American Indian sacred sites

Yakama Nation Sues US Fish & Wildlife Service over Rattlesnake Mountain Bus Tours that Implicate Sacred Sites

Matthew L.M. Fletcher1 Comment

Here is the complaint in Confederated Tribes and Bands of Yakama Nation v. USFWS (E.D. Wash.):

Yakama v USFWS – wildflower tours

An excerpt:

This action relates to agency decisions and actions by the U.S. Fish and Wildlife Service and named officials thereof to conduct guided bus tours for members of the general public on Rattlesnake Mountain within the Hanford Reach National Monument (HRNM). The mountain is considered by the plaintiff to be of great religious and cultural importance, and for that reason the site has been federally designated as a Traditional Cultural Property (TCP) under the NHPA. The defendants concluded in April 2012 that the guided wildflower tours will have no adverse effect on the TCP, and plaintiff seeks judicial review of this finding. In addition, the defendants are seeking judicial review of a final agency action proceeding with scheduled public wildflower tours in 2014 despite a lack of concurrence by both the plaintiff and the State Historic Preservation Officer (SHPO), and subsequent violations of consultation procedures required by the NHPA.

United Nations Human Rights Committee on American Indian Sacred Sites

Matthew L.M. Fletcher

The Committee issued a report from its recent review the U.S. late last week.

Of note:

Rights of indigenous people

25. The Committee is concerned about the insufficient measures being taken to protect the sacred areas of indigenous peoples against desecration, contamination and destruction as a result of urbanization, extractive industries, industrial development, tourism and toxic contamination. It is also concerned about restricted access of indigenous people to sacred areas essential for preservation of their religious, cultural and spiritual practices and the insufficiency of consultation conducted with indigenous peoples on matters of interest to their communities (art. 27).

The State party should adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.

Ninth Circuit Affirms Interior’s Decision to Authorize Gold Mine on Mt. Tenabo

Matthew L.M. Fletcher3 Comments

Here is the order in Te-Moak Tribe of Western Shoshone Indians of Nevada v. Dept. of Interior:

CA9 Unpublished Memorandum w Dissent

An excerpt from the dissent:

The BLM’s analysis of why E.O. 13007 did not apply was faulty for three reasons: the analysis failed to recognize that comments regarding the proposal did point to the area where the mine is being built as an area in which worship occurs; it demanded quantification of that use as a condition of Executive Order coverage, when no such quantification is necessary; and it required greater specificity of location than comports with Shoshone religious practices. As to the last point, to require greater specificity would interfere with Shoshone religious practices, as those practices appear to regard certain recognized natural areas, rather than specific set locations, as places for worship.

Briefs are here.

Record of Decision in Kennecott Mine Adminstrative Adjudication

Matthew L.M. Fletcher2 Comments

Here: Kennecott FDO

Of note, the last paragraph on page 8 reads:

Of the six features specifically enumerated in Rule 202(2)(p), four unquestionably occur in structures: residential dwellings, schools, hospitals and government buildings. The other two, places of business and places of worship, could be reasonably construed as not requiring a structure. However, Rule 202(2)(p) contains a catch-all provision that the PFD did not address: “or other “buildings used for human occupancy all or part of the year.” R 425.202(2)(p). This inclusion of this phrase means an EIA must identify all buildings, including those used for the six enumerated features, in the proposed mining area and affected area. Consistent with the rules of statutory construction discussed above, I conclude, as a Matter of Law, Rule 202(2)(p) applies only to buildings used for human occupancy. I further conclude, as a Matter of Law, because Eagle Rock is not a building used for human occupancy, there is no basis to require the EIA identify and describe the feature as a “place of worship.” Concomitantly, the EIA submitted by Kennecott complies in all respects with § 62505(2)(b) and Rule 202, and I so conclude, as a Matter of Law.

Emphasis added.

So DEQ seems to have concluded that an outdoor American Indian sacred site is not a “place of worship” under the relevant law because it is not inside a building (as “used for human occupancy”). In other words, no American Indian place of worship can ever be a “place of worship” unless it’s inside a building.