Manataka American Indian Council

 

 

 

 

 

Excerpts from

NATIVE AMERICAN

SACRED SITES
AND THE
DEPARTMENT OF D
EFENSE

A Policy Paper

Edited by:
Vine Deloria, Jr., The University of Colorado and
Richard W. Stoffle, The University of Arizona

Report Sponsored by:
The Legacy Resource Management Program
with the assistance of Archeology and Ethnography Program
United States National Park Service

Submitted to:
United States Department of Defense Washington, D. C., June 1998

 

SACREDNESS AMONG NATIVE AMERICANS

Vine Deloria, Jr.

Religious sentiment and experience are foremost among the characteristics which distinguish our species from the rest of the organic beings in the world. Over the course of humanity's historical journey, religious experiences have formed the basis of social, political and economic institutions of both a formal and informal nature. American Indians, and many other tribal peoples, represent a long historical tradition in which religious experiences and knowledge, and the requirement of ceremonial participation, are spread more or less evenly throughout a small reasonably homogeneous society. Although American Indians participate in a large variety of religious traditions our concern here will be with that portion of the Indian nation that continues to follow traditional religious practices.

The United States Constitution guarantees, in the Bill of Rights, that the Federal government will not intervene in human social processes to establish a state religion nor will it place burdens upon the free exercise of religious duties and matters of conscience. As the population of a nation increases and its governing institutions are asked to perform more complex functions, innocuous religious behavior once specific to small groups of people becomes disruptive when practiced by increasingly larger groups. In making the proper accommodations to satisfy the followers of particular traditions, the exceptions in the rules which govern mass behavior begin to take on increasingly larger responsibilities. Accordingly, the contemporary social and political scene in the United States has created a great tension between practitioners of traditional American Indian tribal religions and some of the other institutional practices of mainstream society. Complex situations in which decisions regarding land use policies, construction of private and public facilities, and preservation of wildlife species and habitat are new areas of conflict which now affect traditional religious practices. We deal not so much with competition between religious traditions as with the areas in which some religious traditions and the secular arms of government meet, a situation not contemplated by the framers of the Constitution.

Two Supreme Court cases, Lyng v. Northwest Indian Cemetery Protective Association (485 U.S. 439 1988) and Unemployment Division, Department of Human Resources of Oregon v. Smith (1105 S. Ct. 1595 1990) and the recent amendment to the American Indian Religious Freedom Act (PL 103-344, 42 U.S.C. 1996a) have created a situation in which significant adjustments of Federal and constitutional law have been or will be produced. New understandings of traditional American Indian religions and an expanded philosophy of the Federal responsibility for protecting aspects of Native American traditions, already partially articulated in statutes such as the Native American Graves Protection and Repatriation Act, will require more sophisticated understandings, attitudes and activities from all state and Federal agencies in the very near future.

In order to understand the complexity of this change, it is necessary to distinguish some of the characteristics of the tribal religious traditions from concepts and behavior that are familiar to non-indigenous Americans. Attitudes originate in the expectations which our knowledge of a subject encourages us to anticipate and in the case of Native American religious traditions very little accurate information is known. Many stereotypes exist which place these few bits of knowledge in an unfavorable or exotic/esoteric light. A review of some of the more commonly identified characteristics of Native religions will enable us to understand the context within which religious experiences are occurring and producing behavior and activities that vary considerably from the expectations of the various groups of people whose religious traditions incorporate different perspectives.

Religious Contexts

The Mysterious Presence

Native and tribal peoples experience and intuit beneath the plenitude of physical entities in the natural world, the presence of a mysterious, personal energy. One tribe may call this energy Orenda, another tribe may describe it as Puha, a third may refer to it as Manitou, and yet a fourth may refer to this presence as Skan, implying energy with but a hint of personality. In general these words indicate an apprehension of the basic life-force of the universe which flows through or is found in everything. Inherent in this concept is the idea of a guided mission or plan which directs the universe to proceed along certain lines. The task of our species is to become positively aligned with that direction and maintain a balance between the seen and unseen forces that constitute our world. Aside from the words describing the existence of this energetic presence, unlike western and world religions, there is little effort made by traditional practitioners to achieve a clear definition of the substance, the role, or the meaning of this presence. There is, in fact, extreme reluctance to pronounce the sacred name of this mysterious presence and consequently the language of allusion and indirect discourse are used when referring to this mystery. Many tribes have the same prohibition on speaking the sacred name that we see in the Old Testament tradition regarding the Hebrew God. Sacredness, in its first and deepest encounter, requires that a boundary of respect be drawn around our experience and/or knowledge of this personal energetic presence. At the very deepest levels of religious knowledge, Native people do not, and as a rule will not, speculate on the basic functions of ultimate reality. They simply accept it as a given.

Manifestations of the Mysterious Presence

In spite of the speculations of non-Indian scholars, and the sometimes compliant agreement of some Native spokespeople, Native peoples do have a keen sense of the historical process and of the passage of time. Consequently the cumulative historical experiences of each tribe have been distilled over millennia into a complex network of interrelated stories and scenarios in which the interactive experiences of these people with this mysterious power have taken concrete historical-event form. Most tribal traditions begin with the process of creation, continue with migration traditions in which the people move through a variety of worlds, through changing conditions within a particular world, or in pilgrimages across now-familiar landscapes to arrive at designated locations where they are instructed to live. A significant proportion of ceremonial activity enacts the primordial experience of creation or migration and is understood as the primary balancing of cosmic forces to ensure continued existence of the world as we know it.

During the course of the historical journey made by each American Indian tribe, events of major significance take place and various personalities emerge which represent the dominant expressions of this mysterious universal power for the life of any particular tribal people. These personalities are not "gods" in the sense that peoples from the western tradition describe their historical religious personalities but they are endowed with a sacredness which stands in direct contrast to secular activities and beliefs. These personalities are more generally described as "spirits" which is to say that while they have specific roles to play in the creation and continuation of the physical universe, and in the definition of meaning for human societies, they are also known by specific personality traits which in turn define their relationships with human beings and with each other.

Each and every entity that helps to constitute the natural world is believed to partake of the mysterious personal energy and to have parity with every other entity in the sense that all together share responsibility for the physical world and for the creation of meaning within its moving processes as seen in the passage of time. No entity in and of itself has value exceeding that of any other but the roles which various entities are asked to play may vary considerably in significance when understood from the human perspective. Given this cosmic parity, there is very little emphasis on "worshiping" these other entities. Rather the concentration is that of petitioning the spirit to assist the human in certain kinds of tasks and in certain kinds of situations. Ceremonial focus could be said to consist of petitions and thanksgivings for past assistance.

Understanding the Nature of Symbolism

In the western European religious tradition, in its American stepchild (American Christianity), and in some of the non-western world religions such as Buddhism and Hinduism we find a great complex of symbols which remind us of the basic features of religious story lines. Symbols "stand for" realities that we acknowledge as being important to our religious expression. While the symbol may invoke great emotional response in those who see it, there is a sense in which the symbol serves primarily as a communications device and does not, in and of itself, participate in the religious experience. In the western context, when we say that a symbol "represents" a certain religious reality, we intend to communicate the importance of remembering how that particular thing fits into the total scope of our religious understanding. But we intend to convey the meaning that the symbol "stands for" another, higher reality, and that the symbol is not, in and of itself, sacred. Hence we are generally speaking of a device for recalling important teachings.

