Legislation to Protect Sacred Native American Federal Lands Would Jepordize Mining and Other Land-Development Activities

R. Timothy McCrum
Crowell & Moring LLP

Introduction
Native American traditional cultural values have been considered and protected in federal land management decisions by the Executive Branch and the Congress for many years. However, legislation introduced in 2002 in the 107th Congress, H.R. 5155, to protect vaguely defined “sacred sites” would have radically changed the manner in which Native American values are addressed, and would have done so in a way that would thwart the principles of multiple use which have governed federal land management policy for decades. Similar legislation was adopted by California’s General Assembly last year (SB 1828), but vetoed by California governor Gray Davis in September 2002. Yet, new legislation in California was enacted on April 7, 2003 (SB 22) designed to block a proposed gold mine on federal lands near a Native American “sacred site” by requiring compliance with new infeasible mine backfilling requirements.

These legislative efforts are virtually certain to arise again in the near future. This article focuses upon the federal bill H.R. 5155 from the 107th Congress, which may yet resurface in the 108th Congress. There are serious federal preemption issues involving California legislation as applied to federal lands which are beyond the scope of this article.

First, the proposed federal legislation would create new administrative and legal mechanisms for Native American groups and their allies to impede virtually all development activities on federal lands, including mining, oil and gas production, geothermal energy projects, wind farms, and wireless telecommunications, to name just a few. Permitting these activities on federal lands is already a protracted and burdensome process. This proposed legislation would add major new obstacles to a wide range of activities that are authorized and encouraged by other federal laws and policies. Among its novel features was a judicial review provision that authorized not only injunctive relief, but also money damages against federal agencies and agency officials.

Second, the proposed federal legislation would have allowed Native American groups to declare that any geographical area or feature is “sacred” by virtue of its alleged cultural or religious significance based on evidence which could include nothing more than oral history. Such claims would be highly subjective and virtually unverifiable. Indeed, the Interior Department under Secretary Bruce Babbitt in 2000 recognized the subjective and unverifiable nature of these allegations in the “3809” hardrock mining rulemaking which sought to establish an administrative “mine veto” power.

The “mine veto” power was determined to be beyond Interior’s legal authority in an Interior Department Solicitor’s Opinion issued by William Myers on Oct. 23, 2001, and in subsequently amended rules, but H.R. 5155 would have reopened this divisive issue for potentially all undertakings on federal lands.

Chief Justice Marshall stated long ago in Marbury v. Madison (1803) that the “government of the United States has been emphatically termed a government of laws not of men.” Yet, if a bill like H.R. 5155 were to be enacted, groups of individual Native Americans would have the authority to allege that vast portions of federal lands are sacred to their religious beliefs, and federal officials would be hard-pressed to find such subjective allegations without merit, especially where the previously proposed legislation provided that “[o]ral history shall be given no less weight than other evidence” and actions for money damages may be brought for alleged violations.

Third, if a new Native American “sacred site” veto power is created, the legislation and the resulting processes would be subject to constitutional challenge as an impermissible establishment of religion by the U.S. government and, alternatively, as an unconstitutional taking of private property without just compensation.

Several laws already in place provide for and reflect careful consideration of Native American values in federal land management. These include the National Historic Preservation Act, the Native American Graves Repatriation Act, the American Indian Religious Freedom Act, and the Archaeological Resources Protection Act, as well as many other site-specific laws establishing parks and wilderness areas, such as the 1994 California Desert Protection Act (discussed below), and the land-use planning and withdrawal authorities of the Federal Land Policy and Management Act of 1976 (FLPMA).

The Impetus for the Legislation
The controversy over the “Glamis Imperial Project,” a proposed gold mine on federal lands near Indian Pass in Imperial County, California, was part of the impetus for H.R. 5155. Yet, the alleged “sacred site” around the Project is a prime example of how such proposed legislation could be used by Native American groups to thwart a wide range of development projects across the western United States.

Background
In the late 1980s, Glamis discovered the valuable gold deposit that is now the Imperial Project in rural southeastern California, and has since spent nearly $15 million in exploration, feasibility analysis and permitting efforts to develop an open-pit gold mine that would produce an average of 130,000 ounces of gold per year and would employ over 100 individuals in high-wage jobs. This site is located in an historic gold-producing district, only seven miles from another operating gold mine and six miles from Glamis’s own Picacho gold mine that was operated for over 20 years and successfully closed and reclaimed in 2002.

