The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations

The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations Amanda M. Marincic * ABSTRACT: The National Historic Preservation Act (“NHPA”) of 1966 established a federal policy of preserving historic places at the federal, state, and local level. In 1992, the Act was amended to include sites of cultural and religious significance to Native Nations on the National Register of Historic Places. This Note argues how that inclusion, while a noble step in the right direction for Native Nation relations with the federal government, did not go far enough to adequately protect the cultural and religious sites of Native Nations. This Note discusses the NHPA’s effectiveness in protecting the cultural and religious sites of Native Nations, the origins and purpose of the Act, the statutory framework of the Act, and the shortcomings of the Act. The Note concludes by recommending that Congress amend the NHPA to require that a federally-approved or funded project must not have any adverse effects on a cultural or religious site in order to move forward, unless all of the involved parties agree to move forward despite the adverse effects. I. INTRODUCTION ........................................................................... 1778 II. BACKGROUND ............................................................................. 1781 A. T HE N ATIONAL H ISTORIC P RESERVATION A CT AND C ULTURAL C ONFLICTS ........................................................... 1781 B. T HE S TATUTORY F RAMEWORK OF THE NHPA ........................ 1786 C. T HE A DMINISTRATIVE P ROCEDURE A CT ................................. 1792 D. T HE C IRCUIT S PLIT ON W HETHER THE NHPA C ONFERS A P RIVATE R IGHT OF A CTION .................................................... 1793 III. PROBLEMS AND ANALYSIS ............................................................ 1794 * J.D. Candidate, The University of Iowa College of Law, 2018; B.A., University of St. Thomas, 2015. I would like to thank the Iowa Law Review editorial boards for Volumes 102 and 103 for their help in editing this Note. I would also like to thank my family and friends for their support, especially my parents, Patricia and Andrew Marincic, and my sister, Emily. 1778 IOWA LAW REVIEW [Vol. 103:1777 A. T HE S TATUTORY AND R EGULATORY L ANGUAGE OF THE NHPA .................................................................................. 1795 1. The Statute and Regulations Provide Little Actual Protection to Native Interests ......................... 1795 2. Section 106 Consultation is Too Easily Met .............. 1796 3. The Statute and Regulations Inherently Disrespect Sovereign Immunity ................................. 1797 B. T HE L ACK OF A DEQUATE J UDICIAL R EVIEW ............................. 1799 1. Standard of Review of Agency Decisions ................... 1800 2. The Circuit Split on the Private Right of Action....... 1802 3. Waiver of Sovereign Immunity ................................... 1804 IV. RECOMMENDATIONS ................................................................... 1806 A. T HE NHPA S HOULD B E A MENDED TO P ROVIDE THAT AN U NDERTAKING C ANNOT A DVERSELY A FFECT A H ISTORIC S ITE ...................................................................................... 1806 B. C ONGRESS S HOULD A MEND THE NHPA TO E XPLICITLY C ONFER A P RIVATE R IGHT OF A CTION .................................... 1808 V. CONCLUSION .............................................................................. 1809 I. INTRODUCTION Since Europeans first set foot in North America, conflicts between Native Nations and North American governments have been rampant. Both Native Nations and the United States’ government have attempted to ease tensions, with some attempts more genuine than others. However, the United States’ government has consistently disrespected Native Nations. From broken treaties, forced assimilation, brutal massacres, and mass removal of entire tribes to different parts of the country, the United States’ disregard toward Native Nations’ lives and cultures has been a consistent theme in Native American relations. 1 For centuries, North American governments recognized the sovereignty of Native Nations, primarily evidenced by treaty-making. 2 In 1871, however, the United States effectively broke with this tradition by discontinuing treaty-making, an action which effectively relegated Native Nations to a position 1. For an eloquent account of the major points of Native Nations’ interactions with the early European settlers and a more detailed narrative of the western Native Nations’ dealings with the growing United States, see generally DEE BROWN, BURY MY HEART AT WOUNDED KNEE: AN INDIAN HISTORY OF THE AMERICAN WEST (1970). For a rich discussion of Euro-Americans’ changing perception of the Native peoples from desired allies to “inferior races,” see generally RICHARD WHITE, THE MIDDLE GROUND: INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES REGION, 1650–1815 (2d ed. 2011). 