Native American Sacred Sites Produced by the Sacred Land Film Project

IS NOTHING SACRED?

Corporate Responsibility for the Protection of Native American Sacred Sites Produced by the Sacred Land Film Project

Principal Author: Lyuba Zarsky

Research and Editing: Christopher McLeod and Roz Dzelzitis

Cover and Section Opener photos: Christopher McLeod

Acknowledgements

Thanks to Newman’s Own, Inc., Grousbeck Family Fund and Nathan Cummings Foundation for supporting the research, writing and publication of this report. About the Sacred Land Film Project Thanks to Winona LaDuke, Vernon Masayesva, Earth Island Institute’s Sacred Land Film Project Chris Peters, Mark LeBeau, Susan Peacock, produces a variety of media and educational Lloyd Kurtz, Lily Donge, Jessica Abbe, Vicki materials — films, videos, DVDs, articles, pho- Engel, Ashley Tindall, Michelle Berditschevsky, tographs, school curricula materials and Web Edward Wemytewa, Jack Trope and Courtney site content — to deepen public understand- Coyle, for reviewing and commenting on the ing of sacred places, indigenous cultures and many drafts of the document. environmental justice. Our mission is to use journalism, organizing, and activism to rekindle Thanks to Marjorie Beggs of the San Francisco reverence for land, increase respect for cultural Study Center for editing the draft manuscript diversity, stimulate dialogue about connections and writing summaries, and to Pat Koren of between nature and culture, and protect sacred Kajun Design for graphic design and layout, lands and diverse spiritual practices. For the and to Laurie Wigham for map design. last decade, led by Project Director Christopher (Toby) McLeod, we have focused on the production and distribution of the documentary film, About the Author In the Light of Reverence. We are currently developing a four-part series on sacred places Lyuba Zarsky is an internationally recognized around the world — Losing Sacred Ground. scholar and advocate for global sustainable development. Trained academically as an econo- © 2006 Sacred Land Film Project. mist, she is currently Senior Research Fellow All rights reserved. at the Global Development and Environment Institute at Tufts University in Boston. She has You can download a copy of this report from published widely in the areas of international www.sacredland.org/PDFs/CSR.pdf investment, human rights and the environment, and corporate social responsibility. Her most recent books are Enclave Economy: Foreign Sacred Land Film Project Investment and Sustainable Development in P.O. Box C-151 Mexico’s Silicon Valley (with Kevin Gallagher) La Honda, CA 94020 and Human Rights and the Environment: www.sacredland.org Conflicts and Norms in a Globalizing World. 650.747.0685 Contents Foreword by Winona LaDuke 2 Executive Summary 4

Sacred Sites 7 An Introduction 8 Sacred Sites and the Public Interest 9 Corporations and Sacred Sites 10 Tools for Protecting Sacred Sites 11

Conflicts With Corporations Over Sacred Sites 17 Introduction to Case Studies 18 Glamis Gold Ltd. and Indian Pass 19 Anschutz Exploration Corp. and Weatherman Draw 26 Calpine and Medicine Lake Highlands 31 Peabody Energy and Black Mesa’s Navajo Aquifer 38 Salt River Project and Zuni Salt Lake 45 Access Fund, Cave Rock and Devils Tower 52

Toward Corporate Good Practice 55 What Motivates Corporations? 56 Corporate Social Responsibility 58 What Is Good Corporate Practice on Sacred Land? 61 Conclusion 65

Bibliography 68 Appendix One: Principles for Environmental Responsibility 69 Appendix Two: Suncor Energy’s Aboriginal Affairs Policy 70 Appendix Three: Calvert’s Indigenous Peoples’ Rights Policy 73 Appendix Four: U.S. Laws Regarding Sacred Sites 74 Endnotes 77 Foreword

