred site protection and access, with a particular emphasis on sacred sites located on federal lands. It also discusses the legal and policy considerations that have been raised when determining the right of an individual or group to utilize land owned by the federal government for religious or cultural purposes, including challenges brought under laws that protect religious exercise. Finally, the report discusses potential congressional considerations moving forward regarding Indigenous sacred site management, protection, and access.

Understanding Sacred Sites: An Overview

Determining what makes a particular place sacred to Indigenous peoples can be difficult for various reasons. Generally speaking, the term sacred is used to connote religious or spiritual significance. There is no single Indigenous religious tradition; instead, religious beliefs among Indigenous peoples often differ by location or group. A site considered sacred by one group for certain religious or cultural reasons may not carry the same spiritual significance for others. As a result, general statements regarding Indigenous religious or spiritual practices—and, in turn, what constitutes sacredness—can fail to accurately reflect the diversity of perspectives and beliefs.

This heterogeneity of religious or spiritual practices is reflected in the wide range of places considered sacred to various Indigenous peoples in the United States and the purposes for which such places are utilized for religious traditions. For example, a place may be sacred due, in part, to its role in religious narratives or oral traditions, as is the case with Bear Butte—a small mountain in the northeast corner of the Black Hills of South Dakota understood by many Indigenous peoples to be a place where their Creator communicates through visions and prayer.⁶ For many Native Hawaiian families ('ohanas), burial sites are considered especially sacred grounds due to the spiritual importance of ancestral remains (iwi kūpuna).⁷ In other instances, certain locations may be historic routes of pilgrimage or traditional hunting and gathering sites. For centuries, certain Indigenous peoples in the American Southwest have made annual pilgrimages to Zuni Salt Lake in New Mexico to harvest salt for ceremonial purposes.⁸

For some Indigenous groups, a sacred site can extend beyond just a physical location to include plants, animals, sound, light, viewsheds, and other sometimes intangible features.⁹ Members of the Wampanoag Tribes of Massachusetts, for example, consider the entirety of Nantucket Sound—from the marine life to the submerged lands to the juncture of the water and rising sun—to be integral to their religious, cultural, and ceremonial practices (translated to English, Wampanoag means People of the First Light or Dawn).¹⁰ Similarly, the entire region of the lower Colorado River and Gila River are major focal points in the cosmology of the Yuma Quechan Tribe, as well as other federally recognized Tribes (hereinafter referred to as Tribes) in the area.¹¹ Various geographic features along the river regions—from individual mountain peaks to the desert pavement floor—are considered by certain Indigenous peoples to have independent sacred qualities that together contribute to an interconnected sacred landscape.¹²

Another potential challenge in determining what constitutes an Indigenous sacred site is perceived differences between Indigenous spirituality and the dominant non-Indigenous religions in the United States.¹³ For example, some scholars have suggested that many Indigenous religions tend to eschew the importance of precise chronological histories favored by some Judeo-Christian religions, instead emphasizing the importance of place (i.e., "what happened here") over time ("what happened then").¹⁴ At times, this has led to misunderstandings of why certain sites that may appear to be no longer in use or regularly visited can still be important fixtures in Indigenous religious understanding; sacred places may not be considered abandoned, as such time distinctions may be irrelevant to Indigenous practitioners.¹⁵ This can conflict with non-Indigenous perceptions of what makes a place spiritually significant. In other instances, the sacred significance of a place may conflict with non-Indigenous understandings of what constitutes a religious versus secular practice.¹⁶ For example, non-Indigenous individuals may view the Confederated Tribes and Bands of the Yakama Nation's (Yakama's) connection to fishing for Chinook salmon in the Columbia River as a means to support the economic and nutritional needs of the Tribe. However, many of the Yakama view salmon as an integral part of their spiritual and cultural identity.¹⁷ As a result, the Tribe sees the Columbia River, its waters, and the salmon that flow through it as sacred and requiring protection.¹⁸

Although defining Indigenous sacred sites is challenging, the federal government has, at times, shown interest in the designation, management, and protection of such places. The following sections discuss the history of the federal government's role in managing and administering sacred sites, including the current statutory and administrative framework guiding federal agencies.

Sacred Sites and the Federal Government: Historical Foundation

Indigenous peoples have inhabited North America for millennia, developing deep cultural and spiritual ties to the landscape, some of which continue to exist today.¹⁹ Centuries of federal policymaking have profoundly affected the ways in which Indigenous peoples have access to and interact with these lands, as well as Indigenous peoples' ability to practice their religious traditions. These historical foundations inform how some Indigenous peoples may claim access to, or seek to influence the management of, sacred sites located both on and off federal lands.

Throughout the 18^th and early 19^th centuries, the federal government took steps to reduce the Indigenous land base to make room for westward expansion. In some instances, the federal government and Indigenous peoples negotiated treaties that resulted in Indigenous peoples ceding their ancestral homelands to the United States in exchange for what would become tribal reservations.²⁰ At other times, the federal government directly annexed land or entered into settlement agreements with Indigenous peoples that often resulted in similar displacement or removal.²¹ As a result, many Indigenous peoples no longer occupy the lands they traditionally used for religious and ceremonial purposes. Instead, many of the ancestral homelands previously occupied by Indigenous peoples, including lands containing Indigenous sacred sites, are now owned and managed by the federal government.

At the same time that Indigenous peoples were being removed from their ancestral homelands, the federal government was establishing formal policies aimed at curtailing or suppressing certain Indigenous religious practices.²² For example, in 1883, the Commissioner of Indian Affairs issued a series of regulations that established Courts of Indian Offenses, which were responsible for administering civil and criminal law on Indian reservations.²³ These courts established prohibitions on certain Indigenous religious and cultural traditions, including the performance of communal ceremonies and dances, ritual acts of property destruction carried out in accordance with tribal mourning customs, and other site-specific religious practices.²⁴ In addition, the federal government enacted laws in the late 19^th and early 20^th century allotting certain tribal lands to Christian missionaries.²⁵ According to some scholars, the goal of such laws was, in part, to supplant Indigenous religions with Christianity and to separate Indigenous peoples from their religious traditions.²⁶

This complicated history has led to modern-day debates and challenges in federal decisionmaking related to Indigenous sacred sites and religious practices.²⁷ For example, various treaties reserved certain rights for Indigenous peoples still in place today. These include spiritually important rights to continue hunting, fishing, or gathering on lands ceded to the federal government.²⁸ In such instances, even if individual Tribes or Indigenous groups are no longer located near federal lands, they may have rights to access those lands. Other treaties provided for the retention of certain sacred lands by Tribes, but the federal government subsequently reclaimed ownership, often at the objection of tribal citizens.²⁹ Even in the absence of any existing treaty rights, some Indigenous peoples may still have a historical claim to or interest in certain federal lands containing sacred sites. For federal land managers, these historical and legal considerations may be considered alongside the various other purposes for which federal land is managed, including conservation, recreation, grazing, and energy development.³⁰

More broadly, federal decisionmaking regarding Indigenous sacred sites occurs within the context of the government's federal trust responsibility to certain Indigenous peoples. The federal trust responsibility is a legal obligation under which the United States, through treaties, acts of Congress, and court decisions, "has charged itself with moral obligations of the highest responsibility and trust" toward Tribes.³¹ The federal trust responsibility has been interpreted to include obligations to protect tribal treaty rights as well as lands, assets, and resources—including sacred sites—on behalf of Tribes.

