The U.S. Department of Agriculture (USDA) has released a Draft Report to the Secretary of Agriculture captioned “USDA’s Office of Tribal Relations and Forest Service Policy and Procedures Review: Indian Sacred Sites” (July 2011). The availability of the Draft Report was announced in a “Dear Tribal Leader” letter dated July 15, 2011 (attached), which enclosed a copy of the Draft Report on a CD. The Draft Report is available on the website of the USDA Office of Tribal Relations, www.fs.fed.us/spf/tribalrelations/sacredsites. The letter also explains how to request a hard copy of the Draft Report. The USDA has provided the Draft Report to Tribes “for consultation and feedback on its contents, and to enhance the recommendations.” The Dear Tribal Leader letter says that the deadline for filing comments is November 14, 2011. The USDA has also published a notice in the FEDERAL REGISTER announcing the availability of the Draft Report, which sets October 4 as the deadline for public comments. 76 Fed. Reg. 47538 (Aug. 5, 2011).
OVERVIEW OF THE DRAFT REPORT
The USDA announced its review of policies and procedures affecting sacred sites on National Forest lands in a letter dated November 3, 2010. In developing the Draft Report, the USDA held more than 50 listening sessions at various locations across the country, many face-to-face and others by telephone. Secretary of Agriculture Thomas J. Vilsack (in a letter reproduced in Appendix I of the Report) had previously directed the USDA’s Office of Tribal Relations and Forest Service to convene:
“consultative sessions with Native American leaders … about how we can do a better job addressing sacred site issues while simultaneously balancing pursuit of the agency’s mission to deliver forest goods and services for current and future generations. We need to examine the effectiveness of existing laws and regulations in ensuring a consistent level of sacred site protection that is more acceptable to tribes.”
The Draft Report includes sections explaining the methodology used in preparation; reporting what the USDA heard in the numerous listening sessions; presenting recommendations; summarizing the “legal landscape” for protection of sacred sites; and describing the planned “next steps.”
The USDA acknowledges that, as an agency, is not very well informed about Native American sacred sites, and that it needs Native American people to help educate it. The Draft Report acknowledges the historical trauma that Native peoples have suffered and recognizes that access to sacred sites is “an important component to necessary healing.” This section discusses the nature of the challenges that arise in trying to resolve conflicts between Native American concerns regarding sacred sites and the Forest Service’s mission to manage the National Forest System for “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” While expressing a commitment to protect sacred sites as part of a broader commitment to restore the National Forests and manage them within the multiple-use mission, the Draft Report acknowledges that this approach has not always achieved an acceptable balance.
The Draft Report describes the methods that USDA used in gathering information and summarizes the main themes that USDA heard in the listening sessions, including the concern that, in the balancing process conducted by the Forest Service, the value placed on recreational or resource extractive activities usually carries more weight than traditional and cultural values. Another theme is recognition of the need for better relationships and communications, including the development of agreements between tribes and the Forest Service. The USDA acknowledged a great deal of tribal interest in agreements that would provide for “co-management.” While stating that the Forest Service “cannot delegate decision-making authority” and recognizing that co-management “means different things to different people,” USDA nevertheless “commits to exploring partnership approaches and agreements … that enable the agency and Tribes to achieve shared management goals.”
The Draft Report recognizes that the Forest Service has discretion to use existing authority to protect sacred sites, and that it should increase its use of this discretion, but that, in order to do so it must have a better understanding of what is sacred to tribes. The Draft Report acknowledges that the definition of sacred sites in Executive Order 13007, Indian Sacred Sites, is too narrow and does not accurately reflect what Native people consider sacred, and recommends using a broader concept of “Sacred Places.”
The Draft Report also acknowledges having heard tribal concerns about access to sites (ensuring access for traditional practitioners, controlling access by the general public), protection of confidential information from disclosure, respect for traditional ecological knowledge, accommodations for non-federally recognized tribes, and issues relating to law enforcement.
The Recommendations in the Draft Report are presented in three main categories: “Relationships/Communications;” “Direction/Policy;” and “On-the-Ground Actions.” In the category of “Relationships/Communications,” the Draft Report recommends that Forest Service field offices engage in regularly scheduled consultation sessions with tribes, documenting commitments in a Memorandum of Understanding (MOU). In the category of “Direction/Policy,” one of the key recommendations is to:
“Expeditiously review and revise USDA and Forest Service directives, incorporating Sacred Sites protection. Collaboratively prioritize directives for revision that will have the greatest impact.”
