The recent government shutdown illuminated our country’s deep concern for its official national monuments. When federal personnel erected barricades blocking access to cultural icons in Washington, D.C., the public protest was immediate and loud. Meanwhile, Congressional representatives sitting on the Natural Resources and Oversight and Government Reform Committees — although unable to perform their most basic functions like passing a budget or funding governmental operations — believed it necessary to spend time holding hearings to investigate the closure of those U.S. landmarks held sacred by Americans. Sadly, the recent concern for American nationally recognized monuments, parks and landmarks starkly contrasts the lack of societal concern for Indian country’s sacred places, which perpetually face permanent “shutdown” — if not outright destruction — by looters, private developers, and government agencies alike.
In Indian Country, ancient village sites, treaty-protected fishing sites, sacred landmarks, and tribal burial grounds are routinely damaged or demolished by private and public developers. The desecration has resulted from a wide array of projects, ranging from energy development to highway expansion. Too often, the commercial proponents and governmental permitting agencies show open disdain for the voice of tribal governments seeking to protect their few remaining cultural monuments. If they don’t overtly ignore legal protections afforded to tribal cultural resources, they more often than not do the bare minimum required under federal and state law, which, in the end, is not much at all.
Take the wanton acts of the City of Oak Harbor, Washington. Determined to complete a road project through a known Indian archaeological site, the city bulldozed tribal burial grounds and unearthed human remains, treating ancestors in the same manner as one would treat garbage. Some ancestral remains were found in piles marked “free dirt,” open for the taking. The Washington State Department of Archaeology and Historic Preservation “warned the city about the likelihood of cultural remains and recommended that the city hire an archeologist and create a plan to deal with inadvertent discoveries of cultural materials.” The city committed to follow the state’s recommendations, but in the end broke its promises and destroyed an ancient tribal burial ground. Now it faces a class-action lawsuit.
Likewise, California’s state transportation agency is now looking to “make amends” with the Sherwood Band of Pomo Indians after a sacred site was “not just destroyed [but] eviscerated” during excavation for a highway bypass project near the town of Willits. Caltrans reportedly knew the site was located in the project area “but — due to a typographical error, poor geographical descriptions or mapping problems — believed it was located ‘well away’ from the actual construction site.” No matter what truly happened in Oak Harbor, Washington and Willits, California, the permanent harms have been inflicted, and they cannot be adequately mitigated, regardless of monetary damages awarded or any ordered repatriation plan.
Mitigation is the magic regulatory word governments and project proponents use to legally justify the destruction of tribal cultural properties. The regulations implementing Section 106 of the National Historic Preservation Act, for example, require federal agencies charged with review of projects that may destroy tribal sacred sites to do nothing more than analyze and develop “alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects” on sacred tribal sites. This is ultimately a toothless requirement, consistent with the overall hollow “procedural” mandates of the NHPA and the National Environmental Policy Act, as well as similar state laws that purportedly protect indigenous cultural properties. Put another way, as long as the destruction of a sacred Indian site is “mitigated” in the eyes of federal bureaucrats, that destruction is deemed legal, and affected indigenous communities are left desperate to prevent the permanent and irreparable harm to their people, history, and culture.
To illustrate, a federal agency may legally approve a project to take open public lands on which an ancient village site may have been situated, and transform them into thousands of acres of wind turbines. This type of action generally results in blocking tribal access to traditional foods, medicines, and ancestral hunting grounds, if not the complete destruction of sacred cairns and other sites. This destruction is considered legal so long as the responsible federal agency has gone through the motions of the Section 106 process and provides some — in reality, any — level of “mitigation” — which is often illusory and, in fact, not really mitigation at all. If all of the procedural boxes have been checked, the project very likely cannot be stopped through any legal action. And the ongoing damage may continue undeterred, and unnoticed or unheralded by everyone but the Indigenous People whose culture is irreparably harmed in the process.
Imagine the American outcry that would result if a highway was constructed through part of Arlington National Cemetery and the government contractor tossed bulldozed human remains into piles marked “free dirt.” Imagine if a company could build a wind farm on the site of the Battle of Gettysburg, and was required by the Department of the Interior to do nothing more than mitigate for the “adverse impacts” to the national landmark — perhaps by putting up a sign to advertise the historic significance of that site or funding a video recounting the battle that was fought there. Unfortunately, these are the sorts of “mitigation” efforts that are contrived in exchange for damages to Indian Country’s sacred cemeteries and landmarks.
The disparate legal protections afforded to official national monuments and those aimed to protect sites sacred to American Indians will not end without a significant change to relevant laws. Under the current state of the law, those who target areas for development requiring damage to or destruction of the few sites of indigenous cultural significance remaining face nothing more than minor regulatory speed bumps. And these speed bumps do nothing substantive to prevent the wholesale destruction of Indian country’s monuments.
Sacred Indian sites deserve, at the very least, as much protection and reverence as we afford to America’s officially recognized national monuments. To accomplish such a goal, we need a law protecting Indian Country’s monuments with more than hollow procedural requirements. We need laws with teeth that actually protect those sacred tribal sites that haven’t yet been wiped from the face of the earth to make room for a new power line, a field of wind turbines, or wider highways.
Joe Sexton is Of Counsel at Galanda Broadman, PLLC. Practicing out of Yakima, Washington, he represents tribal governments and members in matters of cultural property and environmental resource protection.