The federal government grapples with a complex framework of historical treaties, court decisions, land use mandates, and administrative guidance—as well as the impact on religious exercise—when making decisions regarding use of federal land and the management and protection of Indigenous sacred sites located on lands under federal jurisdiction. The subsequent sections of this report provide an overview of this framework and background on how such factors traditionally have been considered in agency decisionmaking.

Selected Authorities Governing Indigenous Sacred Site Management

Many different statutes, executive orders, and regulations direct federal agencies to consider impacts to Indigenous sacred sites. Some of these authorities are aimed primarily at accommodating Indigenous religious practices by allowing access to sacred sites located on federal lands. Other authorities address the protection and preservation of historic and cultural properties more broadly, including properties that may be considered sacred to Indigenous peoples. In some instances, Congress also has required federal agencies to consult or coordinate with certain Indigenous groups prior to taking certain actions, including actions that may impact religious or cultural traditions.

Additionally, some federal laws address the protection of religious freedom either in general or more specifically directed toward the accommodation of Indigenous religious practices. Selected relevant authorities are discussed below. Also, certain historical treaties provide some Tribes with rights to access federal lands, including to gather plants and wildlife for religious or spiritual purposes (see "Sacred Sites and the Federal Government: Historical Foundation"). Some laws also contain site-specific management requirements related to Indigenous sacred sites at particular land units.³² In addition, FLMAs have established agency policies that may guide the protection or consideration of Indigenous sacred sites, as outlined in "Selected Agency Policies and Actions Addressing Indigenous Sacred Sites."

Whether or to what degree these authorities adequately protect or consider the protection of Indigenous sacred sites or Indigenous religious practices has been a subject of debate. In addition, some stakeholders have advocated that protection of sacred sites must be considered within the context of other land management mandates established in law. For further discussion of the implementation of these authorities and mandates—as well as their impact on Indigenous sacred sites—see the "Issues for Congress" section of this report.

American Indian Religious Freedom Act

The American Indian Religious Freedom Act (AIRFA; codified at 42 U.S.C. §§1996 et seq.), enacted in 1978, establishes a policy of the United States "to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rights."³³ AIRFA instructs the President to direct federal agencies to evaluate their policies and procedures (in consultation with native traditional religious leaders) to preserve Native American religious cultural rights and practices.³⁴ Pursuant to the law, a federal task force comprising more than 30 federal agencies issued a report to Congress in 1979 that detailed the history of the federal government's role in obstructing Indigenous religious practices and made recommendations for administrative procedures and future legislative actions to implement AIRFA.³⁵ Congress amended AIRFA in 1994 to include a provision protecting the use, purchase, transport, and possession of peyote for certain Indigenous religious purposes; no further related legislative action has been taken.³⁶

AIRFA sets a broad policy of accommodating and protecting Indigenous religious practices and does not contain any enforcement mechanisms nor create any "judicially enforceable individual rights."³⁷ As a result, the degree to which AIRFA has been successful in adequately protecting Indigenous sacred sites or providing a guarantee of religious freedom has been controversial.³⁸

Executive Order 13007, "Indian Sacred Sites"

In 1996, then-President Clinton issued Executive Order (E.O.) 13007, "Indian Sacred Sites," which requires FLMAs, to the extent practicable, to "accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites."³⁹ The E.O. does not create any substantive or procedural rights or benefits enforceable by any party against the United States. Instead, the E.O. provides guidance to federal land managers when faced with balancing various land use mandates with the protection of and access to sacred sites.

E.O. 13007 defines the term sacred site as "any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion."⁴⁰ The E.O. further states that in order to be considered a sacred site, "an Indian tribe or individual determined to be an appropriately authoritative representative of an Indian religion" must inform the agency of its existence.⁴¹ The E.O. defines Indian tribe to mean a federally recognized Tribe (including Alaska Native Tribes) and does not include other Indigenous peoples.

The E.O. also directs agencies to develop procedures to provide Tribes with reasonable notification of proposed actions or land management policies that may restrict access to or ceremonial use of, or that may adversely affect, sacred sites. Following the issuance of E.O. 13007, various federal agencies adopted guidelines and policies aimed at promoting the protection of sacred sites and establishing consultation procedures for when agency decisionmaking impacts such sites.⁴²

Antiquities Act⁴³

The Antiquities Act (54 U.S.C. §§320301-320303) was enacted in 1906 in response to the destruction of prehistoric ruins and other archaeological sites in the western United States, often by amateur archaeologists and treasure hunters.⁴⁴ The act authorizes the President to proclaim as national monuments "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" that are situated on federal lands.⁴⁵ When designating a national monument, the President may reserve parcels of land as part of the monument, so long as the parcels are limited to "the smallest area compatible with the proper care and management of the objects to be protected."⁴⁶ Once the President proclaims a national monument, use of the federal lands and resources within the monument's boundaries are subject to the provisions specified in the proclamation, as well as laws generally applicable to the agency or agencies identified by the President to manage the lands, among other authorities. Since 1906, Presidents have proclaimed more than 160 monuments, including in marine areas.⁴⁷

The Antiquities Act has been used to protect a wide range of objects of historic or scientific interest. In some cases, the authority has been used to designate (or expand) national monuments that include sites sacred to Indigenous groups. For example, in August 2023, President Biden designated Baaj Nwaavjo I'tah Kukveni–Ancestral Footprints of the Grand Canyon National Monument, directing the relevant land management agencies to "ensure the protection of sacred sites and cultural properties and sites in the monument and ... provide access to Tribal members for traditional cultural, spiritual, and customary uses."⁴⁸ In some cases, designations made pursuant to the Antiquities Act also have included certain directives that provide for tribal input or consultation in management decisions. For example, in March 2023, President Biden designated the Avi Kwa Ame National Monument, a site of significant spiritual important to various Indigenous peoples.⁴⁹ In designating the monument, the proclamation directed the Secretary of the Interior to establish and maintain an advisory committee—the majority of which must comprise "members of Tribal Nations with a historical connection to the lands"—to help assist in the management of the site.⁵⁰

