December 5, 2012, heralded two federal developments relating to the protection of sacred places. One development is a Memorandum of Understanding (MOU) REGARDING INTERAGENCY COORDINATION AND COLLABORATION FOR THE PROTECTION OF INDIAN SACRED SITES among the Advisory Council on Historic Preservation (ACHP) and four federal agencies – the Departments of Defense, Interior, Agriculture and Energy. A copy of the MOU is attached. It is also available on the ACHP website at: www.achp.gov/docs/SacredSites-MOU_121205.pdf.
The second development is that the U.S. Department of Agriculture (USDA) released the final version of its Report to the Secretary of Agriculture, USDA POLICY AND PROCEDURES REVIEW AND RECOMMENDATIONS: INDIAN SACRED SITES, available at: www.fs.fed.us/spf/tribalrelations/documents/sacredsites/SacredSitesFinalReportDec2012.pdf. The draft version of this Report was released in July 2011. (See our General Memorandum 11-093 of August 5, 2011.)
The Sacred Sites MOU. The stated purpose of the MOU is “to improve the protection of and tribal access to Indian sacred sites through enhanced and improved interdepartmental coordination and collaboration.” The MOU notes that sacred sites may be eligible for the National Register of Historic Places and that federal agencies are required to assess the effects of undertakings that they take, fund, or permit on historic properties of religious and cultural importance to tribes. While acknowledging that there are many differences in the ways in which federal agency decisions affect sacred sites, the MOU states that there are also similarities and that, because of the similarities, “consistency in policies and processes can be developed and applied.”
The MOU uses the definition of sacred site in Executive Order 13007, Indian Sacred Sites, which uses the phrase “specific, discrete, narrowly delineated location,” wording that many tribal leaders and advocates have found objectionable. The MOU does recognize, however, that sacred sites “often occur within a larger landform or are connected through features or ceremonies to other sites or a larger sacred landscape.”
The MOU sets out a list of eleven action items that the agencies agree to work together to accomplish. The agencies also agree to consult with tribes “as appropriate in developing and implementing” the listed actions. The MOU does not explicitly address how consultation with tribes will be accomplished, though several of the listed action items will obviously require collaboration with tribes, such as establishing “mechanisms for the collaborative stewardship of sacred sites with Indian tribes, such as Federal-tribal partnerships in conducting landscape level cultural geography assessments.”
The eleventh action item on the list is the establishment of a staff level inter-agency working group, which is tasked with developing an action plan for implementing the MOU and to do this within 90 days. Tribal leaders and advocates who are particularly interested in any of the listed action items may not want to wait for the action plan before providing input to the working group.
USDA Report to the Secretary of Agriculture. This Report was prepared in response to a directive from the Secretary of Agriculture to the USDA Office of Tribal Relations and the Forest Service to engage in consultation with American Indian and Alaska Native leaders about how USDA “can do a better job addressing sacred sites issues, while simultaneously balancing the pursuit of the Forest Service’s mission to deliver forest goods and services for current and future generations.”
The final version of the Report has been rather extensively revised from the draft version that was circulated in July 2010. Some of the comments from tribes and inter-tribal organizations were quite critical of the draft. Many commenters criticized the decision by the Forest Service to allow the use of treated sewage for making artificial snow at San Francisco Peaks. Some commenters criticized the draft report for shortcomings in its discussion of existing legal tools that can be used to protect sacred sites, and also criticized the Forest Service for not consistently making use of existing legal tools. The Report acknowledges such comments, and some changes were made.
The Report’s recommendations (pp. 25-29) are presented under three main headings: (I) Relationships/Communications; (II) Direction/Policy; and (III) On-the-Ground Actions. We have not as yet analyzed these recommendations in detail.
The Report does not in of itself change any of the policies of USDA or the Forest Service, but rather it may lead to specific policy changes such as those set out under the second heading. Such formal policy changes would generally be subject to additional tribal consultation and public notice. Some of the recommendations under the headings of “Relationships/Communications” and “On-the-Ground Actions” can be implemented at lower levels of the Forest Service hierarchy through collaboration between tribes and Forest Service personnel. In fact, the Report says that the process of developing the Report “is already changing” the ways that American Indian and Alaska Native people interact with the Forest Service regarding land management decisions.
Please let us know if you would like further information regarding the USDA’s report and the interagency Memorandum of Understanding on sacred sites.