The Native American and other tribal traditions do not use symbols in this sense. When a religious practitioner in an American Indian ritual or ceremony states that a rock represents the earth or a familiar mountain, the designation means that the earth or the mountain is actually present in the ceremony, present in the same way as if the entity had personally sent a representative to the ceremony with full instructions to participate in the proceedings. Insisting that the entity is actually present means that the ceremonial event is a real and integral part of the ongoing cosmic process. The event then has a historical content and is not simply an occasion when clarity of purpose or communication has been established. In a real sense it is a special kind of intervention in the cosmic process to give meaningful focus to future activities. When the Sioux could no longer use the buffalo in one of their ceremonies there was great debate over which of the new domestic animals brought by the white man could be safely used as a substitute for the bison. Similarities in morphology, function, personal characteristics, and ways of relating to human beings were discussed before it was agreed that the sheep could be used as a substitute for certain kinds of rituals. But some ceremonies have simply been abandoned because they were so animal or bird-specific that substitution could not be made. As an example, occasionally participants in an Eagle Dance will relate how they found themselves suddenly high in the sky circling the dance pavilion, actually experiencing what it means to be an eagle. Other times in Visions, the Eagle appears at first as a human being and then becomes transformed into an eagle. In these two instances we see the sacred dimension of being able to experience what other entities feel and understand about the world. People can feel what it is like to be a plant or animal and, we assume, these other creatures can know what it is like to be human.

Ritual Activity

The purpose of the physical universe, in its most pristine sense, is the coordinated participation of every entity in the activity of full realization of potential. In its purest form the Native American view of the universe is a ritual expression of possibilities and potential performed by various entities coordinated in fulfilling relationships. This expression depends on the awareness of every entity of its responsibility and the relationship of that role to the functions performed by others. The ceremony is a coming-together of the various entities and the merging of the various experiences of individual time to produce a ceremonial moment in which something new in the cosmos takes place.

Obviously, within the physical universe, it is extremely difficult to correlate the "times" of each entity to produce this moment of complete coordination. The world as we experience it, therefore, is a product of the activities of all entities as they attempt to correlate their personal times with the larger cosmic process. "Religion" as practiced and experienced within American Indian tribal communities is a series of rituals with various origin points in the past practiced in an effort to bring harmony and coordination to the present physical universe.

Unlike the Mass or the Passover which both commemorate past historical religious events and which believers understand as also occurring in a timeless setting beyond the reach of the corruption of temporal processes, Native American religious practitioners are seeking to introduce a sense of order into the chaotic physical present as a prelude to experiencing the universal moment of complete fulfillment. Consequently Native American rituals are designed to deal with immediate adjustments of the situation confronting human beings. What may appear to be the most insignificant ritual may actually have great significance in formulating the completeness of the whole. A healing ceremony, for instance, would adjust the health condition of the person receiving the healing, the spirits participating would be able to bring their healing powers into the physical universe, and the other entities, birds, plants, and animals, would experience joy and fulfillment in assisting in the corrective measures being taken.

Participation in ritual activity places on the practitioner a moral/ethical burden in which responsibility for the well-being of the other entities which assisted in the ceremony are assumed. Even when the ceremony requires the killing of a bird or animal or the complete destruction of the plant, it becomes the task of humans to ensure that the other entities have not made sacrifices of their lives in vain. In a real sense, for most Native American traditions, the human being acts as facilitator for a variety of other entities in creating the ceremonial or ritual moment and setting to generate the experience of cosmic completeness of all participating entities. Rituals which ensure the continuation or renewal of the world, or which express thanksgiving for the physical world as we know it can be said to be performed for the benefit of other creatures and only minimally for our species.

Kinds of Ritual Activities

The mysterious, personal energy which exists in all things gives each entity a basis for experiencing completeness through participatory rituals when individual identities are seen as physical expressions of the commonality of energetic life. That is to say, the other creatures of creation also find fulfillment in the rituals and their own species' historical experiences are enhanced by their participation. Eagles become more powerful as their participation in rituals increases, and their relationships with other birds and animals becomes more significant. Rituals, therefore, are not restricted to human activity alone and some tribes describe the behavior of plants and animals as ritual practices in which completeness is found without human assistance. Divining the meaning of plant and animal rituals may sometimes produce imitative human behavior. The Plains Indians must certainly have copied the dance of the prairie chicken in some of their rituals although the event during which this incorporation was made is now unknown. Dances honoring the deer, bear, buffalo or other game animals may also have been transferred from wholly animal behavior to human ceremonial importance. Dances for animals in one sense are also suggestions for footwork and expression made by humans to their animal relatives.

Healing

The rituals and ceremonies in which we have an interest for the purposes of this report are those in which human beings, on behalf of other entities, ranging from the Sun, the planet Mother Earth, mountains and rivers, different species of plants and animals, and finally specific groups of people and particular individuals become the focal point and prime participants. The dominant purpose of these rituals and ceremonies are to bring order out of a chaotic situation.Therefore, in modern terms we see healing as the primary goal. Healing can be understood as the means by which adjustments are made in the physical universe so that all entities can function in a manner much closer to their innate Potential. Renewal ceremonies, such as the one described in Chapter Seven, conducted at Fort Hood, are healing activities on behalf of the human beings who participate and the medicine wheel which was originally constructed to serve that purpose.

Thanksgiving

Closely related to the healing activity is that of thanksgiving, which could be described almost as preventive healing in the sense that properly maintained sets of relationships do not create tensions and conflict. Thus ceremonies and dances are performed primarily to honor birds, fish, animals, and particular locations of Native American concern. These ceremonies are the means by which humans give thanks for their good fortune in having relationships with the rest of creation, the thanks being given to particular creatures or locations. The First Salmon ceremony of the Indian nations of the Pacific Northwest and some of the Southwestern United States eagle ceremonies are good examples of this kind of activity.

Vision Quests

Some people see a hierarchy of rituals present in some of the tribal traditions. Viewed cross-culturally, the Vision Quest is the most common way of producing the religious leaders of each successive generation. In a Vision Quest, a young person secludes himself or herself in order to receive a foreknowledge of their life's religious vocation. This particular ritual is a sophisticated effort to discern the specific goals of the temporal processes which seem to direct Native American lives and to place the coming generation in synchronous relationship with them. This ritual is now being revived in a large number of tribes in an effort to reduce the juvenile delinquency problems. In general it consists of a four day fast, under the supervision of an elder, performed by an Indian boy or girl at the onset of puberty. In more precise terminology the Vision Quest is also done by traditional practitioners to maintain their relationship with higher spiritual powers and to ask for additional specific powers or to gain information on particular subjects.

The original goal of this research project was to locate sacred sites connected primarily with the Vision Quest ceremonies because these rituals, being primarily initiatory, were essential to the continuing process of providing medicine people and spiritual leaders for Native American communities. It was anticipated that conflicts between traditional spiritual practitioners and military installations might revolve about the question of access to sacred sites on military lands for Vision Quest purposes. As the number of probable sacred sites increased it began to appear that the Vision Quest problem might not be as severe as anticipated. The mass of materials began to dictate a much different arrangement of data and the inclusion of other kinds of sites which have the potential for becoming publicly acknowledged by religious leaders of Native American communities. The changing nature of Native American religious concerns now appears to be more aggressive in identifying and protecting locations that would not have been made public in the past. As more sacred sites become a part of Native American and non-Indian awareness, there is no question that Vision Quest activities will be seen as part of more sacred locations. However the sense of urgency with respect to the Vision Quest locations, inspired perhaps by the Northwest Indian Cemetery Protection Association problems with the government, is considerably less than anticipated. In actual practice, DoD base commanders can expect that requests for memorial and condolence ceremonies related to existing sites already known or burials uncovered during construction or use of installation lands will be the most numerous. It is highly unlikely that new use requests would be made by present-day practitioners. The resolution of the problem of the medicine wheel and cemetery at Fort Hood would be the exception not the rule in these cases.

