October 23, 2021

Bazar Lead

Just Law & Legal

Indigenous people, tribes face barriers to protect sacred spaces in US

PHOENIX – Tourists speeding toward Grand Canyon National Park rarely notice the rocky protuberance that juts above the flat expanse of Arizona’s Coconino Plateau.

But to the Havasu ‘Baaja, known to the world as the Havasupai Tribe or “People of the Blue-Green Water,” the isolated hill forms the center of their lands and spiritual life.

Red Butte (Wii’I Gdwiisa or “Clenched Fist Mountain”) is the abdomen of Mother Earth. Mat Taav Tiivjunmdva, a meadow about 3 miles north of the distinctive mountain close to the Canyon’s South Rim, is her navel.

But Red Butte and Mat Taav Tiivjunmdva are part of the Kaibab National Forest and do not lie within the trust land borders of the Havasupai, who were evicted from Grand Canyon National Park in 1919. That means a federal agency and not the Havasupai control the land, deciding who uses it and how. It means the Havasupai must argue their interests alongside other public land users.

And often it means someone else is allowed to use the land and, in the eyes of the Havasupai, desecrate it.

Native peoples have always regarded certain places, like mountains, springs, particular groves of trees, rock formations or petroglyph sites as sacred spaces. These sites serve as churches, much like synagogues, mosques, temples or other structures serve Christians, Jews, Muslims, Hindus and other religious communities.

But like Red Butte and Mat Taav Tiivjunmdva, many of these spaces lie outside of tribal trust land borders, often on public lands. Some of the most well-known places are in Arizona and the southern Colorado River Valley.

Federal laws meant to protect these spaces or Native American religious practices, often come up short. Some legal experts say the federal government seems to practice a double standard when it comes to upholding the religious rights of Native peoples.

Tribes must deal with a revolving door of federal officials and opposition by stakeholders like recreation companies or extraction firms. They also face a lack of knowledge by the public about these places and why Indigenous peoples fight to keep them from harm, or at least further harm.


prevent the mine from further development. In one case, the 9th Circuit Court of Appeals determined that because Red Butte had not been designated as a “historic property” eligible for inclusion on the National Register of Historic Places until 2010, the Forest Service did not have to consider the site when it conducted an environmental impact study and tribal consultation in 1986.

The tribe said its only hope to prevent any other mines from opening is a mining ban on land near the Canyon, a measure that passed the U.S. House of Representatives in February and awaits Senate action.

Fydel Rising Sun (center) and others protest mining at Canyon Mine on Oct. 6, 2018, during the Havasupai Tribe’s Intertribal Spiritual Gathering.
Mark Henle/The Republic

But the mine near Red Butte would not close because it would predate the legislation.

It’s that sort of bureaucratic obstacle Native peoples continue to fight across Arizona and the Southwest. Their long-held spiritual ties to the land have been broken by laws, redrawn boundaries and the regulations that open public lands to profitable uses.

Not far from Red Butte, near Flagstaff, Arizona, the San Francisco Peaks have been the center of conflicts over reclaimed-wastewater use on a peak known as the home of the Hopi katsinam, the holy people who bring life-giving rain to the three mesas of the Hopi among other activities. More than a dozen tribes consider the Peaks sacred.

South Mountain in Phoenix, part of the nation’s second-largest urban park, is a sacred space to O’odham and Pee Posh peoples, yet a spur of the peak was demolished for freeway construction.

Mount Graham in eastern Arizona was lost to Apache peoples at the stroke of a presidential pen, and severely damaged by decades of logging, recreation and a huge observatory.

Oak Flat, near Superior, Arizona, is under sentence of obliteration despite being a vitally important sacred place to Apaches.

The Blythe Intaglios, some of the largest geoglyphs in the U.S., hold some protection, but others in the area are threatened by vandalism or unintentional destruction.

Tribes have tried to preserve these spaces, but they have lost court cases and administrative decisions, their spiritual claims pushed aside by the law.

And over time, these places held sacred by Indigenous peoples – from remote mountains to a Phoenix city park – have become disputed spaces.

South Mountain

After a long battle, the South Mountain freeway was completed despite protests from tribal members who argued the project would destroy the sacred site.
After a long battle, the South Mountain freeway was completed despite protests from tribal members who argued the project would destroy the sacred site.
After a long battle, the South Mountain freeway was completed despite protests from tribal members who argued the project would destroy the sacred site.
Cheryl Evans/The Arizona Republic; Michael Chow, Emmanuel Lozano/The Republic

The federal government’s philosophy of asserting moral and religious superiority over Native peoples may date back to a directive issued by a 15th-century pope.

Steven Newcomb, Shawnee and Lenape, has studied how international law affects U.S. laws that apply to Indigenous nations and peoples for nearly 40 years. His research revealed that, in 1493, the issuance of a papal bull, or decree, bestowed authority over the Western Hemisphere on Christian rulers.

