Sacred Sites: Cultural Resources and Land Management in the West

Although consideration of historic resources has always been part of the calculus of public land natural resource developers,1 these historic resources have infrequently been religious in character.2 Developments in this decade in the courts, Congress, and the White House have begun to fundamentally change the way federal agencies and private developers consider and, to an increasing extent, accommodate Indian cultural resources on, and off, the public lands.3 To be sure, no federal law exists that provides Indians with a sacred sites “veto” of natural resource development off-reservation,4 yet Indian tribes, either alone or in concert with environmental [10-3] organizations have, in some notable instances, been successful in delaying or stopping natural resource development on lands significant to a tribe's religious or cultural interests.5 And, this administration has escalated policy development that would allow greater accommodation by federal agencies of Indian religious needs on public land. This paper will explore this still-developing policy area by first looking at the body of federal laws that provide the legal foundation for consideration of Indian religious and cultural resources. Second, the paper will examine the interplay between Congress and the courts in the area of First Amendment protections for the free exercise of Indian religions. Third, the paper will ex