Condolence

The last kind of Native American ritual activity which may be encountered that might depend on access to a particular location deal with condolence, mourning, or memorial activities. In some of the tribal traditions these ceremonies greatly resemble similar kinds of services performed by the Christian priests and ministers and Jewish rabbis. Basically they help people deal with the loss of loved ones, commemorate members of the community who have been helpful or respected, and sometimes provide a direct linkage between generations of people separated by time and the passage of years. Some years ago a mixture of traditional Sioux spiritual leaders and Sioux priests and ministers cooperated to perform a memorial and reburial ceremony/service for the people's remains found in the excavation of a village near the Big Bend of the Missouri. In practice we can anticipate that DoD base commanders will have more contact with these ceremonies than with the Vision Quest, World Renewal, or other ceremonies.

Rituals and Sacred Places

Of particular importance for this study, for DoD, and for the state and Federal agencies who will be dealing with the religious/cultural concerns and practices of Native Americans is the relationship of particular locations to the practice of traditional Native American religions. Tribal religions view the landscape as an integral part of religious experience because it is not only the locus for human experience but the earth itself is a living entity and manifests its relationship to all forms of life by sustaining them. Landscapes have interlocking sets of locations which are holy in and of themselves because they are the most specific means whereby the earth can relate to lesser entities.

Over the course of thousands of years, Native Americans have discerned the various sacred sites which have power; that is to say, manifest the energy and concern of the earth. Sometimes several tribes will have discovered the sacredness of a site and become aware of the proper ceremonies that must be performed there. Bear Butte and the Sangre de Cristo mountains of New Mexico are good examples of multi-tribal sacred sites. A number of mountains in southeastern Utah have the same status. Within traditional occupancy areas and along ancient migration routes are more locations that have a religious significance to particular Indian tribes. The knowledge of these locations has been passed down within certain families who performed ceremonies for many generations.

In contrast, western and some other world religions also have sacred places and shrines but these sites generally mark the location where historical religious events took place: Mt. Sinai, Mecca, Jerusalem, and other locations. Through ceremonial activities these religions set aside or consecrate locations that then take on significance for the followers and becomes the focus of ceremonial activities. These religions also have the practice of consecrating a location and establishing a shrine where practitioners can worship. The consecration then removes the location from the secular world and places it within the scope of continuing religious activities.

When dealing with public lands or lands controlled by Federal agencies, it is possible to provide non-Native American religious bodies with tracts of land which they can consecrate and use for religious purposes. The location can be almost anywhere of convenience. Native American religious traditions, however, can only use a specific location which is already known to be sacred. In use of geographic locations, therefore, the non-Native American religious bodies can accommodate almost any assignment and make use of it; Native American religious bodies must use particular locations or they cannot continue their ceremonial life.

Sacred Objects

Perceiving a living universe, manifested by the presence of the mysterious life energy in everything, tribal religious traditions understood objects used for religious purposes as possessing the mysterious power which made the universe function. Rituals almost always require the participation of the other creatures of the creation and consequently ritual practices require the collection of plants and animals, minerals and clays, stone, and some ceremonial form of setting these objects aside once they have been used ritually.

Objects used in rituals may have sacred significance for only a duration of time, while some ritual objects are thought to have existed since creation. As an example of time-limited objects, the Zuni make war gods of wood which have status and an active function within the Zuni ceremonial life but which, after a designated period of time, are then placed in special locations where they are returned to the natural world through the processes of decay and erosion.

The classification of objects as having ceremonial potency depends upon the designated practitioners of the respective tribal religious traditions and not upon use or misuse or possession by secular individuals. In terms of designation or classification of objects which might be found on United States military lands, the best course of action for DoD resource managers concerned about the treatment of those objects is to contact practitioners of the most probable Native religious tradition and seek their advice on how to handle the situation.

Sacredness within the traditional Indian religions does not depend upon a hierarchical arrangement of ceremonies or objects, but upon existing and possible future sets of relationships between living entities. Attempting to evaluate the relative importance of certain kinds of practices or materials from outside the religious context is difficult if not impossible. Forcing religious experiences into foreign interpretive frameworks does violence to the understanding of the factors that are actually involved. Misunderstandings and transfers of emphasis can lead to embarrassment and conflict that is unnecessary.

A great deal of Native American religious knowledge has been lost over the last century. Consequently many locations which would have invoked a sense of reverence long ago may not have the same status among practitioners of the religion today. The purpose of existing and contemplated Federal and state laws which seek to grant access to sacred sites or set aside locations of the gathering of ritual objects is in accord with the resurgence of many tribal traditions which have been illegally and immorally suppressed during the immediate past. These efforts are good faith attempts to reconcile the practices of traditional Native religions with the requirements of mass society and its institutions today.

In terms of the expectations which DoD base commanders can anticipate that relate to sacred objects, apart from personal goods which might be found in burials, the objects most important will be those natural substances that were or are used in ceremonies. Already several U.S. military installations have worked out arrangements with a tribal government allowing gathering of plants. While sacred objects are represented by a much wider variety of religious paraphernalia, such as prayer feathers and wands, strips of cloth, and designed figures made during ceremonies, concern in general should focus on the plants and minerals which are necessary for ritual use.

Summary

The context within which Native American religious expression is found and understood is that of a living universe which has, as its basic ground, a mysterious personal energy that pervades and energizes everything. Although this great energy is to be found in every entity which humans encounter, it is the specific manifestations of this energy in historical events that particularizes the sacred into sets of powers and personalities with whom the tribal community has a relationship.

Traditionally many societies have reached the conclusion that a "High God" or solitary deity exists by reference to the orderliness of the natural world or through the demonstration by logical reasoning. This deity is intellectually and conceptually pleasing but we do not find it present in very many Native American religious traditions. Instead we find vaguely defined beliefs inside vast and very complex ceremonial practices. Since the mysterious power can manifest itself in the historical moment without projecting a sense of absolute revelation, in the western European and American sense, there is no conflict among or between tribes as to the form and substance of ultimate reality.

The basic requirement of Native American ritual activities is that all creatures of creation be granted access to the ceremonies. The transformation of natural objects without specific instructions from the spirits was regarded as a violation of the integrity of the other entities. Therefore, use of natural objects usually conforms closely to their original state. A good example of this practice is in the treatment of peyote for religious purposes. The Native American Church does not alter the peyote button in any way, since that would be a violation of the spirit of the plant. Indian people regard the processing of the plants to find a chemical derivative as a dreadful act. With the exception of placing sacred objects at certain locations, traditional Native American people do not, as a rule, attempt to construct buildings such as churches and chapels at sacred sites. Everything in the physical world is believed to have its own integrity. The task of religious practitioners, therefore, is to create the minimum disruption of the site and cause the minimum disruption of the lives of other creatures while performing ceremonial functions on behalf of these entities.

 

Federal laws and executive orders are specific about governmental entities’ treatment of sites that are considered sacred by tribes and interested Native Americans, whether recognized or not; in fact, it is specifically directed that governmental agencies work with local groups to preserve sites, remove impediments to practicing ceremonies and not restrict access by Native Americans. See below.