That decree influenced how the U.S. regards Christianity as a superior religion, said Newcomb, author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery.” U.S. Supreme Court Chief Justice John Marshall referred to the “Doctrine of Discovery” in at least one of the three decisions he wrote in the early 19th century known as the Marshall Trilogy that laid the foundation of federal Indian law.

Marshall wrote that in 1496, King Henry VII of Great Britain commissioned explorer John Cabot to discover countries then unknown to Christians and claim them in the king’s name. He asserted a right to take possession of the United States, “notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”

“The distinction that the chief justice made is between Christian people and Natives who are ‘heathens,'” Newcomb said. “What’s being used against Native nations is the Bible and Christianity, and the idea that the chosen people have been chosen to take over the lands that God bequeathed to them as an everlasting possession or inheritance.”

Downtown Superior, Arizona, is near Oak Flat, where Apache Stronghold recently sued the U.S. Forest Service to stop the federal government from clearing the way for a copper mine on the land held sacred by the Apache and other Arizona tribes.

Downtown Superior, Arizona, is near Oak Flat, where Apache Stronghold recently sued the U.S. Forest Service to stop the federal government from clearing the way for a copper mine on the land held sacred by the Apache and other Arizona tribes.
Cheryl Evans/The Republic

From 1883 until 1934, the U.S. officially forbade Native American religious practices through the “Code of Indian Offenses.” The document was intended to obliterate Native cultures by halting religious and cultural practices.

Retired law professor Robert N. Clinton noted in a 2008 blog post that medicine practices, Native dances, giving marriage gifts to the bride’s family, traditional reciprocal gift-giving and other customs were all made punishable offenses, sometimes by denying food for violations, other times with jail terms.

Commissioner of Indian Affairs John Collier took a more progressive approach to Native issues. He issued a 1934 circular ending the practice: “The cultural liberty of Indians is in all respects to be considered equal to that of any non-Indian group.”

Congress passed the American Indian Religious Freedom Act of 1978, known as AIRFA. The legislation sought to reverse longtime federal policies that prohibited Indigenous peoples from practicing their religions.

This policy statement established federal policies 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.” The legislation also called for access to cultural sites, use and possession of sacred objects, and the freedom to worship.

The Religious Freedom Restoration Act of 1993 prohibits state or federal governments from placing substantial burdens on a person’s religious exercise except under certain conditions.

Other federal laws govern how agencies make decisions about projects on public lands and protect Indigenous cultural and religious spaces, though all of these laws have shortcomings.

If the uranium mine leaches tailings into the local groundwater supply they could contaminate the Havasupai Falls with radiation making them unusable.

If the uranium mine leaches tailings into the local groundwater supply they could contaminate the Havasupai Falls with radiation making them unusable.
Courtesy of Jonathan Irish

Marc Fink, a senior attorney with the Center for Biological Diversity, said laws like National Environmental Policy Act, or NEPA, give the public a chance to participate in public land decision making, allow for other agencies like the Environmental Protection Agency, the U.S. Fish and Wildlife Service and state agencies to weigh in on projects, and create the opportunity for public land agencies to “look before they leap” into projects that may have an impact on ecologies.

But Fink said the courts have made clear that NEPA is a procedural law, not an enforcement act. This means federal agencies don’t have to heed the reports they generate when issuing a final decision on a project known as a Record of Decision, except to comply with enforceable laws like the Endangered Species Act or the Clean Water Act.

Although these laws contain some provisions for private and state lands, NEPA and the National Historic Preservation Act of 1966, or NHPA, extend protections of cultural heritage sites, ancestral burials and landscapes primarily to public lands, said Shannon O’Loughlin, chief executive and attorney at the Association on American Indian Affairs. 

She said this situation creates a “checkerboard” of cultural heritage protection between federal land, other public lands and private land.

Canyon Mine, a uranium mine located 6 miles southeast of Tusayan on the Kaibab National Forest, on Oct. 5, 2018.

Canyon Mine, a uranium mine located 6 miles southeast of Tusayan on the Kaibab National Forest, on Oct. 5, 2018.
Mark Henle/The Republic

“Our cultural heritage and sacred places should be treated with that same kind of protection holistically all across the country, not just on federal land,” she said.

In some Midwestern states or along the Mississippi River, where mound-building cultures held sway for centuries before Europeans arrived, O’Loughlin said, non-Native people feel they have carte blanche to dig up and loot sacred places.

“Those states have treated those sites like they are their own cultural heritage instead of the Indigenous peoples around them,” she said.

Tribal consultation, which is mandated in all areas of federal land project proposals, is a sore subject for tribes.

“NEPA and NHPA only require that consultation processes be followed,” O’Loughlin said. “To many, consultation is just a procedural check-off box.”