Archeological Resources Protection Act

The Archeological Resources Protection Act (ARPA; 16 U.S.C. §§470aa-470mm), enacted in 1979, regulates the excavation and removal of archaeological resources from public lands and Indian lands.⁵¹ As defined under ARPA, archaeological resources are "any material remains of past human life or activities which are of archaeological interest as determined by uniform regulations" and specifically include "pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any piece or portion of the foregoing items."⁵² Generally, ARPA requires that persons seeking to excavate or remove archaeological resources from public lands or tribal lands first obtain a permit, subject to certain exceptions.⁵³ ARPA directs the Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority, after consultation with Tribes and others, to issue implementing regulations.⁵⁴ ARPA provides for criminal penalties for knowing violations of the statute as well as potential civil penalties for violations of a permit or of implementing regulations issued under the statute.⁵⁵

Certain Indigenous sacred sites located on federal and tribal lands may be considered archaeological resources under ARPA; however, not all sacred sites may meet the act's definition of this term. ARPA and its implementing regulations include certain consultation requirements for excavations that may adversely impact Indigenous sacred sites. Specifically, if a federal land manager determines that a permit issued under ARPA may result in "harm to, or destruction of" a "religious or cultural site," the manager must notify any Tribe "which may consider the site as having religious or culture importance" at least 30 days before issuing the permit.⁵⁶

Native American Graves Protection and Repatriation Act

In 1990, the Native American Graves Protection and Repatriation Act (NAGPRA; 25 U.S.C. §§3001 et seq.) was enacted. Among other provisions,⁵⁷ NAGPRA provides for the regulation of the intentional or inadvertent discovery of Native American human remains and cultural items, including funerary objects, sacred objects, and objects of cultural patrimony from federal or tribal lands.⁵⁸ The law and implementing regulations outline a process for protecting such remains and cultural items and provide for potential repatriation to lineal descendants, Tribes, or other parties that can establish a cultural affiliation.⁵⁹

NAGPRA requires that any person who wishes to excavate human remains and cultural items must first obtain a permit issued under ARPA.⁶⁰ For incidental discoveries, the activity that led to such a discovery (e.g., construction, logging, mining, etc.) must temporarily cease, and the person or entity must make a reasonable effort to protect the discovered items. The person or entity that makes a discovery must notify the relevant federal land manager as well as the appropriate Indian tribe⁶¹ or Native Hawaiian Organization (NHO),⁶² if known or readily ascertainable.⁶³ NAGPRA also provides for civil penalties for noncompliance with the law.⁶⁴

NAGPRA does not specifically address sacred sites; however, certain Indigenous peoples may consider certain grave sites or burial grounds sacred for various reasons. For further discussion, see "Understanding Sacred Sites: An Overview."

National Historic Preservation Act

Enacted in 1966, the National Historic Preservation Act (NHPA; 54 U.S.C. §§300101 et seq.) requires federal agencies to review the potential impacts of federal or federally assisted actions on historic properties and to consult with interested parties to seek ways to avoid, minimize, or mitigate any adverse effects.⁶⁵ The NHPA defines a historic property as "any prehistoric or historic district, site, building, structure, or object" that is included on, or eligible for inclusion on, the National Register of Historic Places (National Register).⁶⁶ For properties not already included on the National Register, determination of eligibility is made during the Section 106 process and in consultation with relevant parties.⁶⁷ In 1992, Congress amended the NHPA to clarify that properties of traditional religious and cultural importance to a Tribe or NHO may be considered historic properties eligible for inclusion on the National Register.⁶⁸

Section 106 of the NHPA contains the requirement for federal agencies to review impacts to historic properties, and reviews under this section are known as "Section 106 reviews."⁶⁹ For federal actions expected to occur on or affect historic properties on tribal lands, the agency must consult with the relevant tribal historic preservation officer (THPO) throughout the Section 106 review process.⁷⁰ In addition, federal agencies must consult with any Indian tribe or NHO that "attaches religious and cultural significance" to historic properties potentially affected by the undertaking, regardless of whether the potential property is located on or off tribal lands.⁷¹ Although Section 106 review does not require an agency to select the option that best avoids adverse effects, the NHPA's implementing regulations outline potential ways to resolve situations in which adverse effects may occur.⁷² This includes entering into formal agreements with THPOs, Indian tribes, NHOs, and other parties that establish mitigation or avoidance options for the project in question, documentation/survey requirements, community engagement stipulations, and other provisions.⁷³

Locations meeting the definition of sacred sites under E.O 13007 are frequently understood by Indigenous peoples and federal agencies to also be historic properties of religious and cultural significance under the NHPA.⁷⁴ As a result, consideration of sacred sites and other requirements pursuant to E.O. 13007 are frequently raised during Section 106 review.⁷⁵ Although sacred sites and historic properties may overlap, E.O. 13007 and Section 106 of the NHPA impose separate and distinct requirements on federal agencies.

Numerous Indigenous sacred sites have been nominated for, and listed on, the National Register as traditional cultural properties, a specific type of historic property. For more information, see the text box below, "Traditional Cultural Properties and Sacred Sites."⁷⁶

National Environmental Policy Act⁷⁷

Enacted in 1970, the National Environmental Policy Act (NEPA; codified at 42 U.S.C. §§4321 et seq.) requires agencies to identify and evaluate the impacts of "major Federal actions significantly affecting the quality of the human environment" prior to finalizing decisions on those actions.⁷⁸ Although NEPA does not specifically refer to sacred sites, the law requires the consideration of impacts on "historic, cultural and natural aspects of our national heritage."⁷⁹ Potential impacts to sacred sites may be part of the effects considered in a NEPA review.

Agencies often coordinate NEPA reviews with other federal review processes, including Section 106 of NHPA. Federal agencies often use their broad environmental review process, carried out under NEPA, as an "umbrella" compliance process.⁸⁰ Accordingly, agencies have structured the NEPA review process to help ensure identification of impacts to the quality of the human environment that may trigger review under these other laws.