foreword

Future Positive | Ji misawaabandaaming by Winona LaDuke

orporations are increasingly finding that The terms of trade and relationship that led C ethical behavior is also good business to the rise of the major corporate world powers practice, and many are rising to the challenge are no longer intact. Civic society will not of making that transition. Shareholders at accept poisoning of water, spraying of schools, Goldman Sachs, Calpine and Peabody Energy, product malfunctions, or corruption in corp along with major employee and pension orate management. Nor should civic society funds like The California Public Employees’ tolerate the destruction of sacred places. There Retirement System and members of the are no more frontiers to exploit, because within Coalition of Environmentally Responsible all “frontiers” are civic societies — perhaps not Economies are demanding a higher standard always American suburbs, but societies and for corporate behavior. Corporations are begin- peoples with rights, aspirations and deep ning to acknowledge that energy efficiency relationships to place. saves millions of dollars and protects the In the Ojibwe language, omaa akiing means environment; water efficiencies reduce water bills and create ethical relationships with communities; redesigning production systems to recycle waste generates byproducts that create new revenue sources. Developing production systems that do not destroy the natural wealth upon which we all rely is the key to longevity. Starbucks’ rise to world dominance — one new store a day — comes at the same time as it purchases fair trade coffee and develops a worker benefit package that challenges those of corporations like Wal-Mart. CITGO’s social investments strengthen rural and indigenous communities, and corporations like BP have seen the wisdom of “shedding their baggage” — in this case carbon — by moving into renewable energy, the fastest growing sector in the market. BHP Billiton, the largest mining corporation in the world, has negotiated with the Mole Lake band of Ojibwe in Wisconsin for return of their traditional territory rather than digging a zinc and copper mine that would Christopher McLeod Christopher have polluted Mushgigagamongsebe (The Little River of Medicines) and wild rice growing lakes downstream that are essential to cultural survival. Foreword

making a positive future, nurturing the health origins, yet we all rely on the same air, water of future generations — which one would hope and land for our sustenance. Protecting sites is a goal of our civic society. sacred to indigenous peoples offers corporate Omaa akiing. From the past to the future and government institutions an amazing this land has many stories: when the giant lay opportunity to foster a truly multicultural, down to sleep, from whence the buffalo and sustainable society. first humans came, where the Great Tree of What sort of future omaa akiing, here on Peace stood. Each society, each community, this land, will we make with our hands, our each corporation has a different relationship to machines, our public policies, our minds? the land, and through these arise today’s Corporations and governments are part of conflicts. civic society, and they need to play a vital and A society that consumes a third of the positive role. This report offers a starting place world’s resources requires more land and for fundamental change — one that can create makes bigger handprints each year in succes- a healthy, multicultural society omaa akiing. sion. Those handprints have caused a great loss The places and peoples on the following pages of life — human, four-legged, winged, finned, are an inspiration. Their stories will continue and those with roots. We all must recognize to be told, and we welcome new, positive that the land is the natural wealth that sustains characters. our society, and its preservation is essential if civic society is to grow and survive. Winona LaDuke (Anishinaabeg) lives on Federal, state, county and corporate institu- the White Earth Reservation in northern tions all are relatively new on this land, and Minnesota and is Program Director of Honor these institutions are mostly unfamiliar with the Earth and Founding Director of White the stories of the land as they are remembered Earth Land Recovery Project. A graduate of and told by diverse indigenous communities. Harvard, her books include: Last Standing That is not surprising: Virtually none of these Woman (fiction),All Our Relations (non-fic- stories, which are facets of North American tion), In the Sugarbush (children’s non-fic- history, are taught in high school or college tion), The Winona LaDuke Reader and courses. Recovering the Sacred: The Power of Naming Corporations, governments and native and Claiming (non-fiction). Winona is an communities may have different cultural advisor to the Sacred Land Film Project. Executive Summary Executive