And, she said, effective consultation depends on personnel on site at any particular time. “It’s dependent on who’s staffing the agency,” O’Loughlin said. 

That gives federal land managers great discretion in land and resource use and protection, said John Welch, a professor at Simon Fraser University and head of landscape and site protection programs at Archaeology Southwest. 

“Sacred sites lack specific and enforceable protections,” he said.  

The Arizona Republic, part of the USA TODAY Network, talked with many tribal leaders and tribal organizations who almost unanimously agreed with O’Loughlin’s and Welch’s assessments.

In one example, The Republic obtained a letter from the Pueblo of Zuni to President Joe Biden regarding an executive order directing the advancement of racial equity and support for underserved communities.

“Without directly, foundationally, and restoratively confronting and continually materially addressing and redressing geographical injustices of governmental and colonial-settler actions, programs, and procedures that have occurred – and continue to occur – over space and time, the Biden-Harris Administration … cannot sincerely, meaningfully, honestly, or effectively advance any reasonable levels or forms of equity and support for Native peoples,” said the letter, signed by Zuni Governor Val R. Panteah.

“On the contrary,” the letter said, “the Administration will simply perpetuate and reproduce ongoing injustices of ethnically cleansing Native peoples from Native lands.”

Agencies frequently make only cursory consultations or, in the worst cases, claim that simply sending a notification letter to the tribe fulfills consultation protocols. Others reach out to a tribal community only at the very end of a project, which gives the tribe no opportunity to participate in discussions or to help develop the project in a way all parties can live with.  

O’Loughlin, a citizen of the Choctaw Nation, contrasted cultural and sacred site protection with clean air and water legislation or endangered species protection, which are regulated nationwide and not just on public lands.

“If an eagle dies and falls on a piece of property out here, I have absolutely no right to that eagle,” O’Loughlin said. “I can’t take a part of it, I can’t use it, and can’t make something out of it. I have to call the feds.”

She’s referring to federal laws and regulations that protect eagles and their parts. Even as a member of a federally recognized tribe that has legal rights to own and use eagle feathers or eagle parts, O’Loughlin still must abide by these laws.   

She said that because the Native American Graves Protection and Repatriation Act, or NAGPRA, doesn’t require that burials be left in place, the government’s stance seems to be, “We just have to dig it up and pay to have the ancestors stored in a museum.”

The result: “There is nothing in federal law that’s required for a site to be sacred,” O’Loughlin said. “There’s no legal requirement to save a sacred place.”

Blythe Intaglios

The Blythe Intaglios were created on the desert floor long ago by native people for an unknown reason. The tribes view this land as sacred and want to preserve it for future generations.
The Blythe Intaglios were created on the desert floor long ago by native people for an unknown reason. The tribes view this land as sacred and want to preserve it for future generations.
The Blythe Intaglios were created on the desert floor long ago by native people for an unknown reason. The tribes view this land as sacred and want to preserve it for future generations.
Michael Chow, Thomas Hawthorne/The Republic; Cheryl Evans/The Republic

The damage to Indigenous cultures from destroying sacred sites can be catastrophic, said David Martinez, an associate professor of American Indian Studies at Arizona State University. 

“If you put a road through a sacred site, then you put something that doesn’t respect that space as belonging to the spirits that dwell there,” he said. “One of the most immediate consequences is that part of your culture is likely to perish.” 

Native cultural rights advocates point out that the land itself is what gives a place its sacred significance. If those sites are altered or destroyed, they say, the spirituality they hold disappears.  


Harvard Law Review detailing those laws’ shortcomings.

“The callous destruction of Indigenous sacred sites is not just a troubling relic of the past,” they wrote. As recently as 2020, the U.S. blew up Apache burial sites to clear the land for the border wall. In 2018, a federal court ruled that a Native burial ground and stone altar still used for religious ceremonies could be bulldozed “merely to expand a road.”

Machines blow artificial snow over Arizona Snowbowl on the mountain's opening day in Flagstaff on Nov. 22, 2019.

Machines blow artificial snow over Arizona Snowbowl on the mountain’s opening day in Flagstaff on Nov. 22, 2019.
Thomas Hawthorne/The Republic

The scholars wrote that the Religious Freedom Restoration Act, the Free Exercise Clause in the First Amendment, and other such legal protections have been eviscerated by the courts when it comes to Native religion, stripping them of their ability to protect sacred sites.

Lyng v. Northwest Indian Cemetery, a case that’s taught in many Indian law classes as one of the chief culprits in weakening the American Indian Religious Freedom Act, set the stage for other Native sacred site cases to come.

In 1988, the U.S. Supreme Court ruled against Northern California tribes seeking to prevent a logging road from irreparably damaging sacred sites, even after the environmental impact study recommended against the U.S. Forest Service constructing the road.