The First Amendment and the Religious Freedom Restoration Act

The U.S. Constitution and certain federal laws generally provide protection against government infringement of religious exercise. Constitutionally, the First Amendment's Free Exercise Clause forbids the federal government from "prohibiting the free exercise" of religion.⁸¹ Over the years, the Supreme Court has established standards to determine when laws and governmental actions infringe on religious exercise under the First Amendment,⁸² including regarding Indigenous sacred sites. Perhaps most notable in the Indigenous sacred site context is the Court's 1988 decision Lyng v. Northwest Indian Cemetery Protective Association.⁸³ In Lyng, the Court rejected a Free Exercise Clause challenge to federal government plans to allow road construction and timber harvesting on national forest land that would irreparably damage sacred areas traditionally used by several Tribes (Yurok, Karok, and Tolowa) for religious purposes.⁸⁴ Although the Court acknowledged that the activities "could have devastating effects on traditional Indian religious practices," it concluded that the federal government action at issue would not "prohibit" the free exercise of religion as contemplated by the First Amendment.⁸⁵ The Lyng decision has proven to be a difficult hurdle for Indigenous challengers to overcome in Free Exercise Clause cases involving federal land management actions that conflict with Indigenous peoples' utilization of the land for religious purposes. To date, Indigenous challengers generally have been unable to prevail in these cases.⁸⁶

In 1993, Congress sought to expand protection for religious exercise, in part, through the enactment of the Religious Freedom Restoration Act (RFRA; 42 U.S.C. §§2000bb et seq.). Under RFRA, the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the federal government can demonstrate that the burden is (1) "in furtherance of a compelling governmental interest" and (2) is "the least restrictive means of furthering that compelling governmental interest."⁸⁷ A "person" whose religious exercise has been burdened may assert a violation of RFRA as a claim or defense in a judicial proceeding.⁸⁸ Since its enactment, courts have interpreted RFRA to first require a plaintiff to demonstrate that the governmental action or law imposes a substantial burden on their religious exercise before the burden shifts to the government to show its action is the least restrictive means of furthering a compelling interest.⁸⁹

RFRA has been used to challenge federal government actions that impact Indigenous sacred sites. In at least one instance, a federal trial court ruled in favor of a Tribe in an RFRA challenge to proposed government action on an Indigenous sacred site.⁹⁰ In that case, the Tribe sought to stop the federal government from constructing a military training center on land near a site that carried religious significance.⁹¹ The trial court agreed that the construction would impose a substantial burden on the Tribe's religious practices, because the construction would obstruct the view of terrain that was "central to the spiritual experience" of the Tribe.⁹² Despite the outcome in this case, most Indigenous sacred site challenges brought under RFRA have been unsuccessful.⁹³

In 2008, for instance, the U.S. Court of Appeals for the Ninth Circuit issued a decision regarding RFRA's application to Indigenous sacred sites. In Navajo Nation v. U.S. Forest Service, a number of Tribes challenged the government's authorization of a ski resort's proposed use of recycled wastewater to create artificial snow on a ski slope operated on a national forest.⁹⁴ The Tribes argued that the use of the recycled water—which contained 0.0001% human waste—would desecrate the sacredness of the religious sites on the mountain.⁹⁵ In evaluating the RFRA claim, the court held that based on "the express language of RFRA and decades of Supreme Court precedent," the use of recycled wastewater did not impose a substantial burden on the Tribes' exercise of religion.⁹⁶

More recently, the Ninth Circuit resolved a dispute brought by Apache Stronghold—an organization that represents the interests of certain citizens of the San Carlos Apache Tribe—regarding Oak Flat, an area located on federal land that is of "great spiritual value" to the San Carlos Apache and other Western Apache Tribes.⁹⁷ In 2014, Congress authorized the transfer of federal land, including Oak Flat, to a private company that intended to mine copper on the land using a technique that could eventually cause Oak Flat to collapse into a large crater.⁹⁸ After a number of years, access to Oak Flat would be prohibited because "it wouldn't be safe to have people accessing the land when it could subside."⁹⁹ In seeking to bar the land transfer, Apache Stronghold argued that the federal government action at issue would make it "impossible" for them to exercise their religion.¹⁰⁰ The Ninth Circuit rejected Apache Stronghold's RFRA claim, holding that, as in Navajo Nation, the federal government's transfer of land did not impose a substantial burden on the Tribes' exercise of religion.¹⁰¹

Selected Agency Policies and Actions Addressing Indigenous Sacred Sites

In addition to statutory requirements, federal agencies have issued various regulations and policies, entered into multiagency agreements, and published reports that address Indigenous sacred site protection and access. For example, in 1998, the Department of the Interior (DOI) issued a new Departmental Manual (DM) chapter outlining staff responsibilities to protect or accommodate access to Indigenous sacred sites to implement E.O. 13007.¹⁰² The DM requires all DOI bureaus to establish written guidance and procedures that ensure the protection and provision of access to Indigenous sacred sites "to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions."¹⁰³ The DM also requires such guidance to include provisions authorizing the use of written agreements with Tribes to provide access to sacred sites on federal lands, address confidentiality concerns, and outline processes for notice and dispute resolution.¹⁰⁴ Pursuant to the DM, various DOI bureaus have subsequently issued agency-specific policies. For example, NPS issued a policy stating that the agency "will, to the extent practicable, accommodate access to and ceremonial use of Indian sacred sites by religious practitioners from recognized American Indian tribes and Alaska Natives, and avoid adversely affecting the physical integrity of such sacred sites."¹⁰⁵ Similarly, FWS policy requires the agency to "meaningfully involve" Tribes when FWS actions may affect tribal cultural or religious interests, including archaeological resources, cultural resources, and sacred sites.¹⁰⁶

In 2012, following a multiyear review and outreach process, the U.S. Department of Agriculture (USDA) issued a report evaluating Forest Service (FS) compliance with E.O. 13007, including agency procedures regarding the protection, interpretation, and appropriate access to Indigenous sacred sites on FS lands.¹⁰⁷ Following its publication, FS updated its agency policies, incorporating many of the recommendations included in the 2012 report.¹⁰⁸ Among its provisions, the updated policy requires FS employees to develop and maintain working relationship with Tribes "in achieving the common values of shared stewardship, promoting ecosystem health, protecting cultural resources and sacred places, providing appropriate access to sacred places, and benefitting tribal communities to the greatest extent practicable and permitted by law."¹⁰⁹ FS noted that the use of the term sacred places as opposed to sacred sites came from the 2012 recommendations that sacred places would be a more inclusive approach to use when determining what may be considered sacred to Indigenous people.¹¹⁰ For further discussion of agency policies related to identifying sacred sites, see "Defining and Identifying Sacred Sites."