 

Native Americans, including American Indians, Native Alaskans, and Native Hawaiians, maintain strong interests in places where their people have lived. In the United States some of these places are currently held by the Federal military. Native Americans are interested in talking with the military about the identification and protection of these places. The Department of Defense (DoD), like other Federal agencies, is moving into a period of openness and consultation with all citizens. Native Americans, as both citizens and members of dependent nations within the United States and as original occupants of lands that are currently held by the DoD, have a special cultural relationship with these military lands. Traditional, aboriginal, and historical cultural ties to places, objects, and activities are the foundation of this special relationship. Both American Indians and other Native Americans within the United States have this special cultural relationship to DoD lands. This study is about formalizing this relationship. The report has been completed as part of the DoD Legacy Resource Management Program.

Scope of This Report

This report is about Native Americans and their cultural resource relationships with the DoD. The scope of the report, however, was limited by a number of factors. This project was originally designed around two complete years of research, but only one year of funding was available. As a consequence, some topics that logically fall within the scope of this report could not be studied. This resulted in some topics receiving uneven coverage, while other topics were not studied at all. For example, this report contains more analysis of American Indian issues than it does issues of concern to Native Alaskans and Native Hawaiians. American Indians are the focus of this report because considerably more information is available about American Indians, and because there are more documented DoD interactions with American Indians. Case studies of Pacific and Alaskan peoples were to be completed in the second year of this project, which was not funded.

This study does not consider the Native American relationships of all 16 Defense agencies that report to the Department of Defense. Instead, the study was restricted to the Army, Navy, Air Force, and Marine Corps.

Like all studies, this report is based on information that was available during a certain period, and cannot reflect information that became available after that time. Data were collected for this report between September of 1993 and June of 1994. Since that time changes have occurred that are not reflected in this analysis. These include the issuance of a new Executive Order by the President (E. O. 13007; Clinton 1996), an Executive Order on government-to-government relationships between Federal agencies and tribal governments (Clinton 1994a), and a new DoD Instruction (DoDI 4715.3, "Environmental Conservation Program") which includes broad consultation guidelines for working with Native Americans and other new policy statements regarding Native Americans.

This report was essentially produced by an informal committee composed of cultural scholars, military cultural specialists, and Native American people. When the military and Native people wrote about their experiences, their texts were often approved by a base commander or a tribal chair. These texts accurately convey their perceptions of DoD-Native American relationships. The report also reflects the issues being discussed and the data available for analysis. Dr. Deloria has drawn on years of experience as a noted Indian person and author of many books. His essays are designed to provide easy access to difficult cross-cultural understandings about the meaning of sacredness. The chapter summarizing known DoD - Native American relationships contains statistics because these data are best presented in this manner. Although the many writers and various types of data result in an uneven writing style, this approach most accurately reflects the information being conveyed and the many people who contributed their ideas.

There are many meanings and uses associated with the terms Native American and American Indian. Some of these meanings and uses are defined by law, whereas other meanings and uses derive from the preferences of Native American and American Indian peoples. This report attempts to reflect both of these points of views, and apologizes in advance if one or the other of these terms is used in a way that is insensitive.

A major limitation of this report is a lack of direct input and review by Native Americans who have relationships with the DoD. The second year of this study was designed to have American Indian focus groups take the findings and ideas from this study and give them a distinct Native American point-of-view based on actual experience. Therefore, the findings and issues raised by this report cannot be said to fully reflect a Native American perspective.

When this study began it was perceived as a way of beginning to talk, based on some facts and ideas, about DoD and Native American relationships. The study was to find and record in one place what was known about the best of DoD - Native American relationships. This study was to be a point of departure for other studies, as well as a data-based mirror for reflecting on existing and future DoD Native American policies.

Overview of Native American Issues

It is necessary to emphasize that the term Native American encompasses many people and many cultures. It is estimated that in 1492 North American peoples (above Mesoamerica) spoke more than 300 languages; more than 1,000 independent societies are named in documents (Campbell 1983; Griffen 1983; Hinton 1983). Greater North America was widowed by thousands of epidemics beginning in the mid-1500s (Dobyns 1983, 1993) and continuing until the world-wide flu epidemic of 1918 (Crosby 1976). When Old World diseases spread to Native American populations, as much as 90% of the local population died. With disease came intrusion by other peoples -- European, African, Asian and even other Native Americans (Crosby 1972; Jennings 1975). The landscape of North America was drastically changed in ecology (Cronon 1983), and the people were changed in demography (Jacobs 1972), social structure (Morey and Morey 1973), and culture (Linton 1940; Spicer 1961, 1962). Despite these massive changes, Native Americans persisted (Deloria 1978; Deloria and Lytle 1984; Spicer 1971) and today in the United States there are more than 700 Federally recognized tribes including Alaskan Native villages, hundreds more groups formally seeking Federal acknowledgment, and tens of thousands of native people who both lack membership in a tribe and the ability to meet the Federal acknowledgment criteria. Although the following text is careful to point out this diversity, occasionally the image of a single Native American point of view does emerge.

Native Americans are attached to the land in some ways that others can easily understand, but also in other ways that are almost impossible to explain. The Christian-Islamic-Hebrew concept called holy land perhaps best describes where the Indian people perceive they were created. Here in their holy lands are origin mountains where the supernatural created them and gave them responsibilities for using and protecting the land. Here also are places of great religious significance to all Native ethnic group members; places best described by the Christian-Islamic-Hebrew term sacred site. However, Native Americans have places that they consider powerful or religiously significant, such as where a mythic being spent one night or where lighting struck the earth. Such places lack cognates in European and Mid-Eastern religions making it more difficult to explain to non-Native Americans that such places are truly sacred and worthy of protection and reverence by everyone.

The term cultural resources generally is used in the United States today to refer to places, and objects and activities associated with those places. Although the term cultural resources is widely used, the term has a number of conflicting and vague meanings. The term has become a substitute for the statutorily defined term historic properties and the gloss for all places and objects of cultural significance to Native Americans. The term cultural resources is used in this report because it widely conveys what is being discussed here, but the term is at best a beginning of an understanding of Native American land concepts and at worst it legally and administratively limits the expression of Native American cultural concerns. Such concerns tend to include plants, animals, minerals, water and other natural elements, as well as artifacts and properties which primarily define the concept of cultural resources. The Legacy Program's working definition of cultural resources (see below) expands the concept but still fails to capture a Native American perspective. This report, like previous efforts to express the depth and variety of Native American cultural concerns, remains inadequate from a Native American perspective. Ultimately the cultural resource concerns of Native Americans are best expressed in face-to-face communication between Indian people and the people who manage traditional lands, including the DoD.

The purpose of this report is to provide information that will assist the DoD in building better partnerships between its installations and contemporary Native American people who have traditional ties to portions of land or cultural resources currently held and managed by the DoD. One means of achieving this goal is to build upon information already collected as part of the Legacy Resource Management Program within the DoD. Another means is to collect and present original information.

This introduction to the report provides: (1) a brief history of the DoD Legacy Resource Management Program; (2) the program's definition of cultural resources; (3) a summary of five major U.S. laws and one military regulation that specify the role of Native Americans in cultural resource management programs; (4) a discussion of how this report is organized; and (5) a summary of key findings.