Executive SUMMARY

onflicts between Native Americans and investors, NGOs, faith-based groups, unions, C U.S. corporations over threats to culturally business magazines, opinion makers, interna- significant places are escalating. Native tional environmental and human rights American groups have been able to stop or organizations, and companies themselves. mitigate the destructive effects of some While leading CSR companies have insti- corporate developments, but each battle is long tuted environmental management policies, and costly, and new threats continue to emerge. few have adopted codes of conduct on human To raise the protection of sacred sites to the rights, and fewer still have policies that protect level of a social norm, innovations are needed indigenous rights. Including sacred sites — not only in law but also in corporate prac- protection within a human rights framework tice. would situate advocacy on this issue at the corporate social responsibility movement’s Part I of this report defines sacred sites — cutting edge. places that hold “significant spiritual value” for Native American tribes, nations and bands — Part II presents case studies of six conflicts and suggests that protecting such sites is in the between Native Americans and corporations. public interest. It is part of our guarantee of In several of the conflicts, the willingness of freedom of religion; it reflects our cultural, both sides to engage each other in dialogue historic and ecological values; it can be viewed generated mutually acceptable outcomes. Most as a restorative justice measure; and it is a good of the cases stretch back decades, and all entail fit with the spiritual values of non-Indian complex interactions between the participants. Americans, especially those in faith-based and In brief: environmental groups. b Twenty years ago, Glamis Gold began Although four federal laws acknowledge the acquiring mining claims in Indian Pass in religious and historic significance of American southeastern California, the desert homeland Indians’ sacred sites, no laws actually mandate of the Quechan Indian Nation. Glamis’ open- protection of those sites or Indians’ access to pit, cyanide heap-leaching process can scar the them. landscape and pollute groundwater with Corporations and native groups often look cyanide. Clinton’s Department of the Interior at the same landscape and see different things. (DOI) secretary denied Glamis’ mining In conflicts, they typically sit on opposite sides proposals, but Bush’s secretary rescinded it. with the government serving as arbiter, and After a 2003 California law gave sites at Indian only rarely do they conduct two-way consulta- Pass some protection, Glamis filed suit against tions aimed at a win-win resolution both sides the U.S. government under the provisions of can live with. NAFTA, asking for $50 million in damages. Education and shaping society’s values are (A hearing is scheduled for March 2007.) key in bridging the gap between sacred sites and property rights. b Weatherman Draw in south-central In the past decade, an emerging corporate Montana is a 1,000-year-old site sacred to social responsibility (CSR) movement is many tribes for its cliff paintings. Anschutz defining new values and norms for good Exploration Corp. acquired two leases to practice in relation to social and environmental mineral rights there in 1994. After the Bureau performance. The movement is composed of of Land Management (BLM) approved an Executive Summary Executive

exploratory well, leaders from 10 tribes plus control of the lake and some surrounding land allied non-Indian groups appealed the decision from the federal government, which, along and launched an intensive media campaign. with the state of New Mexico and private Anschutz dropped its plans and donated the owners, still controls 97 percent of the sanctu- leases to the National Trust for Historic ary area. The Salt River Project (SRP), the Preservation. nation’s third largest utility, got a permit to

build Fence Lake Coal Mine 11 miles from b Various tribes have used Medicine Lake Zuni Salt Lake. For 20 years, the Zunis built Highlands in northeastern California as a coalitions and challenged SRP legally to stop sanctuary and place of healing for 10,000 years. proposed groundwater pumping that threat- BLM granted Calpine Corp., the world’s largest ened to dry up the lake. SRP dropped its mine supplier of geothermal energy, 43 leases there plans in 2003, but two months later, BLM starting in the mid-1980s. Between 2000 and announced an auction of exploration rights for 2004, one power plant project was denied, then gas and oil on other land near Salt Lake. rescinded; both sides filed suits and appeals; native coalitions dropped opposition to one b Cave Rock, an ancient volcanic remnant project in exchange for a 5-year moratorium on on Forest Service land on Lake Tahoe’s eastern other projects; the tribes found new allies in shore in Nevada, is sacred to the Washoe the socially responsible investment community. people, who have lived in the area more than A May 2004 lawsuit brought by the Pit River 10,000 years. They want to ban sport climbing Tribe and others against Calpine and the at the rock, which attracts climbers from all federal government is pending. Meanwhile, over the world. Unsuccessful voluntary bans Calpine has filed for bankruptcy. on commercial climbing were followed by lawsuits filed on behalf of climbers by the b Beneath the surface of Black Mesa in Access Fund, a nonprofit climbers group. In northeastern Arizona, home to 27,000 Navajos 2003, the Forest Service issued a decision and 10,000 Hopis, are billion of tons of coal and banning rock climbing as well as off-road a huge underground lake. In a deal brokered by motorized vehicle use at Cave Rock. DOI 35 years ago, the two tribes agreed to lease Opponents appealed, lost, then filed a coal and water to Peabody Energy, the world’s federal lawsuit, which the Federal District largest private-sector coal company. By 2001, Court dismissed. The case currently is on Peabody had pumped 40 billion gallons of appeal. A similar conflict on National Park water from the aquifer to slurry the coal. Service land at Devils Tower in Wyoming has Surface water is disappearing and the tribes’ led 85 percent of climbers to refrain from traditional lifestyle is threatened with extinc- climbing the sacred monolith during annual tion. In a hard-won consensus, the two tribes, Indian ceremonies each June. formerly at odds with each other, demanded that Peabody shut down the Black Mesa coal Part III uses the lessons learned in the case slurry line by the end of 2005, and when the studies to define what corporate good practice Mohave power plant was shut down for air might look like with regard to protecting quality violations, the slurry ceased operation. sacred sites. At one time or another, the cases b For the 1,500 years that the Zunis have shared common threads, regardless of their lived near Salt Lake in northwestern New outcome: unity among native groups; active Mexico, they and other tribes have collected partnerships between Indian and non-Indian lake salt for religious ceremonies and used the allies; counterproductive laws; tribal ground- area surrounding the lake as a sacred, neutral ing in spirituality; perseverance and vigilance; sanctuary zone. In 1985, the Zuni regained regulatory oversight of the area; strong Executive Summary Executive