The Department of Defense (DOD) also has issued policies related to Indigenous sacred site protection, access, and management on lands under its jurisdiction. In September 2018, DOD updated its tribal consultation policy, "DOD Interactions with Federally Recognized Tribes," which requires DOD to consult with Tribes "whenever proposing an action that may have the potential to significantly affect protected tribal resources, tribal rights, or Indian lands."¹¹¹ Such consultation is to be conducted for "proposed actions, plans, or ongoing activities that may have the potential to significantly affect ... [a]ccess to sacred sites and treaty-reserved resources."¹¹² At that time, DOD also updated a similar policy related to consultation requirements, should a DOD action affect religious or cultural sites of importance to Native Hawaiians.¹¹³ In addition, DOD has issued agency-level policies for certain DOD branches related to providing access to cultural sites in its policy guidance for consulting with Tribes. For example, the U.S. Navy issued a policy in 2005 that includes a recurring consultation requirement with Tribes for proposed actions, including consulting on "access to sacred sites, [and] access to subsistence and medicinal natural resources."¹¹⁴

More recently, the Biden Administration issued guidance on sacred sites protection and access through its focus on the tribal co-stewardship of federal lands. In 2022, DOI and USDA issued a joint secretarial order (S.O.) on co-stewardship that directed their agencies and bureaus to manage federal lands and waters to protect "the treaty, religious, subsistence, and cultural interests" of Tribes.¹¹⁵ Pursuant to that S.O., several agencies issued guidance that included commitments to sacred sites access and protection.¹¹⁶ For example, the NPS guidance stated that it would "avoid adversely affecting the physical and spiritual integrity" of Indigenous sacred sites and develop "mutually agreeable strategies" for providing access for Indigenous peoples.¹¹⁷

Interagency Memorandum of Understanding

In 2012, five federal agencies (DOD, DOI, USDA, Department of Energy [DOE], and the Advisory Council on Historic Preservation [ACHP]) entered into a memorandum of understanding (MOU) to improve protection of, and access to, Indigenous sacred sites.¹¹⁸ The MOU committed the agencies to (1) build agency capacity by improving training and guidance for federal staff, especially on collaborating with Tribes, (2) build tribal capacity to effectively address sacred sites issues, (3) increase outreach to the public and nonfederal partners about maintaining the integrity of sacred sites, (4) develop recommendations related to maintaining the confidentiality of information about sacred sites, and (5) develop recommendations to address challenges related to the protection of sacred sites.¹¹⁹ A DOI-chaired working group was formed to oversee implementation of the MOU, and in March 2013, the group released an action plan that outlined how the agencies would implement the commitments.¹²⁰ Subsequently, the participating agencies issued a progress report outlining the tasks that had been accomplished and identifying next steps.¹²¹ In 2016, the signatories amended the agreement to extend the MOU to December 31, 2024.¹²²

In 2021, four of the five signatory agencies to the 2012 and 2016 MOUs (DOI, USDA, DOE, and ACHP), as well as four other agencies (Department of Transportation, Tennessee Valley Authority, U.S. Environmental Protection Agency, and White House Council on Environmental Quality), signed a new interagency MOU, which built on many of the goals identified in the 2012 and 2016 MOUs.¹²³ The latest MOU—which is reviewed annually—identifies opportunities for considering Indigenous sacred sites early in federal decisionmaking processes, adds a commitment to incorporate Indigenous knowledge when assessing the impacts of federal actions on sacred sites, and encourages public outreach on the importance of maintaining the integrity of sacred sites and the need for public stewardship to protect and preserve them. It also explicitly recognizes Native Hawaiian sacred sites not considered under the 2012 and 2016 MOUs and E.O. 13007. Pursuant to the 2021 MOU, the agencies published a best practices guide for working with Tribes and Native Hawaiians on the co-stewardship and co-management of sacred sites. These best practices include

• building sustainable relationships with Tribes and NHOs through consultation, engagement, and co-stewardship;
• supporting tribal and NHO capacity by offering financial and technical assistance;
• exercising discretion to accommodate sacred sites protection and access;
• physically protecting sacred sites;
• ensuring the confidentiality of Indigenous knowledge; and
• training the federal workforce and educating the public about issues related to the protection and accessibility of sacred sites.¹²⁴

Issues for Congress

The federal role in sacred site management, protection, and access is of perennial interest to Congress. In recent years, congressional considerations have included how to evaluate Indigenous sacred site access and protections against other statutory and congressional priorities, the adequacy of legal protections for Indigenous sacred sites, whether or how to define and identify such sites, concerns around confidentiality and disclosure of sensitive religious or cultural information, and general concerns related to agency and tribal capacity to address sacred sites issues. This section provides a brief overview of these issues, including discussion of stakeholder perspectives, past legislative initiatives, and recent congressional actions.

Defining and Identifying Sacred Sites

The federal government's ability or willingness to protect or provide access to Indigenous sacred sites often depends on first identifying what constitutes a sacred site. Whether and how to identify or define Indigenous sacred sites have been controversial issues among certain stakeholders. Debates have focused on the need to establish or define geographic limits of potential sacred sites, the contemporary usage or maintenance of such sites, and who gets to determine or identify a site as sacred.

E.O. 13007 defines sacred sites in the federal context as "any specific, discrete, narrowly delineated location" on federal land that is identified by a Tribe as sacred because of its "religious significance ... or ceremonial use."¹²⁵ Certain agency policies or guidance documents—such as the 2021 interagency MOU—have recognized that sacred sites "often occur within a larger landform or are connected through physical features or ceremonies to other sites or a larger sacred landscape."¹²⁶ Typically, however, such policies maintain the "specific, discrete, narrowly delineated" requirement established in E.O. 13007. Similar requirements apply to historic properties covered under the NHPA and its implementing regulations (for further discussion, see "Sacred Sites as Historic Properties").¹²⁷

Some Indigenous peoples and other stakeholders have objected to attempts to define sacred sites or similar terms in law or in a regulatory context, instead suggesting agencies defer exclusively to Indigenous peoples in determining whether a site has religious or spiritual importance.¹²⁸ In defining sacred sites, some have claimed that federal agencies may interpret the term too narrowly, excluding certain Indigenous religious practices and sites based on a legal definition.¹²⁹ For example, places considered sacred to certain Indigenous peoples often lack clearly defined boundaries or physical markers and can include plants, animals, sound, light, viewshed, and other sometimes intangible features.¹³⁰ In addition, some Indigenous sacred sites may extend beyond terrestrial locations and include water and airspace areas.¹³¹ Others have noted that because some Indigenous religious and spiritual traditions view the natural world as fundamentally interconnected, it may be difficult to distinguish one demarcated site as more sacred than another.¹³² Others have pointed out that requiring Indigenous peoples to define what constitutes sacredness in the context of their religious beliefs is not a requirement generally placed on other religious traditions.¹³³