History and Background of the Legacy Resources Management Program

The Legacy Resource Management Program was established within the Department of Defense (DoD) by the Congress of the United States in 1991 (P.L. 101-511) to enhance the management of natural and cultural resources on an estimated 26 million acres of land under DoD jurisdiction. The program was designed as a proactive approach to identifying, protecting, and maintaining natural and cultural resources on all lands under DoD jurisdiction or influence. The Legacy legislation set forth nine specific purposes. The fifth purpose of that legislation is:

to establish programs to protect, inventory and conserve the artifacts of Native American civilizations, settler communities and others deemed to have historical, cultural or spiritual significance.

A definition of cultural resources was developed for the Legacy Program through consultation with representatives of the DoD, including the military services, the Advisory Council on Historic Preservation, the National Park Service, the National Conference of State Historic Preservation Officers, and other individuals (ACHP 1994). Cultural resources are any real or personal property, record, or lifeway that can be defined to include:

(1) historic real property including any archaeological or architectural district, site, building, structure, or object, including monuments, landscapes, or works of engineering that meet criteria for inclusion in the National Register or any other property that meets the criteria for inclusion in an equivalent register maintained by a Tribal, State, or local government;

(2) historic personal and related property including any prehistoric or historic artifact, relic, piece of equipment, weapon, article of clothing, flag, work of art, movable object, or other item of personal property to which historical or cultural significance may be ascribed through professional evaluation of historical associations to persons, events, places, eras, or with military organizations. Personal property includes the archaeological materials associated with prehistoric artifacts, such as associated records and earth and biological samples;

(3) historic records including any historical, oral-historical, ethnographic, architectural, or other document that may provide a record of the past, whether associated with real property or not, as determined through professional evaluation of the information content and significance of the information;

(4) community resources and lifeways including any resource to which a community, such as a neighborhood or Indian tribe, or a community of interest, such as a preservation organization or veterans' group, may ascribe cultural value. Such resources may include historic real and personal property, such as natural landscapes and cemeteries, or have references to real property, such as vistas or view sheds which may help define a historic real property, or may have no real property reference, such as aspects of folklife, cultural or religious practices, language, or traditions.

Cultural resources are defined by communities, such as Native American tribes and organizations, and can only be identified and fully understood by individuals who are knowledgeable about the culture and traditions of those groups.

Personnel at DoD installations can begin to build relationships with Native American tribes and organizations through consultation. According to the Advisory Council Report:

Each installation should have a public consultation plan as a standard operating procedure in its historic preservation plan, cultural resource management plan, or installation master plan. Training should be available to responsible installation personnel on public consultation and dispute resolution techniques (ACHP 1994: xv).

Despite the need for consultation between DoD and Native Americans regarding cultural resources, it is necessary to proceed after a consultation plan has been developed (see Chapter Five) and with an understanding of how past DoD and Native American consultations have proceeded.

Four research studies were conducted between 1991 and 1993 with Legacy Program funds to gather data about cultural resource management activities at DoD installations. Those research studies were reviewed extensively as part of this project and are discussed in Chapter Six. The results of three of those studies have been or are being published in reports (see Table 1.1). In addition, the Cultural Resources Program Development Task Area of the Legacy Resource Management Program completed a draft report, Actions for Cultural Resource Stewardship, that outlines ten cultural resource management objectives for the DoD and provides an action plan for implementing them.

All four Legacy reports raised concerns about cultural resource management at DoD installations during the study period. The findings of one report, Defense Department Compliance with the National Historic Preservation Act: Section 202(a)(6) Evaluation Report (ACHP 1994), conclude that (1) cultural resource legal compliance and program administration within the DoD are inconsistent; (2) there is generally inadequate institutionalization or support for cultural resource management at the installation level or higher; (3) there is wide variation in the understanding of historic preservation laws and policies and the sensitivity and interest of installation personnel who might affect cultural resources in significant ways; (4) there is inadequate education and training to allow personnel to understand cultural resource management; and (5) there is inadequate attention to the active management requirements and stewardship of cultural resources. Many actions have been taken by the DoD since these studies were conducted to mitigate these concerns.

These concerns about cultural resource management on DoD installations focused on the protection of the artifacts and historic places themselves, rather than on the Native Americans whose ancestors aboriginally owned the land and produced the artifacts. Only one study primarily addressed relationships with Native Americans -- the 1993 report Native American Access to Religious and Sacred Sites on Department of Defense Installations. That report noted that despite a general lack of relationships with Native Americans, a number of major installations within the DoD are involving Native Americans in cultural resource management. That report concluded that these military installations can serve as positive examples for others to follow.

Cultural resource management on U.S. Federal lands or lands affected by Federal activities is conducted within a specific regulatory framework. Therefore, it is important to discuss the legal requirements that govern Native Americans cultural resources studies in the United States. The next section discusses five of the more important cultural resource laws that specify how Native Americans should be involved in cultural resource management on Federal lands. Native American relationships, however, are more than simply compliance, because they should reflect the spirit and the intent of the U.S. Congress when it passed laws such as the American Indian Religious Freedom Act and the Native American Graves Protection and Repatriation Act.

Table 1.1. Selected Legacy Program Cultural Resources Studies

Year

Sponsoring Agency

Research Title

Report Title

Pub. Date

1991

Advisory Council for Historic Preservation

Cultural Resource Management Survey

Defense Department Compliance with the National Historic Preservation Act: Section 202(a)(6) Evaluation Report

1994

1992

United States Air Force

Natural and Cultural Resources Management Survey

U.S. Air Force Natural and Cultural Resources Program: Natural and Cultural Resources Management Survey

1992

1992

Department of Defense

Legacy Program Survey of Cultural and Natural Resource Programs

none

none

1992-1993

U.S. Army Corps of Engineers, Waterways Experiment Station

Legacy Study of Native American Access to DoD Installations

Native American Access to Religious and Sacred Sites on Department of Defense Installations and American Indian Access to Department of Defense Facilities: Source Documents and Bibliography

1993

 

Legal Basis for Interactions Regarding Cultural Resources

Interactions between the DoD and Native Americans in 1995 were governed by a number of Federal laws, an Executive Order, and a DoD Directive (see Table 1.2). Each of the major laws and consequences of failure to comply with them are summarized in the following sections. The specific requirements regarding consultation with Native Americans have been italicized throughout the section.

National Environmental Policy Act

The National Environmental Policy Act (NEPA) was signed into law in January 1970. NEPA is triggered by any Federal action that might affect the environment. The conceptual boundaries of the term environment are not specifically defined in the law or resulting regulations, but over time has come to include cultural resources and socioeconomic elements. The Act requires completion of an Environmental Impact Statement (EIS) when such an action is judged to have potentially significant environmental impacts. Relevant to the purposes of this study, NEPA encourages the preservation of historic resources and requires consideration of social impacts. A report from the Council of Environmental Quality specifically directs (but without the force of law) the solicitation of input from affected Indian tribes at the earliest possible time in the NEPA process (40 CFR 1501.2). The lead agency in the process is also directed to invite the participation in the scoping process of any affected Indian tribes as well as Federal, state, and local agencies or other interested persons (40 CFR 1501.7). The agency preparing a draft EIS must request comments of Indians tribes whose reservations may be effected (40 CFR 1503.1). Where project impacts are entirely social or economic, no EIS is required despite the severity of impacts. NEPA is effective for incorporating Native American interests into DoD planning, but requires a process of impact documentation. It thus provides no specific form of protection for any resource concerns.

National Historic Preservation Act

Concern for historic and cultural resources has been expressed in legislation throughout the twentieth century. In 1906, the Antiquities Act authorized the President of the United States to declare landmarks, structures, and objects of historic or scientific interest to be national monuments, and to reserve land got their protection. It established obtaining permits for archaeological excavation on public lands. The Historic Sites Act of 1935, provided for the preservation of historic American sites, buildings, objects and antiquities of national significance; this was greatly expanded with the National Historic Preservation Act (NHPA).