2 . See WHITE, supra note 1, at 435–36. 2018] THE NATIONAL HISTORIC PRESERVATION ACT 1779 unequal to the federal government. 3 The effect of this action was compounded by the passage of the Dawes Act in 1887. The Dawes Act gave the president of the United States the power to unilaterally divide reservation land to allot the land to individual Native Americans. 4 Furthermore, the Act asserted federal law over Native Americans. 5 The Dawes Act not only forced upon Native Americans Western views of property ownership and individualized society, but the Act also effectively extended the authority of the federal government directly over Native Americans on reservations. 6 Since the passage of the Dawes Act, tensions between Native Nations and the federal government have not eased. The National Historic Preservation Act (“NHPA”), as amended in 1992 to include Native cultural and religious sites on the National Historic Register, is arguably a step in the right direction for Native American relations. However, the NHPA does not account for the cultural differences that prevent understanding of Native Nations’ religions and cultures. This failure of understanding in turn prevents adequate protection of Native sites. This Note argues that, while a commendable step, the NHPA does not go far enough in protecting Native Nations’ cultural, religious, and historic sites. 7 The NHPA’s ability to effectively protect Native Nations’ cultural sites is hampered by the difficulties the statute itself imposes, as well as the cultural barriers between Native Nations and the United States. The NHPA provides one of the few avenues for Native Nations to protect their cultural sites. 8 Strengthening the NHPA would not only provide more effective protection of Native Nations’ cultural sites, but it would also signal to Native Nations that the United States is serious about respecting Native Nations’ culture, religion, and sovereignty. Beginning in 2016, the Standing Rock Sioux Tribe engaged in a highly-publicized, year-long legal battle with Energy Transfer Partners regarding the construction of the Dakota Access Pipeline (“DAPL”). The Tribe initially 3. Charles Rennick, Comment, The National Historic Preservation Act: San Carlos Apache Tribe v. United States and the Administrative Roadblock to Preserving Native American Culture , 41 NEW ENG. L. REV. 67, 69 (2006) (citing Sharon O’Brien, Tribal Governments , in AMERICAN INDIANS AND U.S. POLITICS: A COMPANION READER 4, 42 (John M. Meyer ed., 2002)). 4. Dawes Severalty Act of 1887, ch. 119, 24 Stat. 388, 388 (repealed 2000). 6 . Id. 7. The NHPA explicitly states that agencies must consult Native tribes when an undertaking will affect property that has a religious or cultural connection to those tribes. Throughout this Note, “cultural sites” includes both religious and cultural sites. 8. Another avenue is the First Amendment, which is often ineffective. See Peter J. Gardner, The First Amendment’s Unfulfilled Promise in Protecting Native American Sacred Sites: Is the National Historic Preservation Act a Better Alternative? , 47 S.D. L. REV. 68, 72 (2002) (“[T]he First Amendment may not ‘be asserted to deprive the public of its normal use of an area,’ and the use by . . . ‘relatively few persons of public lands for religious purposes does not release the government from its statutory responsibility to manage such lands for the benefit of the public at large.’” (footnotes omitted)). 1780 IOWA LAW REVIEW [Vol. 103:1777 argued that the DAPL’s construction would destroy ancient burial sites and potentially poison their only source of drinking water, the Missouri River. 9 The Tribe also argued that the agency involved in the project, the Army Corps of Engineers, did not fulfill the obligations required by the NHPA. 10 For a while, the fate of the DAPL was uncertain, with permits for construction being denied and then granted. 11 After the Army Corps of Engineers granted the permit pursuant to President Trump’s memorandum, construction on the DAPL was completed. 12 After several failed attempts by the Standing Rock Sioux to halt operation of the DAPL, a federal district judge ruled in June 2017 that the environmental impact studies done on the DAPL were inadequate. 13 While this ruling is a small victory for the Standing Rock Sioux Tribe, the NHPA was useless in protecting its cultural sites from significant damage. Part II of this Note introduces the NHPA and provides the historical and cultural background information necessary to understand the full implications of the NHPA. Part II.A discusses the NHPA and the cultural conflicts inherent in its construction. Next, Part II.B explains the statutory framework of the NHPA, while Part II.C discusses the role of the Administrative Procedure Act in enforcing the NHPA’s requirements. Finally, Part II.D examines the circuit split on whether the NHPA confers a private right of action...