Some scholars and stakeholders have countered that defined geographical boundaries are necessary to help identify, prioritize, and ultimately protect Indigenous sacred sites, while allowing the federal government to comply with its other statutory mandates.¹³⁴ Others have asserted that not limiting the scope of what constitutes a sacred site could lead to closing off large swaths of the federal estate for the purposes of accommodating religious or traditional use by a small group or a few individuals.¹³⁵ In particular, concerns have been raised around the degree of deference agencies should afford to Indigenous peoples in defining what constitutes a sacred site absent specific limitations and standards.¹³⁶

Debates also have arisen around the process by which agencies identify Indigenous sacred sites, particularly in the context of land use planning and federal environmental or cultural reviews. In general, federal laws, regulation, and guidance encourage—if not require—consultation and collaboration with certain Indigenous groups (e.g., Tribes, NHOs, Alaska Natives) when identifying sacred sites. For example, regulations implementing Section 106 of the NHPA require federal agencies to "acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them."¹³⁷ However, the degree to which such acknowledgement of expertise is sufficient has been controversial, with some stakeholders pushing for increased deference to Indigenous identification of sacred sites.¹³⁸ Others have suggested that existing consultation requirements have been successful in protecting sacred sites and accommodating the religious and cultural practices associated with them.¹³⁹

Sacred Sites as Historic Properties

Issues related to the scope of Indigenous sacred sites also have been raised within the context of the NHPA and the consideration of Indigenous sacred sites as historic properties. As discussed above, many (though not all) Indigenous sacred sites may be eligible for or included in the National Register and therefore subject to review under Section 106 of the NHPA. Such properties typically have been categorized as traditional cultural properties (TCPs). Among other requirements, NPS guidelines in "Bulletin #38: Guidelines for Evaluating and Documenting Traditional Cultural Properties" specified that potential TCPs must include specific boundaries, though the guidelines recognize that defining such boundaries "can present considerable problems."¹⁴⁰ Bulletin #38 further stated that "purely intangible" cultural values are not covered by Section 106 "unless they are somehow related to a historic property."¹⁴¹

Some stakeholders have raised concerns regarding the applicability of TCP criteria to certain Indigenous sacred sites, particularly when potential sites include primarily natural features as opposed to architectural or archaeological structures or where sites are not limited to discrete locations with a specified geographic footprint.¹⁴² In response to some of these concerns, NPS issued an updated version of Bulletin #38 in December 2024 following a multiyear revision process.¹⁴³ Among other changes, the new guidance changes the term traditional cultural property to traditional cultural place.¹⁴⁴ It also specifies that certain natural features, such as rocks, can qualify as historic under National Register criteria if they are "associated with a significant tradition or event."¹⁴⁵ The new guidelines, however, maintain the requirements for specified boundaries for any nominated place.¹⁴⁶ During the revision process, some stakeholders objected to this due, in part, to the difficulties of establishing clearly defined limits to certain sacred sites.¹⁴⁷

Issues also have arisen regarding whether Indigenous peoples must show historic and continuous use of a site for it to be considered eligible for a National Register listing.¹⁴⁸ Prior to the revision process, Bulletin #38 defined TCPs as properties that "(a) are rooted in that community's history, and (b) are important in maintaining the continuing [emphasis added] cultural identity of the community."¹⁴⁹ Although the guidance specified that NPS did not require a property to have been in continuous use by a community to be eligible for listing on the National Register,¹⁵⁰ it had been noted that this definition may imply such a requirement.¹⁵¹ Some stakeholders viewed this as potentially problematic in light of the forced removal of some Indigenous peoples from their homelands, which has made certain sites inaccessible or infrequently used for religious or ceremonial purposes, although the sites may still be spiritually significant.¹⁵² In other instances, Indigenous peoples may be engaging in religious activity at a site, but outside observers are unaware of the ongoing use because there is little physical evidence of it.¹⁵³ This can be particularly challenging if identifying or disclosing ongoing religious use would violate cultural or spiritual beliefs (for more discussion of this issue, see "Confidentiality of Sacred Sites Information"). Separately, some stakeholders have objected to any categorization of sacred sites as historic properties under the NHPA, as such categorization suggests the sites are valued only for their historical importance rather than for their contemporary religious or cultural significance.¹⁵⁴

Confidentiality of Sacred Sites Information¹⁵⁵

How to treat potentially sensitive or culturally specific information about Indigenous sacred sites also has been raised as an issue. On the one hand, sacred sites can be hard to define and protect, because they often lack clearly defined boundaries or a physical marker. Information shared by Indigenous peoples is therefore often considered essential for the agency to identify areas for protection.¹⁵⁶ Without this information, federal agencies may move forward with actions that inadvertently damage or result in the destruction of Indigenous sacred sites.¹⁵⁷ On the other hand, Indigenous groups are often hesitant to disclose information related to the location, use, and importance of sacred sites.¹⁵⁸ For example, some groups may want to prevent non-Indigenous peoples from accessing Indigenous sacred sites, or Indigenous religious, cultural, and societal norms may restrict them from sharing such information.¹⁵⁹ Some groups have raised concerns about the potential public release of agency maps depicting culturally sensitive or religious sites to the public.¹⁶⁰ More generally, historical distrust of the federal government—particularly with respect to Indigenous religious practices—has left many Indigenous groups reluctant to share sensitive information.¹⁶¹

In cases where sensitive information is shared with the federal government, federal officials have sometimes expressed concern about their ability to protect sacred sites while maintaining confidentiality.¹⁶² This is because federal law and agency regulations vary regarding the disclosure or confidentiality of Indigenous religious or sacred site information. ARPA, NHPA, and NAGPRA all have statutory or regulatory confidentiality provisions that provide agencies with the authority to withhold from disclosure sensitive information related to Indigenous sacred sites.¹⁶³ However, this authority is often dependent on the agency determining whether such information meets the statutory or regulatory requirements for withholding. Similarly, E.O. 13007 directs agencies, "where appropriate, to maintain the confidentiality of sacred sites."¹⁶⁴ Furthermore, sites that are not covered under these laws, but are still considered sacred by certain Indigenous peoples, may not be afforded similar privacy or confidentiality. In some instances, agencies may be statutorily required to share information with the general public. For example, the Freedom of Information Act (FOIA; 5 U.S.C. §552) provides the public a right to access certain federal agency information.¹⁶⁵ Similarly, if an FLMA opts to temporarily close public access to a sacred site to allow for religious or cultural use, the agency may be required to develop a record supporting such a decision under the Administrative Procedure Act (5 U.S.C. §§551 et seq.) or other laws.