This Act (1955) expanded the properties to be preserved to include those significant in American history, architecture, archeology and culture (Section 101-2). Implementation of NHPA is triggered by a Federal or Federally assisted projects, activities, or programs (36 C.F.R. § 800.2(o)). The Act provides assistance to states, establishing an Advisory Council on Historic Preservation (ACHP) to advise the President and Congress on historic preservation, encourage public interest in historic preservation, and to help other governments draft legislation historic preservation laws. ACHP regulations assign most responsibility for Section 106 process to State Historic Preservation Officers (SHPOs), (Suagee and Funk 1993). Section 502 of the 1980 amendments to the NHPA directed the Secretary of the Interior to study the means of "preserving and conserving the intangible elements of our cultural heritage such as arts, skills, folklife, and folkways..." and to recommend ways to "preserve, conserve, and encourage the continuation of the diverse traditional prehistoric, historic, ethnic, and folk cultural traditions that underlie and are a living expression of our American heritage" (PL 96-515, December 12, 1980). This amendment eventually led to a new type of cultural resource property term being specified in law and regulation. This new term, called traditional cultural properties (or TCPs). TCPs had been protected as cultural resources before the new legislation but because of their unique characteristics they were often overlooked, so the new legislation served to focus attention on this particular kind of cultural resources. The term TCPs refers to properties that are associated with the customary practices or traditional beliefs of a community and are significant in the continuing identity of a community (Parker and King 1990). TCPs are known from the culture of the people who value them. A good example of a TCP is a mountain top that is the locus of Native American religious practice. National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties (Parker and King 1990) is an important source of information about the definition of TCPs and provides guidance for documenting and evaluating their eligibility for listing on the National Register of Historic Places.

Table 1.2. Legislation and Executive Orders Regarding Native American Cultural Resources

Title

Codified

American Indian Religious Freedom Act

PL 95-341; 42 U.S.C. § 1996, § 1996 note

Antiquities Act

PL 209; 16 U.S.C. §§ 431-433

Archaeological Resources Protection Act

PL 96-95; 16. U.S.C. §§ 470aa-470mm

Historic Sites Act

16 U.S.C. §§ 461-467

National Historic Preservation Act

PL 89-665, 16 U.S.C. §§ 470-470w-6 and amendments; PL 96 515, U.S.C. 470a

National Environmental Policy Act

PL 91-190; 42 U.S.C. §§ 4321-4370c

Native American Graves Protection and Repatriation Act

PL 101-601; 25 U.S.C. §§ 3001-3013

Executive Order 11593, Protection and Enhancement of the Cultural Environment

36 Fed. Reg. 8921 (1971), reprinted in 16 U.S.C. § 470 note

DoD Directive 4710.1, Archeological and Historic Resources Management

 

White House Memorandum for the Heads of Executive Departments and Agencies

29 April 1994

Executive Order 13007. Indian Sacred Sites

24 May 1996

DoD Directive 4715.3, Environmental Conservation Program

 

The 1980 NHPA amendments also authorized the Secretary of the Interior to make grants to Indian tribes and minority groups for the "preservation of their cultural heritage." Funds were first appropriated by Congress and dispersed to tribes and minority groups by the National Park Service in 1990 (Suagee and Funk 1993).

The 1980 NHPA amendments are explicit in the requirements for the protection of the confidentiality of the location of sensitive historic resources. They direct the head of any Federal agency to "withhold from disclosure to the public, information relating to the location or character of historic resources whenever...the disclosure of such information may create a substantial risk of harm, theft, or destruction to such resources or to the area or place where such resources are located" (Section 304). National Register Bulletin 29, Guidelines for Restricting Information on the Location of National Register Properties, provides full detail for agency directors. This document should be consulted because the willingness of Native Americans to share information partially depends on how well the agency can protect information from public disclosure.

The 1980 NHPA amendments also demonstrate the shift in U. S. policy toward the recognition of Native Americans, including for the first time in historic preservation legislation explicit mention of the Federal government's partnership with Indian tribes in the protection and preservation of prehistoric and historic resources (section 2).

On October 30, 1992, the National Historic Preservation Act was again amended (PL 102-575), providing considerably greater authority and assistance to Native Americans. The 1992 amendments specifically mention the need for Federal agencies to contact and consult with Indian tribes and provide for the involvement of the SHPO in the Section 106 consultation process. Section 110 of the amended NHPA directs all Federal agencies to establish preservation programs to help avoid crises that may arise due to the discovery of archaeological sites and human remains after a project has begun. This section also requires that all Federal agency preservation-related activities be carried out in consultation with Indian tribes or Native Hawaiian organizations. Properties of traditional religious and cultural importance to an Indian tribe may be determined to be eligible for inclusion on the National Register, and a Federal agency must consult with any tribe that attaches religious or cultural significance to such properties (Section 106 d, 6). In addition, Indian tribes are to receive assistance preserving their particular historic properties (Section 101 d, 1). Coordination among tribes, State Historic Preservation Offices (SHPOs), and Federal agencies is to be encouraged in historic preservation planning, and in the identification, evaluation, protection, and interpretation of historic properties. When historic properties are found on Federal land and a proposed undertaking would cause adverse effects to them, the Federal agency official must "in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate," (Section 110 a, 2, E, ii) provide a process for the development and implementation of agreements (e.g. a Memorandum of Agreement (MOA)) regarding the means by which adverse effects on such properties will be considered. Additional language is included in the amendments which strengthen the government's responsibility to maintain confidentiality. Amendments to Section 110 of the NHPA now refer to compliance with the Native American Graves Protection and Repatriation Act.

In response to the 1992 NHPA amendments, a new policy statement, "Consultation with Native Americans Concerning Properties of Traditional Religious and Cultural Importance," was adopted by the Advisory Council on Historic Preservation (ACHP) on June 11, 1993. That policy provides explicit principles for application of the amendments, including particularly that Native American groups who ascribe cultural values to a property or area be "identified by culturally appropriate methods" and that participants in the Section 106 process should learn how to approach Native Americans in "culturally informed ways" (ACHP 1993:3-4). Consultation with Native Americans must be conducted with sensitivity to cultural values, socioeconomic factors and the administrative structure of the native group. Specific steps should be taken to address language differences and issues such as seasonal availability of Native American participants as well. According to this policy, Native American groups not identified during the initial phases of the Section 106 process may legitimately request to be included later in the process. The Advisory Council's policy statement also reaffirms the U.S. government's commitment to maintaining confidentiality regarding cultural resources and states that participants in the Section 106 process "should seek only the information necessary for planning" (ACHP 1993:3).

Archaeological Resources Protection Act

The Archaeological Resources Protection Act (ARPA) was signed into law on October 31, 1979 and extended protection of archaeological resources on Federal and Indian land. Archaeological resources are defined as material remains of past human life or activities that are of archaeological interest, having retrievable scientific information, and over 100 years old. ARPA is triggered by the presence of archaeological resources on Federal or Indian lands. Under ARPA, such excavated archaeological resources remain the property of the U.S. government, subject to inventory and repatriation in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA, see below). Archaeological materials removed from American Indian lands in violation of ARPA remain the property of the "Indian or Indian tribe having rights of ownership over such resources" (36 CFR; 229.13 (b)). ARPA provides the first significant criminal and civil penalties for the vandalism, alteration, or destruction of historic and prehistoric sites or for any transaction conducted with an archaeological resource that was excavated or removed from public or Indian lands or in violation of State or local law (section 6).