Another specific recommendation calls for revising the definition of “Sacred Sites” in Executive Order 13007 and adopting the broader concept of “Sacred Places.” There is also a set of recommendations about confidentiality, largely focused on language in the 2008 Farm Bill (see Appendix C), with the suggestion that this language be strengthened in the 2012 Farm Bill. The Draft Report also recommends that, in the confidentiality provision of Executive Order 13007, the wording “Where appropriate” be replaced with “to the maximum extent permitted by law.” This category also makes a set of recommendations to deal with laws and policies that are beyond the control of USDA, including the 1872 Mining Law, oil and gas leasing decisions, and decisions by the Federal Energy Regulatory Commission regarding hydroelectric licenses and electric transmission corridors. There are also some recommendations for incorporating sacred sites concerns into resource management plans for individual forest and grassland units.
In the category of “On-the-Ground Actions,” the Draft Report recommends that Forest Service personnel work directly with tribes, using existing authority, to engage in a range of activities that could contribute to better protection of Sacred Sites and ensure access to them by traditional practitioners.
The Draft Report summarizes the “legal landscape,” covering a range of topics, including the First Amendment to the U.S. Constitution, federal statutes that provide some support for sacred site protection, and other sources of legal authority. This discussion includes the American Indian Religious Freedom Act (AIRFA), Archaeological Resources Protection Act (ARPA), Native American Graves Protection and Repatriation Act (NAGPRA), Religious Freedom Restoration Act (RFRA), National Historic Preservation Act (NHPA), and the 2008 Farm Bill. The 2008 Farm Bill includes provisions authorizing reburial of human remains and cultural items on National Forest lands, temporary closure of National Forest lands for traditional and cultural purposes, free use of forest products for traditional and cultural purposes, and nondisclosure under the Freedom of Information Act. Under the heading “Other Authorities,” the Draft Report discusses Executive Order 13007 (reproduced in Appendix B), the United Nations Declaration on the Rights of Indigenous Peoples (excerpts reproduced in Appendix G), the federal trust responsibility, and the Forest Service’s land management planning processes (including an excerpt from the Forest Service Manual on “Cooperative Land Management and Planning with Tribes”). Appendix F presents summaries of selected federal court decisions.
The Draft Report reflects a substantial level of effort by USDA and the Forest Service to fulfill the Secretary’s mandate to consult with tribes about how to do “a better job addressing sacred site issues” and to “examine the effectiveness of existing laws and regulations in ensuring a consistent level of sacred site protection that is more acceptable to tribes.” Over the next three months, tribal leaders and advocates have the opportunity to thoroughly review the Draft Report and comment to USDA on its recommendations, to offer additional recommendations, and to identify the priorities for implementation.
The review period also provides an opportunity to recommend corrections and clarifications in the “Legal Landscape” section and Appendices. For example, the description of the National Historic Preservation Act (NHPA) in Appendix G says, “Tribes must be given an opportunity to participate as interested persons when an undertaking may affect properties of historic value to an Indian Tribe not on tribal lands.” (Emphasis added.) The term “interested persons” was used in the regulations implementing NHPA section 106 prior to the revision of the regulations to reflect the NHPA Amendments of 1992, but that term is no longer used in the current version of the regulations. See 36 C.F.R. Part 800. Rather, tribes have a statutory right to be “consulting parties.” (The Draft Report, at page 21, takes note of this statutory right.) We also noted that, in its discussion of agreements between the Forest Service and tribes (pages 8 and 14), the Draft Report does not include the kinds of agreements that typically conclude the NHPA section 106 process, i.e., Memoranda of Agreement and Programmatic Agreements.
Nor does the discussion of confidentiality (page 10) refer to NHPA section 304, which authorizes withholding information from disclosure. It appears that in response to statements from tribal representatives that “Sacred Sites issues are seldom about archeology and historic preservation” (page 11), the Draft Report has not fully explored the ways in which historic preservation can support protection of Sacred Sites.
If you would like further information regarding the Draft Report, or assistance in preparing comments, please contact us.