To address some of these concerns, certain agencies have established policies and guidance regarding the collection and storage of Indigenous sacred site data. For example, according to a report issued in 2023, the Federal Communication Commission maintains a system for confidentially managing sensitive site information and for considering that information in facility siting proposals.¹⁶⁶ An interagency working group formed pursuant to the 2022 Sacred Sites MOU (see "Interagency Memorandum of Understanding") also provided agencies with guidance related to confidentiality, including the recommendation that agencies "seek only the minimum information necessary to sufficiently support agency action."¹⁶⁷ Some federal agencies also have entered into agreements with Tribes that commit to developing communication protocols regarding the sharing and protection of sensitive or confidential information.¹⁶⁸

Some stakeholders and scholars have recommended that Congress provide additional statutory directives to maintain the confidentiality of Indigenous information provided to agencies. For example, some Indigenous groups have suggested amending FOIA to exempt culturally sensitive information shared with agencies during consultation from public disclosure.¹⁶⁹ Although FOIA does provide for certain exemptions, including for information that is "specifically exempted from disclosure by [another] statute,"¹⁷⁰ not all sacred site information may fall within this requirement. Over the years, Congress has considered legislation that would exempt information shared by Indigenous peoples from FOIA,¹⁷¹ as well as legislation requiring agencies to protect Indigenous knowledge when requested.¹⁷² Such legislation may be considered in the context of perceived overuse of FOIA exemptions or assertions that the general public has a right to potentially sensitive information relevant to agency decisionmaking and the management of public resources.¹⁷³

Evaluating Sacred Site Protection Against Other Statutory Priorities

FLMAs generally manage lands under their jurisdiction for various purposes and uses pursuant to numerous directives, including statutory mandates, executive orders, agency regulations and policies, land management plans, and area-specific decisions. Permissible uses of some lands—such as energy development, mineral extraction, and recreation—may have the potential to impede access to, degrade, or destroy Indigenous sacred sites located on these lands.¹⁷⁴ Some activities pursued for national security reasons, such as some border protection activities, also could impact Indigenous sacred sites.¹⁷⁵ The degree to which FLMAs balance Indigenous interests in protecting or providing access to sacred sites with other land management uses and priorities has been a perennial issue of congressional interest.

While land managers have sometimes accommodated Indigenous interests in protecting or providing access to such sites, some stakeholders have called on federal agencies to be more proactive in their efforts.¹⁷⁶ However, FLMAs may find it challenging to evaluate these Indigenous interests against other statutory mandates or congressional and administrative priorities.¹⁷⁷ For example, in the past, FS has stated that laws such as the General Mining Law of 1872 limit the agency's discretion to deny permits for mineral exploration, "making it hard—perhaps impossible—to protect Native American Sacred Sites in the way the Tribes prefer."¹⁷⁸ Some have noted that the Wilderness Act of 1964, under which lands designated as wilderness are generally closed to motorized vehicles,¹⁷⁹ can create obstacles to Indigenous communities' engagement in traditional religious practices (e.g., for elders or disabled individuals, or for those engaged in hunting and gathering in designated wilderness).¹⁸⁰ In the case of Oak Flat, Congress required FS to transfer the land in question "not later than 60 days after" the publication of an environmental impact statement prepared pursuant to NEPA.¹⁸¹

Some have called for more expansive legislation to address sacred site protection and access.¹⁸² For example, some stakeholders recommend amending existing procedural statutes, such as NHPA and NEPA, to provide additional protections for sacred sites.¹⁸³ Proponents contend that because such laws do not mandate agencies to avoid actions that could harm sacred sites, they are insufficient in protecting such resources.¹⁸⁴ Other scholars and stakeholders have advocated for amending AIRFA to give a specific cause of action for Indigenous groups attempting to protect sacred sites.¹⁸⁵ Congress has considered legislation that would establish certain protections for Indigenous sacred sites. For example, in the 117^th Congress, the Tribal Cultural Protection Act (H.R. 8109 and S. 4423) would have established a Tribal Cultural Areas System made up of culturally significant sites on federal lands.¹⁸⁶ Other site-specific legislation to provide Indigenous sacred site access and protection has also been considered in past Congresses.¹⁸⁷ For example, the Katimiîn and Ameekyáaraam Sacred Lands Act (P.L. 117-353) addressed concerns about the ability of Karuk tribal citizens to conduct certain religious and cultural ceremonies by transferring 1,031 acres of FS lands located on the ancestral territory of the Karuk Tribe into trust, allowing for "traditional and customary uses for the benefit of the Karuk Tribe."¹⁸⁸ Similarly, Congress directed the Secretary of the Interior to provide access to certain portions of the El Malpais National Monument for "traditional cultural and religious purposes" while authorizing temporary closures to the general public "to protect the privacy of religious activities in such areas by Indian people."¹⁸⁹ In the 117^th Congress, the proposed Grand Canyon Protection Act (S. 387) would have prevented mining within a part of the Grand Canyon that many local Tribes consider sacred. Congress also included provisions in the 2008 farm bill that permit the temporary closure of portions of national forests for tribal traditional cultural and religious purposes,¹⁹⁰ and the provision of trees, parts of trees, or forest products (free of charge) to Tribes for traditional and cultural purposes.¹⁹¹

Some Members of Congress and stakeholders have opposed new authorities to protect Indigenous sacred sites for various reasons. For example, some have questioned the need for new authorities, arguing that existing statutes already provide for the consideration of sacred site protection and access.¹⁹² Others have posited that the current management and consultation requirements are appropriately flexible and provide preferable protections for sacred sites than what might be pursued through judicial or legislative approaches.¹⁹³ Some Members and stakeholders have cautioned that applying special designations to federal lands with Indigenous sacred sites could put sacred sites at risk, in that land use designations in sensitive areas may increase visitation and attention without additional funding needed for protection, such as enhanced law enforcement.¹⁹⁴ Other Members have objected to prioritizing the protection of sacred sites above other authorized uses of federal lands, such as outdoor recreation, energy development, timber production, and grazing.¹⁹⁵ Further, some Members and some Indigenous groups have posited that prioritizing sacred site protection over other revenue-producing land uses could limit Indigenous economic opportunities.¹⁹⁶ Proponents of additional protections for Indigenous sacred sites also have acknowledged potential difficulties with establishing new federal land designations for Indigenous sacred sites due, in part, to concerns around potential confidentiality issues, agency and tribal capacity limitations, and the ability to define and limit what constitutes a sacred site.¹⁹⁷