dependence on legal processes; legislative b Ensure that sensitive, confidential informa- advocacy; economic sticking points; insistence tion is treated with respect and not made that tribes had no right to say “no”; and lack of public. early consultation. b Educate corporations about why and how This last element is where the most change is sacred places are important to Native possible regarding good practice. At the heart Americans and why it is in the public of fair dealing is “free, prior and informed interest to protect such places. consent” by indigenous communities to development on or near sacred places. Consultation b Stimulate ongoing dialogue between the is most productive when the involved parties involved indigenous groups, corporations adopt these goals: and, where appropriate, federal, state and other agencies. b Inform Native Americans about proposed plans for a corporate project and consult b Share long-range planning and monitoring with both tribal government and traditional of cultural and other resources at sacred people as early as possible in the project sites and ensure adequate funding for planning process. monitoring. b Build ongoing relationships between b Involve all of the appropriate Native corporations and traditional cultural American leaders in decisions about leaders and tribal officials that transcend management practices that appropriately an individual project. protect sacred places and cultural resources. b Inform tribal peoples about the corporation and its goals, objectives, values and ways of decision-making. PART ONE

Sacred Sites An Introduction Introduction

acred sites are places of significant spiritual participants may range from one individual Svalue for Native American tribes, nations to a large group.2 and bands. Likened to naturally formed churches, they are, according to Indian rights Some sacred sites are discrete geological activist Suzan Harjo, “lands and waters where formations, such as Bear’s Lodge/Devils Tower people go to pray.”1 in Wyoming, while others encompass entire Sacred sites are integral to the practice of landscapes, such as the Black Hills of South native people’s land-based religions. In a 1979 Dakota or the Indian Pass trails that span report to Congress following passage of the hundreds of miles from southern California to American Indian Religious Freedom Act, the the Mexican border. The religious uses of Carter administration described the impor- sacred sites also vary — prayer circles, burials, tance of sacred sites: visioning, purification and healing. In some cases, only religious practitioners or a tribe’s The Native peoples of this country believe spiritual elders may use the sites. that certain areas of land are holy. These Corporate leaders and government land lands may be sacred, for example, because of managers often ask: Where is the sacred site? religious events which occurred there, Can its boundaries be delineated? The answer is because they contain specific natural usually no. Furthermore, native activists products, because they are the dwelling themselves increasingly challenge the term place or embodiment of spiritual beings, sacred site as inadequate and inaccurate, because they surround or contain burial because individual sites are usually part of a grounds or because they are sites conducive web of culturally significant spiritual locales to communicating with spiritual beings. spread across a larger ancestral landscape. This There are specific religious beliefs paper uses interchangeably the terms sacred regarding each sacred site which form the site, sacred place, sacred land, cultural land- basis for religious laws governing the site. scape and sacred landscape. These laws may prescribe, for example, when Sacred places are found on reservations, and for what purposes the site may or must public lands and private lands. In the United be visited, what ceremonies or rituals may or States, many of the most visible and well- must take place at the site, what manner of known sites are on public lands, especially in conduct must or must not be observed at the the West. When Indians were relocated or site, who may or may not go to the site and confined on reservations in the 19th century, the consequences to the individual, group, ownership of their ancestral lands was claimed clan or tribe if the laws are not observed. by the federal government to preserve future The ceremonies may also require prepa- options for commercial development, especially ratory rituals, purification rites or stages of mining, logging, damming and grazing.3 Also, preparation. Both active participants and public land comprises a substantial portion of observers may need to be readied. Natural the Western states — nearly 50 percent, for substances may need to be gathered. Those example, in California. If the sacred sites that who are unprepared or whose behavior or existed prior to European colonization were condition may alter the ceremony are often distributed evenly over the U.S. landscape, half not permitted to attend. The proper spiritual would be on public land. atmosphere must be observed. Structures To protect sacred places from vandalism may need to be built for the ceremony or its and excessive use, native people are keen to preparation. The ceremony itself may be shield them from publicity — even within brief or it may last for days. The number of native communities some sites are accessible Introduction