“Even assuming that the Government’s actions here will virtually destroy the Indians’ ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims,” Justice Sandra Day O’Connor wrote on behalf of the majority. 

The court also wrote that the federal government has the right to use its land however it decides, and that if the government does not force a tribe or tribal member to forgo a government benefit such as Social Security or other benefit to practice their religion, there is no substantial burden on those religious practices.  

“When the government has created an obstacle that physically impedes the ability of Christian worshippers to access their sacred spaces, we view this as a particularly egregious burden on religious exercise,” Barclay, a non-Indian, and Steele, who is a citizen of the Seneca Nation of Indians of New York, wrote. “But when the government desecrates, destroys, and removes access to Indigenous sacred sites – making previous religious ceremonies physically impossible at those locations – the coercion evaporates.”

Barclay and Steele agreed with O’Loughlin’s assessment that protected species often receive more protections than do Indigenous peoples for their religious practices on government lands.  

In recent years, several sacred and cultural sites in Arizona and southern California have been threatened, or damaged. Tribal cultural practitioners and advocates say they have been spiritually, chemically or physically contaminated, resulting in cultural and religious losses, sometimes forever.  

“The belief of many communities is that the development has disrupted the communication between the people and the spirit,” Martinez said. 

And if ceremonies cease to take place at that site, he said, or if medicine people or other cultural practitioners quit practicing their religion, the cultures suffer from neglect, and can eventually perish. 

Oak Flat

Resolution Copper wants to extract the copper from Oak Flat, a campground in the Tonto National Forest. The land is considered sacred by the Apache and other Arizona tribes, and a group is suing to stop the land deal.
Resolution Copper wants to extract the copper from Oak Flat, a campground in the Tonto National Forest. The land is considered sacred by the Apache and other Arizona tribes, and a group is suing to stop the land deal.
Resolution Copper wants to extract the copper from Oak Flat, a campground in the Tonto National Forest. The land is considered sacred by the Apache and other Arizona tribes, and a group is suing to stop the land deal.
Michael Chow, Thomas Hawthorne/The Republic; Cheryl Evans/The Republic

Sacred lands still face new threats. One development that concerns the Mojave as well as the Quechan, the Chemehuevi and other southern desert peoples is the expansion of solar plants.

“With the encroachment of solar,” Colorado River Indian Tribes Chairwoman Amelia Flores said, “we have tried to establish a relationship with the BLM, since it controls those lands that hold sites that our ancestors carved out, whether it be the petroglyphs, the rock shrines or even the trails.”

About 10 million acres of Bureau of Land Management-controlled lands in the Mojave and Sonoran deserts in California fall under the Desert Renewable Energy Conservation Plan.

Developed by federal and state agencies, the plan, which encompasses a total of 22.6 million acres of land, including federal and nonfederal lands, acknowledges the rich cultural and tribal heritage of southeastern California as well as a diverse range of plants and animals like desert tortoises, which are threatened. The plan seeks to protect sensitive cultural and ecological sites while allowing for solar plants to sprout like black lakes on the desert floor in selected places. 

Hikers on Telegraph Pass Trailhead walk pass petroglyphs created by the Huhugam at South Mountain Park in Phoenix.

Hikers on Telegraph Pass Trailhead walk pass petroglyphs created by the Huhugam at South Mountain Park in Phoenix.
Cheryl Evans/The Republic

But tribes are still concerned that the millennial-long evidence of their existence in the harsh lands will disappear underneath bulldozers and pavement. Environmental groups share that concern, particularly after the Trump administration attempted to amend the plan to allow for faster approvals of renewable energy projects and broadband infrastructure. The Biden administration rescinded that move in February.  

President Joe Biden has made tribal consultation and building stronger intergovernmental relations a priority. The day he took office, Biden issued a memorandum to federal agencies which he said reaffirmed the principles of the Clinton-era executive order. 

A memorandum of understanding created cross-agency protocols for sacred site protection in 2012. The original agreement was slated to expire in 2017 but was extended through 2024.   

On her first day in office in March, Interior Secretary Deb Haaland met with several Native American journalists, including a Republic reporter, about her goals in managing the U.S.’s largest agency. During the online meeting, she pledged to give tribes a greater voice in public land management.

“I want to make sure that every tribe has an opportunity to speak to me, to speak to other agencies across the federal government, and that those voices are extremely important,” she said. “I want the era where tribes have been on the back burner to be over, and I want to make sure that they have real opportunities to have a seat at the table.”

The Interior Department declined further comment for this story. 

The Forest Service “committed to ensuring a consistent level of protection for American Indian and Alaska Native sacred sites on National Forest System lands,” said an Agriculture Department spokesperson.

The agency has a strong working relationship with the Interior Department and has a goal of reviewing and updating the interagency sacred site protection memorandum of understating, the spokesperson said. The agency also wants to ensure that “tribes have a proper voice on land issues about Indian sacred sites.”