Agency and Tribal Capacity¹⁹⁸

Stakeholders have raised concerns about agency and tribal capacity to address sacred site protection and access. Issues include staffing needs for federal agencies—as well as Tribes, NHOs, and Alaska Native groups—to adequately engage in Section 106 and NEPA consultations, budgetary limitations, and institutional training around sacred site management and protection. On the agency side, federal agencies have reported that staff engaging with Indigenous entities as part of government-to-government consultation often have limited understanding of the legal obligation agencies have to Indigenous groups.¹⁹⁹ For instance, staff may be undertaking such activities as a collateral duty (meaning the employees have other primary job assignments that may not include tribal consultation). Some Tribes have recommended requirements that federal employees and contractors receive mandatory training on tribal relations and the importance of sacred sites.²⁰⁰ In particular, some Tribes have requested that training focus on how to handle sensitive Indigenous knowledge and cultural information.²⁰¹

Similarly, some stakeholders have expressed a need for technical assistance, funding, and support for Indigenous peoples, as well as compensation for Indigenous expertise.²⁰² Indigenous groups and other stakeholders often have noted that funding and capacity constraints limit Tribes, NHOs, Alaska Natives groups, and others' ability to effectively engage in the Section 106 and NEPA consultation processes.²⁰³ Some federal agency staff have cited limitations in prioritizing available agency funding for these purposes as a barrier to providing such compensation and assistance.²⁰⁴

Native Hawaiians may face particular capacity challenges in protecting sacred sites for several reasons. Native Hawaiians are not federally recognized, which means they do not have THPOs or access to certain federal funding opportunities available to federally recognized Tribes. In addition, Native Hawaiians are highly diverse: there are over 100 NHOs that may participate in NHPA Section 106 review and other federal processes.²⁰⁵ Coordinating federal consultation with NHOs may be complex because NHOs may attach religious and cultural significance to a historic property on ancestral lands on different islands from those on which the NHO currently operates or resides.²⁰⁶ In addition, unlike many federally recognized Tribes, NHOs typically do not employ full-time staff, making it challenging for representatives to regularly participate in consultation meetings.²⁰⁷ Recognizing these issues, ACHP noted that federal agencies "should reasonably expect to pay for work carried out" by NHOs as part of the Section 106 process.²⁰⁸

Unique capacity and resource challenges also may arise with regard to Indigenous sacred site considerations in Alaska. There are more than 220 federally recognized Tribes in Alaska, resulting in a diverse cultural landscape with differences in dialect, cultural activities, and traditional ways of life.²⁰⁹ In addition, Alaska's large size can complicate coordination and participation in federal consultation efforts, exacerbating capacity issues facing Alaska Tribes and agencies operating within the state. Federal agencies are also generally required to coordinate and consult with Alaska Native Villages and Village and Regional Corporations, in addition to relevant Tribes in the state. The Alaska Native Claims Settlement Act (ANCSA; 43 U.S.C. §§1601 et seq.) divided the state of Alaska into 12 geographic regions and authorized the creation of Village and Regional Alaska Native Corporations (ANCs), which are for-profit corporations that may own and manage resources for the benefit of their Alaska Native shareholders.²¹⁰ ANCs sometimes have focused on protecting sacred and historical sites and artifacts through the NHPA Section 106 process. For example, one ANC helps protect more than 80 sacred historical sites located throughout the region on behalf of Tribes that are the traditional owners of the sites, which include historical burial grounds, forts, petroglyphs, and villages.²¹¹

To address these capacity issues, Congress has, at times, provided funding to agencies to help Tribes and other Indigenous entities participate in consultations about federal actions that could impact tribal resources, including sacred sites. For example, Congress typically appropriates annual funding to NPS for THPOs to help pay expenses relating to federal-tribal consultation on projects on or affecting tribal lands and resources.²¹² However, Tribes have largely viewed the appropriations as insufficient, in part, because annual funding has not kept up with the increase in the number of approved THPOs. For example, in 1996, 12 Tribes were approved by the Secretary of the Interior and NPS to assume the responsibilities of a THPO on tribal lands, compared with over 200 in 2022.²¹³

Some laws promote economic development based on, and in support of, Indigenous cultural heritage. For example, the Native American Tourism and Improving Visitor Experience Act (NATIVE Act; 25 U.S.C. §§4351 et seq.) directed federal agencies to provide grants, loans, and technical assistance to Tribes, ANCs, tribal organizations, and NHOs to (1) spur important infrastructure development, (2) increase tourism capacity, and (3) elevate living standards in Native American communities. The NATIVE Act may build financial and technical capacity for Indigenous communities interested in sharing their cultural heritage, including information about their sacred sites. For example, FS has used NATIVE Act funding to support projects promoting the preservation of sacred sites.²¹⁴ In 2021, FS signed a five-year agreement with the United Keetoowah Band of Cherokee (UKB) enabling the UKB to plan and organize a tour of important cultural and sacred sites on National Forest lands in Tennessee and North Carolina.²¹⁵

Some stakeholders also have called for federal assistance to promote tribal capacity to directly manage sacred sites through acquisition of culturally significant lands. For example, some groups have advocated for legislation to allow Tribes direct access to funding awarded through the Land and Water Conservation Fund (LWCF).²¹⁶ LWCF funding can be used to support federal land acquisition, outdoor recreation grants to states, and other programs.²¹⁷ However, Tribes must partner with, or apply through, states to receive such funding.²¹⁸ The Biden Administration requested additional funding in FY2024 and FY2025 for the creation of a new program that would primarily provide funding to Tribes to acquire lands or easements "for the purposes of protecting and conserving natural resource areas that may also be of cultural importance" or have recreational benefits.²¹⁹ The FY2024 budget justification requested $12 million in discretionary unobligated LWCF funds, whereas the FY2025 budget justification requested $8 million for such purposes. Thus far, Congress has declined to act on these requests. Legislation was introduced in the 118^th Congress that would have added "Indian Tribe, urban Indian organization, or Alaska Native or Native Hawaiian community or organization" as eligible entities to apply for and directly receive funding from certain discretionary LWCF grant programs; however, Congress took no additional action.²²⁰ Land acquisition funding provided through programs such as the LWCF may be unappealing to some Indigenous groups looking to protect culturally significant places or sacred sites. In general, lands developed or acquired with LWCF grants must be open for public access and use—a requirement that may be at odds with the reclamation or preservation of a sacred or ceremonial site.

Footnotes