only to spiritual leaders. However, sites on when sacred sites are protected. No longer public land are under the control of federal is protection only in the interest of native land managers whose agencies encourage groups, but also in the public interest. public recreational access to those lands, along with logging and mining. b Sacred sites can be viewed as part of the Sacred sites on public lands are subject to guarantee of freedom of religion. The First more stringent federal oversight than private Amendment to the Constitution provides that lands, which offers some protection leverage. “Congress shall make no law respecting an In several cases involving sites on public land, establishment of religion, or prohibiting the native leaders have set aside the cultural free exercise thereof…” Sacred places in nature imperative to keep the sites secret and publicly are integral to the practice of the spiritual advocated for their protection. traditions of Native Americans whose land- based religions deserve no less protection under the law than other religions. Sacred Sites and the Public Interest b Protecting sacred sites today is a restorative justice measure. Even though the Bill of Native Americans’ struggle to protect Rights guarantees freedom of religion, Native sacred sites has become increasingly visible Americans were not allowed to practice their to the public. More support has followed traditional religions for more than 100 years. that visibility. As native leaders reach out to Draconian “civilization” laws banned ceremo- educate the public and to partner with envi- nies and visits to sacred places, and condoned ronmental, preservation and human rights confiscation of sacred objects. Protecting groups — and, in some cases, with ranch- sacred sites is an ethical and legal stance that ers, hunters, fishermen and rock climbers promotes justice and strengthens the principle — perception is shifting about who benefits of non-discrimination. Christopher McLeod Christopher 10 Introduction

b The history and traditions of native Corporations and Sacred Sites peoples comprise the oldest part of American history; their sacred sites have historic and Corporations and native groups typically cultural value. Since the early 1980s, the federal sit on opposite sides in a conflict involving government has listed traditional cultural potential degradation of a sacred site with places (TCPs) on the National Register of the government serving as arbiter. Typically, Historic Places, which is managed by the too, there are winners and losers, and some- Department of the Interior. Many TCPs are times the arbiter is not neutral. Only rarely sacred sites. The National Trust for Historic do companies and native groups conduct Preservation, a private nonprofit organization, two-way consultations aimed at a win- creates an annual list of the Eleven Most win resolution both sides can live with. Threatened Historic Sites in the U.S., and in The large gap between the worldviews of the recent years has placed Zuni Salt Lake, the parties in conflict makes negotiation difficult. Missouri River, Ocmulgee Old Fields and Most corporations believe in their right to Indian Pass, all Native American spiritual land- profit from the private ownership of property. scapes, on the list. Sacred sites are some of the Some corporate managers give a nod to country’s most endangered historic sites. corporate social responsibility, but most are focused on generating short-term value to b The protection of sacred sites has ecologi- shareholders rather than long-term value to cal value. Many sacred places are in pristine both shareholders and stakeholders. They natural settings, tucked away from develop- define their mission as eliminating obstacles to ment and serving important ecosystem development projects, whatever the social functions, such as watershed protection and merits of the obstacles. They care about legal biodiversity conservation. Others, such as Mt. compliance. Social and ethical issues are Shasta, are in the public spotlight largely generally considered outside of company because of their spectacular geographical purview. Most companies are blind-sided when features. Environmentalists often ally with confronted with demands to define an ethical native groups to protect sacred sites. stance toward sacred sites. “The great majority of companies around the b Sacred sites have spiritual value for many world have not thought carefully about their Americans, not only for Indian tribes. Central responsibilities in relation to human rights,” to native worldviews is the belief that long-term says Mary Robinson, the former head ecosystem and human survival depend on of the U.N. Human Rights Commission. revering particular locales and nature in Most do so only in response to a crisis. As general. Non-Indian environmental and faith- William Miller, the vice-president of Anschutz based groups easily relate to the words of a Exploration Corporation said at the conclusion Modoc elder working to protect the Medicine of a consultation in which the company Lake Highlands in northern California: “Touch withdrew from Weatherman Draw, an oil the hearts of the people… Let them know, if project in Montana’s sacred Valley of the they keep going on and on like this all over the Shields: “We’re happy to get it behind us.”5 world, man will destroy man.”4 Companies and native groups often look at the same landscape and see different things. A company may see a gold mine, the potential for garnering resources and company growth; 11 Introduction