After further mineral exploration in 1991, Glamis filed its original mining proposal with the Interior Department in 1994, and Native American consultations were conducted as required. Two Interior Department-sponsored cultural resource studies were undertaken to determine the nature, if any, of cultural resources at the site, the first in 1991 and the second in 1995. Not until a third cultural resource study was conducted in 1997 did assertions arise that the Imperial Project area was considered “sacred” to the Quechan tribe, which has a reservation over 10 miles to the south. Yet, the same tribal historian participated in all three studies.

In 1999, the tribal historian testified before the Advisory Council on Historic Preservation that the site is part of a broad regional trail system running from Arizona to Los Angeles and south to Mexico, encompassing hundreds of square miles. There was no claim that tribal members ever occupied the project site for any substantial length of time, nor is it a burial site. The alleged sacred site was part of an asserted “Trail of Dreams” encompassing a broad region and many hundreds of square miles in southern California. Both the Tribe’s attorney and tribal members reiterated the broad scale of concern in testimony and in letters. For example, the Quechan tribal historian testified that:

It is a region we are discussing. It just so happens that this area, Indian Pass, is right in the path of one of those regions . . . .[T]his trail follows west to the present town of Los Angeles, then down to San Juan Capistrano, then it goes into Catalina Island and trails into Mexico. To this point we don’t know how deep into Mexico we went but . . . in this creation history it tells of the Amazon Parrot. So you can imagine how far they went.

Similarly, the Quechan Tribe’s legal counsel stated in a letter to Interior’s Bureau of Land Management (BLM) that “Quechan sacred lands include the Indian Pass area and clearly encompass the proposed Imperial Project site, but also extend towards the north up to Blythe, towards the south connecting with Pilot Knob, towards the west and the Cargo Muchachos Mountains and east to the Colorado River and along portions of what is now western Arizona.” The area described thus spanned hundreds of square miles comprising a major part of southern California.

Significantly, when BLM prepared its Indian Pass Management Plan in 1987, it noted that “there is no evidence that the area is used today by contemporary Native Americans.” Glamis modified its mining plan and otherwise attempted to accommodate the Quechan concerns with mitigation, but has been told that no level of disturbance at the site is acceptable.

The Imperial Project is located on federal land that was open to mineral entry at the time Glamis acquired its mining claims. The area is within the California Desert Conservation Area and has been the subject of intense land-use planning processes, the establishment of 7.7 million acres of park and wilderness areas pursuant to the California Desert Protection Act in 1994, and the creation of large protected areas outside the Imperial Project site to protect Native American cultural values. Following all of these land designations, the Imperial Project area remained open to mineral development and Glamis proceeded with its substantial investment in development.

However, in 1998, Interior proposed a withdrawal of over 9,000 acres of BLM lands surrounding the Glamis project – a withdrawal that became effective in 2000, but was subject to valid existing rights. Then, on Jan. 17, 2001, during his final week in office, former Interior Secretary Bruce Babbitt announced that he had denied the Imperial Project based on a novel legal opinion rendered by his Solicitor. On Nov. 23, 2001, Interior Secretary Gale Norton rescinded the Babbitt denial based on the legal opinion of her Solicitor, which held that Interior had no discretionary power to veto the mine proposal. On Sept. 27, 2002, Interior released a detailed mineral examination report finding the Glamis mining claims to be valid and located in compliance with law.

The 1994 California Desert Protection Act
Ironically, the Glamis Imperial Project controversy arose in an area where the U.S. government had made a major effort to address Native American cultural concerns. The California Desert Protection Act of 1994 (CDPA) provided permanent protections to vast lands of cultural significance to Native Americans. This Act was the most significant federal public land legislation in the past two decades.

The CDPA established major new National Park lands and wilderness areas. The congressional findings reveal that the purposes for which these lands were protected are quite similar to the general concerns being raised in connection with the landscapes affected by the Glamis Imperial Project. For example, the Congress found in 1994 that the designated “desert wildlands display unique scenic, historical, archeological, environmental, ecological, wildlife, cultural, scientific, educational and recreational values . . . .”