ARPA directs Federal land managers to notify any Indian tribe considering a site as having religious or cultural significance prior to issuing a permit for excavation or removal of archaeological resources from the site (section 4(c)). ARPA rules require Federal land managers to identify and make contact with "all Indian tribes having aboriginal or historic ties to lands under the Federal land manager's jurisdiction" to obtain information about tribal cultural and religious concerns for land management (43 CFR 7.7(b)(1)) (Suagee and Funk 1993). Section 9 restricts the release of information concerning the nature and location of any archaeological resource requiring a permit for excavation or removal. The January 25, 1988 amendments of the Act (PL 100-555 and PL 100-588) strengthened ARPA with requirements that Federal agencies develop plans for surveying lands not scheduled for projects and requires agencies to develop archaeology public awareness programs.

American Indian Religious Freedom Act

Additional legislation which affects Native Americans and Federal cultural resource management includes the American Indian Religious Freedom Act (AIRFA) of August 11, 1978. AIRFA reaffirms the U. S. Constitution's First Amendment rights of citizens' free exercise of religion; in this case, the right of American Indian, Native Alaskan, and Native Hawaiian peoples to have access to lands and natural resources essential in the conduct of their traditional religion. The Act states that it is U.S. policy to protect and preserve for American Indian, Native Alaskan, and Native Hawaiian peoples their inherent right of freedom to believe, express and exercise their traditional religions, and requires Federal agencies, including the DoD, to evaluate policies and procedures with the aim of protecting the religious freedoms of Native Americans including "access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." In practical terms, the Act requires concern for Native American religious sites and objects, regardless of their eligibility for the National Register.

During the sixteen years since AIRFA was passed, most Federal agencies have developed means of interacting with American Indian tribes having cultural resources potentially impacted by Federal agency actions. Within the DoD, however, only the U.S. Air Force has established a policy specific to Native American cultural resources (as of 1994). The May 1991 "Guidelines for Consultation with Native Americans In the Context of Program Planning and Impact Assessment" was written to provide policy and guidance concerning AIRFA and ARPA. The policy includes guidance for (1) archaeological resources protection, (2) the disposition of archaeological and historical human remains, and (3) a policy statement to be included in historic preservation agreements concerning Native American interests. These guidelines were incorporated into official policy as Air Force 32-7965 on June 13, 1994 (USAF 1994). Other service branches have, or are in the process of, formulating similar policies.

Native American Graves Protection and Repatriation Act

The Native American Graves Protection and Repatriation Act (NAGPRA) became law on November 16, 1990. NAGPRA makes provisions for the return of human remains and cultural items (including funerary objects, sacred items, and objects of cultural patrimony) held in Federally-funded repositories to lineal descendants and affiliated American Indian tribes, Alaska native villages and corporations, and Native Hawaiian organizations. NAGPRA has been the subject of many books (for example, see Price 1991) and articles (Deloria 1989, 1992; Stoffle and Evans 1994), and technical reports (Evans, Dobyns, Stoffle, Austin, Krause 1994). Each of these documents offers a somewhat different opinion regarding what NAGPRA means to both the Federal land managers and Native Americans. The following discussion of NAGPRA closely follows the most recently proposed Federal regulations (DOI 1993).

NAGPRA is triggered by the possession of human remains or cultural items by a Federally funded repository or by the discovery of human remains or cultural items on Federal or tribal lands. Under NAGPRA, human remains and cultural items in the possession or control of a Federally funded repository are to be repatriated, upon request, to lineal descendants or culturally affiliated Indian tribes, Alaska native villages and corporations, or Native Hawaiian organizations. The custody of human remains or cultural items excavated or discovered on Federal or tribal lands after November 16, 1990 is in priority order, with:

(1) a lineal descendant;

(2) the Indian tribe that owns the land upon which the human remains or cultural items were found;

(3) the culturally affiliated Indian tribe, Alaska native village or corporation, or Native Hawaiian organization;

(4) the Indian tribe from whose aboriginal territory the human remains or cultural items were found; and

(5) the Indian tribe, Alaska native village or corporation, or Native Hawaiian organization with a demonstrated cultural relationship to the human remains or cultural items.

Human remains or cultural items in the possession or control of a Federally-funded repository or Federal agency before November 16, 1990 must be reported to lineal descendants and culturally affiliated Indian tribes, Alaska native villages and corporations and Native Hawaiian organizations. The NAGPRA Review Committee is charged with making recommendations to the Secretary of the Interior regarding the disposition of cultural and human remains.

The Act requires formal consultation with lineal descendants and Indian tribes, Alaskan native villages and corporations, and Native Hawaiian organization officials in deciding the disposition of these human remains or cultural items. Consultation is required in the preparation of inventories of human remains and cultural items in Federally funded and Federal agency repositories and in the event of the excavation or discovery of human remains or cultural items on Federal lands or Tribal lands.

Executive Actions After NAGPRA

The White House Memorandum for the Heads of Executive Departments and Agencies (Clinton 1994a) requires the heads of executive departments and agencies operate on a government-to-government basis with Federally recognized Tribal governments. This Executive Memorandum directs all parts of the Executive Branch to operate with Federally recognized tribes, Alaska Natives, and Native Hawaiians on a government-to-government basis. This action greatly underscores the concept of tribes as sovereign nations that is recognized by the Constitution, affirmed by Congress by treaty and statute, and through the courts by precedents.

Federal agencies of the Executive Branch are directed to consult with tribes or other native groups about actions that may affect them (proposed projects; activities which impact cultural resources on public lands or lands held in trust). In addition, each agency is directed to remove all impediments to working with native groups on a government-to-government basis, and to develop policies which comply with this fundamental principle of the functioning of government. Key elements in this new, uniform policy which enhances and underscores the fundamental right of Native sovereignty are: direct contact between the Federal agency and tribal leaders; designing protocols developed in consultation with tribal/native governments to guide government-to-government relations; subsequent cooperation and collaboration between tribal and Federal officials; administration of parks and public lands incorporating knowledge of the cultural resources of affiliated native groups.

This policy creates a uniform requirement that native peoples be listened to and cooperated with in the administration and management of public lands. It creates a new theoretical base for public land management: all public lands have associated native groups who live(d) on and/or used the land, and therefore all public lands have traditional cultural resources of some affiliated native group(s).

In 1996, another policy, Executive Order 13007, was drafted that will also have significant impact on public lands. This Executive Order in effect guarantees access to sites on public lands which have sites that are/have traditional cultural resources (sacred sites). The Presidential Executive Order Indian Sacred Sites (Executive Order 13007; 24 May 1996; Clinton 1996) requires managers of Federal agencies of public lands to: allow, to the extent practicable and not inconsistent with essential agency functions, to accommodate access to and ceremonial use by Indians of sacred sites; protect such sacred areas from adverse affects; hold the location of sacred sites in confidence; and notify any culturally affiliated native group(s) of actions or proposals that might affect sacred sites. The first study to implement this executive order was a Rapid Cultural Assessment for Nellis Air Force Base in Nevada (Arnold et al. 1997), funded by Nellis Air Force Base.

Both the Memorandum on government-to-government relations for joint responsibility of traditional cultural resources on public lands and the Executive Order for Native American access to sacred sites have a huge potential impact on Federal-Tribal relations, public land management, and the area of applied anthropology.