a native group sees its history, identity and social responsibility and found it gives them a spirituality. Corporate managers typically competitive advantage. Still, many companies believe and argue that using the land’s resourc- lag far behind in terms of understanding what es is in the public interest. It is a view that it takes to attain a social “license to operate.” resonates deeply in the American psyche. A While leading CSR companies have devel- recent article in the Yale Law Review argued oped substantive environmental management against sacred sites legislation on the grounds policies, few have adopted codes of conduct or that, by increasing Indian control over public policies on human rights. Fewer still have lands, large tracts of the West would be “locked policies that protect indigenous rights. On the away” and vulnerable to “under-use.”6 other hand, many human rights organizations Is there a way to bridge the gap between and other NGOs in the United States and sacred sites and property rights? Education globally are pressing corporations to explicitly and shaping society’s values are key. “It was a embrace human rights. Including sacred sites cultural resource we learned a lot more about protection within a human rights framework and one that merits some level of protection,” would situate advocacy on this issue at the said William Miller of Anschutz Corp.’s corporate social responsibility movement’s concession at Weatherman Draw.7 cutting edge. Another hope for bridging the gap is that corporate behavioral norms are fluid. Companies are influenced not only by the Tools for Protecting broad values of the societies in which they Sacred Sites operate, but also by benchmarks and market conditions within their industry. Company Native American groups have used four tools managers watch what industry leaders are to protect sacred sites: laws, policies and doing. A perceived risk to a company’s com- regulations; the consultation process; alliances petitive advantage and broader “license to and public education; and harnessing tradi- operate” will propel voluntary action to change tional ways and knowledge. faster than regulatory, legal and political catalysts. 1 In the past decade, an emerging corporate The Law social responsibility (CSR) movement has The most commonly used set of tools, though articulated new values and defined new norms far from adequate, is the law. (Please see for corporate good practice in relation to Appendix Four for a full discussion of exist- environmental and social performance on ing legislation and legal tools.) The main issues ranging from toxic emissions and problem is that, unlike several other countries, biodiversity protection to child labor, worker such as Australia and Canada, the United health, product safety, lobbying and corrup- States has no substantive federal sacred site tion. The movement — made up of responsible legislation, and what exists lacks teeth: investors, NGOs, faith-based groups, unions, business magazines, opinion makers, inter b The American Indian Religious Freedom Act national environmental and human rights (AIRFA) of 1978 states forcefully that it is the organizations, and companies themselves — is “policy of the United States to protect and particularly active in the extractives industry, preserve for American Indians their inherent largely because of its legacy of substantial right of freedom to believe, express, and environmental and social harms. A number of exercise… traditional religions… including but extractive companies have embraced corporate not limited to access to sites...”8 12 Introduction