The lands set aside for preservation by the CDPA included over 7.7 million acres, the largest wilderness and park area ever designated by Congress in the lower 48 states, encompassing an area larger than the State of Maryland. Notably, the Imperial Project is not within those designated park lands and wilderness areas. Two wilderness areas were designated near the Imperial Project specifically for Native American cultural purposes. They were the Indian Pass Wilderness, which encompasses over 34,000 acres, and the Picacho Peak Wilderness Area, which encompasses 7,700 acres.

BLM studied the wilderness areas in the CDPA extensively pursuant to the wilderness study review provisions of FLPMA. In addition, those studies were conducted by the BLM in coordination with land-use plans developed by BLM pursuant to the provisions of FLPMA dealing with the California Desert Conservation Area (CDCA). In the 1980 California Desert Conservation Area Plan, prepared pursuant to FLPMA, the BLM heavily focused on Native American cultural values and stated that “these values will be considered in all CDCA land-use and management decisions.” BLM’s stated goal was to “[a]chieve full consideration of Native American values in all land-use and management decisions.”

In the CDPA, Congress acted on BLM’s wilderness recommendations and took special steps to ensure that the designated wilderness areas of importance to Native Americans did not prevent traditional cultural and religious use of those lands. The CDPA contained another significant provision that underscores the unfairness of using sacred site allegations to block the Glamis Imperial Project. Section 103 of the Act stated: “Congress does not intend for the designation of wilderness areas in Section 102 of this title to lead to the creation of protective perimeters or buffer zones around any such wilderness area. The fact that non-wilderness activities or uses can be seen or heard from areas within a wilderness area shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.”

Through the CDPA, the Congress settled in a significant and meaningful manner longstanding disputes between competing public land users and interests. Many millions of acres of public lands were permanently set aside for preservation purposes, including Native American cultural purposes. Other areas, including the Glamis Imperial Project lands, remained classified as multiple-use public lands open to the federal mining laws and other management standards that permitted continued development.

Constitutional Concerns
Enactment of the proposed legislation to protect “sacred sites” raises serious constitutional concerns – first and foremost, because of the First Amendment’s prohibition of the establishment of a religion by the government. The express purpose of this type of legislation is to protect alleged Native American religious practices and sites.

By declaring that certain religious concerns should supersede mining and other development rights, such legislation would clearly have the effect of endorsing Native American religious beliefs. The Supreme Court has repeatedly held that the Establishment Clause requires that “government may not promote or affiliate itself with any religious doctrine or organizations . . . .” County of Allegheny v. ACLU, 492 U.S. 573, 590 (1989). Actions similar to H.R. 5155 have been found by courts to constitute unconstitutional establishments of religion. For example, in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), the Supreme Court held that Indian tribes could not require the government to prohibit timber harvesting in National Forests in order to protect areas used for religious purposes:

No disrespect for these [Indian religious] practices is implied when one notes that such beliefs could easily require de facto ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government’s property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court’s order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i.e., more than 17,000 acres) of public land.

Similarly, the U.S. Court of Appeals for the Tenth Circuit, in Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), explained that administrative action taken to aid religious conduct on public lands would violate the Establishment Clause. In Badoni, the court held that if either the purpose or primary effect of government action is “the advancement or inhibition of religion then the enactment exceeds the scope of the legislative power as circumscribed by the Constitution.”

The text of H.R. 5155 made it clear that here there was not “a secular . . .  purpose and a primary effect that neither advances nor inhibits religion.” Indeed, the proposed legislation’s exclusive or primary purpose is to have a positive influence on the religious practices it seeks to protect, and its primary effect is to give priority to the Native American religious beliefs at the expense of property interests of others.

The proposed sacred sites legislation would also raise concerns under the Fifth Amendment, which gives property owners the right to use their property without unreasonable interference, and without substantial diminution of its value, in keeping with their reasonable investment-backed expectations. For example, federal mining claims are constitutionally protected property interests, as are federal mineral leases. Yet, this legislation would take and damage individuals’ property rights without the compensation required by the Fifth Amendment. Moreover, the takings liabilities could extend far beyond mining properties and include takings claims based on a wide variety of blocked development projects.

Summary
To sum up, the legislation to protect “sacred sites” would introduce chaos into the project review process across the western United States – a process that is already highly cumbersome and expensive. Further, it would grant unprecedented power to Native American groups over virtually all major development projects on federal lands, and raise serious constitutional issues.