Indigenous people find legal, cultural barriers to protect sacred spaces off tribal lands

Tourists speeding north on Arizona State Route 64 toward Grand Canyon National Park rarely notice the rocky protuberance that juts above the flat expanse of the Coconino Plateau about 2 miles to the east.

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.

At Red Butte, the conflict has grown out of the forests and other lands surrounding the Grand Canyon, which are permeated with uranium ore that pierces the ground beneath in long, thin "breccia pipes."

The Mining Act of 1872 gives U.S. citizens the right to stake claims on federal lands. One claim led to a now-idled mine on the plateau in the vicinity of Mat Taav Tiivjunmdva.

The 750-member Havasupai tribe, the only U.S. tribe that still lives below the South Rim of the Grand Canyon, has long been concerned about the mine. They fear radioactive materials will contaminate their water supply and spoil the sparkling turquoise waters tourists seek out that provide tribal members with their principal revenue source, rendering what's left of their ancestral homeland uninhabitable.

The environmental damage could irreparably alter the ecology of the Canyon, the Havasupai say, and as it worsens, they could perish as a distinct people.

"When (the mining company) heard about our protest (against them), they approached us and offered us money and we told them, 'No, we don't want your money,'" the late Havasupai Chairman Rex Tilousi said during a 1992 hearing on uranium mining in Indigenous communities.

"Money is not worth the future, the destruction, the contamination of our home, the waters, the air, the earth, plant life, wildlife. When these things are contaminated, money will never cover the destruction which is going to happen if we let these mining companies come in and desecrate the areas we regard as very sacred."

The Havasupai and their environmentalist allies have lost at least two legal battles to 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 now 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.

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, 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, east of Superior, 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

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."

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

• The Antiquities Act of 1906 gave the president the power to create national monuments to preserve historic landmarks and structures, prehistoric assets and other objects of historic or scientific interest.
• The National Historic Preservation Act of 1966, or NHPA, oversees preservation of assets deemed important to U.S. history. One section requires federal agencies to identify and study what effect a particular project would have on buildings or sites and requires tribal consultation when archaeological sites, artifacts, and culturally and religiously important sites are involved. NHPA also requires developing alternatives that could prevent, mitigate or minimize damage to a site.
• The historic preservation act led to the establishment of the National Register of Historic Places, which is overseen by the National Park Service. Traditional cultural properties are places of cultural, religious or historic importance to a tribal community that can be included in the national register.
• The National Environmental Policy Act, or NEPA, governs how federal agencies assess environmental effects of projects, such as a mine on federal land, and to inform the public about any adverse effects that can't be avoided. The 1970 legislation also requires that agencies list alternatives that may affect a final decision.
• The Native American Graves Protection and Repatriation Act, or NAGPRA, provides protections for Native burial sites and control over Indigenous remains, funerary and sacred objects, and cultural patrimony on federal or tribal lands. The National Park Service administers the law.
• Several states have NAGPRA laws governing Native burial sites and cultural patrimony. The Arizona State Museum administers the state's ordinances on both state and private lands.
• In 1996, President Bill Clinton ordered federal land managers to, "when practicable," accommodate access to public lands by Native religious practitioners and to avoid adversely affecting the integrity of sacred sites. In 2000, Clinton also issued an order to establish meaningful consultation and collaboration with tribes.

All these laws have shortcomings.

Marc Fink, a senior attorney with the Center for Biological Diversity, said laws like 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 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.

"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 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 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 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.  

That's because once the place is obliterated or is contaminated with artifacts that Martinez said Americans regard as progress, many medicine people won't return to that site.

"They think it's contaminated," said Martinez, an enrolled member of the Gila River Indian Community who is Akimel O'odham and Hia Ced O'odham.  

Despite decades of studies conducted by federal agencies, Native religious practices that depend on specific sites are consistently given short shrift when land use decisions are made. 

The Republic examined reports covering the last decade in Arizona and found that federal environmental impact studies carefully explain the cultural damage that could occur with project alternatives and suggest mitigation strategies, such as removal of archaeological artifacts. 

Mining firms and developers argue that their projects will be environmentally sound. They promise to fund archaeological firms and hire tribal members to salvage what artifacts or plants they can before the land succumbs to excavation or paving. 

But tribal cultural practitioners and legal experts say the laws and policies meant to bolster First Amendment religious rights fall far short of protecting Native religious rights. Law professors Stephanie Hall Barclay and Michalyn Steele recently published an article in the 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."

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

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. 

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."

Native rights supporters suggest a variety of moves that can help make protecting cultural and sacred sites easier, or at least not as fraught as in past years.

Consultation early and often between tribes and agencies is one strategy that can help protect sacred sites, said O'Loughlin.

"We need to define consultation as a substantive right and manage it that way," she said.

As some Indigenous groups are doing in other nations, tribes could find resources to evaluate religious and cultural heritage sites in advance of proposed uses like mines and logging. Those evaluations would be held as confidential by the tribal government unless they're needed, O'Loughlin said.

The Zuni tribal letter called for the assessment and transformation of the National Historic Preservation Act and National Environmental Protection Act that the tribe said create structural barriers to tribal input and respect for tribal cultural values.

These and other such laws embeds the concept of tribal cultural material as archeological, which the tribe said enables governments to "de-legitimize nonarchaeological claims about the role of material culture in supporting claims to certain cultural affiliations and traditions and, thus land." 

Martinez said more Americans should recognize that cultures are worth protecting.

"I think that American society is still influenced by this archaic melting pot ideology that became popularized 100 years ago with Teddy Roosevelt's political agenda," he said. "That ideology was imposed upon Indians in the reservation system, including the whole boarding school project, to assimilate into the American melting pot."

Cultural preservation should be regarded as a vital part of democracy and not just within the realm of historians and anthropologists, Martinez said.

"It's America's agenda for its future, because the more diversity that exists, including Indigenous diversity, I think the better it is for a democracy like the United States, which purports to represent a broad spectrum of people, and it presumes to have people from all parts of the globe living here."

Martinez hopes to educate people to understand that when they hear an Indigenous culture is under threat, they respond in the same manner as they would if they heard whales are in danger. In other words, he said he wants people to "feel more outrage that these things are happening in the first place."

Cora Maxx-Phillips, a Navajo human rights activist, said the issue goes far beyond how laws are interpreted. "When we come to the word 'sacredness,' Westernized society does not have an inkling as to what that is," she said. "Our spiritual ties with nature is something that will never be understood outside of Indigenous cultures." 

But Maxx-Phillips also has an idea how to resolve that misunderstanding. "I'm looking at how we begin working on doing some more cross-cultural understanding," she said.

"I think that that will maybe help us in trying to understand our humanity."

Debra Krol covers Indigenous peoples at the intersection of climate, commerce and culture in the Southwest. Reach the reporter at debra.krol@AZCentral.com or at 602-444-8490. Follow her on Twitter at @debkrol. 

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation and the Water Funder Initiative.