DoD Instruction 4715.3, Environmental Conservation Program (May 3, 1996) directs managers of lands under military control to be aware of and responsive to Native American concerns about cultural resources and sacred sites on public lands in their care. Such Native American concerns must be incorporated into land management policy as part of an integrated natural resource management plan (INRMP), or an integrated cultural resource management plan (ICRMP). Military land managers must consult with Native Americans through the appropriate governments about cultural resources, TCPs, and sacred sites. DoD personnel are to be educated about Native American cultural and religious concerns, as well as about policies and laws relevant to those concerns. The Instruction requires: that the "sovereign status of each Native American tribal government" be respected; that Native Americans'; "strong connections to traditional tribal lands and their resources" be respected; that certain knowledge about Native American religious and cultural practices be kept confidential; and that DoD personnel dealing with Native American affairs have active training in these matters.

Service and Installation Specific Regulations

In addition to the laws and regulations regarding cultural resources that cover all DoD installations and operations, a number of regulations and policies have been developed within each of the four branches of the armed services. Those policies concern cultural resources management in general and have been reviewed elsewhere, so they will not be discussed in detail here (see ACHP 1994). As of 1994, only the Air Force had specific policy regarding Native Americans (USAF 1994; Nickens, Stoffle, Austin and Fulfrost 1993); other branches of service have begun formulating similar policies. Air Force Regulation 126-7 recognizes the rights of Native Americans to have access to sacred sites on military land under Air Force control. It directs the bases to identify Native American groups having historical ties to the military land and to consult with them to determine the location and nature of sites of religious or cultural significance, as well as ways to avoid, mitigate, or minimize adverse effects on such sites. The Air Force regulation was issued as a guideline, so application across Air Force units may be uneven.

Tribal Recognition Status

DoD cultural resource managers require some understanding of the U.S. Federal recognition of Native Americans. DoD-Native American consultation regarding cultural resources can include both recognized and unacknowledged groups. The laws described above require consultation with Federally recognized Native American groups. Some laws, such as NAGPRA, limit the participation of non-Federally recognized tribes and groups in specific ways; human remains and cultural objects can only be repatriated to Federally recognized tribes. As a result, some installations have created special consultation programs to deal with NAGPRA issues apart from their general consultation program. Similarly, DoD installations, as agents of the U.S. government, can only enter into government-to-government relationships and binding agreements with Federally recognized groups. The U.S. government publishes a list entitled "Indian Entities Recognized and Eligible to Receive Services From the U.S. Bureau of Indian Affairs (Federal Register Vol. 58, No. 202, Pp. 54364-54369).

In contrast to these more restrictive laws, the use of a DoD installation for plant gathering or conducting religious ceremonies can be extended to all Native Americans under the American Indian Religious Freedom Act (AIRFA). Native American individuals and groups can also provide valuable information for cultural resources management, regardless of their Federal recognition status. For example, at Edwards AFB the descendants of the Native Americans who occupied the western Mojave Desert were interviewed to gain information about the use of plant and animal resources of the desert, and their recommendations about preservation of those resources were incorporated into the installation's cultural resources report (Bean and Vane 1981). Similarly, six groups of Native Americans, none of which were Federally recognized tribes at the time, were consulted in the cultural resources inventory that was conducted as part of the base closure activities at Fort Ord, California (Whalley 1994). Additional information about those DoD installations is provided in Chapter Eight of this report. This section will briefly describe the notion of U.S. Federal recognition and its potential relevance to DoD cultural resource managers.

Federal recognition is a political decision that is broadly derived from treaty obligations of the U.S. toward tribes and provides the legal basis for the provision of health, educational, and other BIA services (Weatherhead 1980). Native American groups that "were at some time in the past simply forgotten or overlooked in the haste of opening up the frontier, or who managed to elude removal, have later found it quite difficult to persuade the government to officially recognize their existence" (Greenbaum 1985: 362). According to Greenbaum (1985), unrecognized tribes are found most often along the eastern seaboard, in the south, and along the west coast. Among those groups, identity has often been maintained within families, and their communities have frequently faced institutional segregation. Beginning in 1978, unrecognized Native American groups became eligible to petition the U.S. government, through the BIA, for "acknowledgment" as tribes (25 CFR 83). As a result, the recognition status of some Native American groups is still in question.

If the Federal recognition status of a Native American group changes in the course of consultation regarding NAGPRA, decisions that are made as a result of that consultation may change. The Federal acknowledgment process involves: (1) submission of a letter of intent from the Native American group to the BIA; (2) collection of documentation and evidence by the Native American group and preparation of a petition; (3) submission of a petition for acknowledgment from the Native American group to the BIA; (4) preliminary review by the BIA and identification of deficiencies, if any; (5) remediation of deficiencies, if any, by the Native American group; and (6) final consideration and determination of eligibility by the BIA. The process may take many years to complete, depending on the circumstances of the Native American group. Consideration of the petition by the BIA (step 6) takes approximately two years. The status of petitions is public information, so individuals can call the Federal Acknowledgment Office to find out where in the process any group is.

Legal Summary

Four prior studies funded through the DoD Legacy Program found concerns about cultural resources management at many DoD installations, and identified the need for improvement. The DoD consultation programs with Native Americans were also found to be inadequate. Consultation with Native Americans regarding cultural resources on DoD lands is a statutory requirement set forth in five major Federal laws and one military regulation. Translating laws and regulations into action at the installation level, however, can be difficult. Therefore, this report provides information for understanding the laws and how they can be better implemented within the DoD.

Organization of Report

This report has been produced to better understand and help establish relationships between DoD installations and Native American having traditional ties to installation lands and lands affected by DoD activities. The following chapters: (1) discuss cultural resources from a Native American perspective; (2) outline a model for consultation with Native Americans regarding cultural resources; (3) examine existing relationships between DoD installations and Native Americans to establish a national picture; and (4) demonstrate where DoD installations have consultation relationships with Native Americans.

Summary of Major Findings

It is useful to select from among the many important findings of this report to present a few that require most attention. Naturally each military installation will have special information needs that may be served by other findings. The following is a list of key findings at the time of this study (1994).

*

Native American people have a tremendous variety of cultural resources located on lands where they once lived, some of which can accurately be referred to as sacred sites.

*

Military lands, maneuver areas, and operating areas often are places of cultural significance to Native Americans.

*

The legal and moral rights of Native Americans to have access to and request protection of cultural resources has been recognized by the U.S. Congress. Also the DoD, as part of the U.S. Government, is a trustee of American Indian interests and well-being.

*

Consultation is a process of establishing relationships that can lead to the identification and protection of Native American cultural resources.

*

Twenty-three percent of the military installations addressed in this essay were known to interact with Native Americans in managing DoD cultural resources.

*

Thirty-six percent of the U.S. Army's installations were known to interact with Native American in managing DoD cultural resources, the highest of the four services.

*

Larger DoD installations were more likely to interact with Native Americans as part of these installations' cultural resource management programs than smaller ones.

*

DoD installations consulted with Native Americans about the treatment of archaeology and historic sites (83% of time), burials (52% of time), sacred sites (22% of time), plants (19% of time), and animals (17% of time), among those installations that are known to interact with Native Americans about installation management.

*

The U.S. Air Force was the only service with a formal policy regarding DoD-Native American consultation.

*

Among those installations that interact with Native Americans, 14% of the DoD installations are known to have allowed Native Americans access to sacred sites and 33% of the installations have allowed Native Americans access to other cultural resources.

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