However, the Act does not mandate any and economic pressures of the administration procedures that federal agencies must use to in power. A sympathetic administration in the protect Indian access and prevent damage to White House can — and Bill Clinton did — sacred sites. Because it imposes no penalties on lean toward protection. When George W. Bush violators and doesn’t provide a “cause of action” came into office in 2001, things quickly leaned enabling native people to go to court, the Act is the other way. more a statement of intent than a practical tool for either Indians or federal agencies. Accord b The Federal Land Policy and Management ing to Jack Trope, executive director of the Act of 1976 is another law relevant to sacred site Association on American Indian Affairs, every protection. It allows for the designation of government agency dealing with Indian tribes “Areas of Critical Environmental Concern” from the Defense Department to the Park where “special management attention is needed Service has its own policy on sacred lands.9 to protect and prevent irreparable damage to Ten years after the passage of AIRFA, the important historic, cultural and scenic values,” Supreme Court ruled that the construction of a as well as to wildlife and the environment Forest Service logging road through a Native generally. The directive applies to the Bureau of American sacred area in northern California Land Management (BLM), which has jurisdic- was a dispute about government property, not tion over millions of acres of public land, and religion.10 The Court, however, asserted that BLM policies affect corporations seeking to federal agencies could choose to “accommo- extract resources on those federal lands. date” Native American religious practices and protect sacred sites. b International Labor Organization (ILO) Convention No. 169 is the only binding interna- b National Historic Preservation Act (NHPA) tional treaty focused exclusively on indigenous of 1966 requires federal agencies that issue rights. One of its general principles states: “The licenses or have jurisdiction over a federal people concerned shall have the right to decide project to consider the effect of their actions on their own priorities for the process of develop- any site in the National Register of Historic ment as it affects their lives, beliefs, institutions Places or that might be eligible for inclusion in and spiritual well-being and the lands they it.11 The federal agency must consult with the occupy or otherwise use…”12 The ILO is an relevant State Historic Preservation Office and agency of the United Nations. Its conventions give the Advisory Council on Historic are binding in countries that ratify them and Preservation, a federal agency, the opportunity are “guidelines” for countries that do not. The to comment. United States has not ratified ILO Convention NHPA was amended in 1992 to clarify that 169. “properties of traditional religious and cultural importance to an Indian tribe or Native b California’s SB 18, enacted in 2004, Hawaiian organization” can be eligible for requires local governments to include Native inclusion on the National Register; that federal Americans in their municipal growth planning agencies consult with Indian tribes or Native processes, allows tribes to hold conservation Hawaiian organizations about such sites; and easements, and calls for sacred areas to be that federal agencies establish historic preser- considered and protected in open space vation programs in consultation with Indian planning. In 2005, California also enacted SB tribes and Native American organizations. The 922, which expressly protects the confidential- review process established by NHPA is open to ity of site and consultation records from public interpretation and is subject to the political disclosure. 13 Introduction

Using existing laws to protect sacred sites has shortcomings. The lack of a federal government mandate, and the inability to go to court to enforce it, means that there is no true and lasting protection for sacred sites. An administrative decision to reject a particular development proposal can McLeod Christopher be reversed, and even when one proposed project is quashed, the site remains vulnerable to a new one. to-government relations. This unique status There has been an ongoing effort to pass of holding sovereignty over tribal members new national legislation to protect sacred and lands gives native peoples a potentially places, but the political obstacles are huge. powerful tool for protecting their sacred sites. Mining interests, developers, private property Over the last 20 to 30 years, many tribes rights groups, and even federal land manage- have created Cultural Preservation Offices and ment agencies such as the National Park Tribal Historic Preservation Offices to conduct Service are resistant. On the tribal side, the research and mapping, create policies and issue great variety of circumstance and cultural permits, and take the lead in managing sacred practice and the need for confidentiality makes sites and consulting about their importance as one-size-fits-all national legislation difficult to cultural resources. write, let alone pass. Education is a by-product of consultation. Total reliance on legal mechanisms also has The consulting federal oversight agency, such drawbacks. The legal system is inherently as the Bureau of Land Management, the Forest adversarial: There are winners and losers. Laws Service or National Park Service, or in a few tend to be rigid and discourage negotiation and cases the consulting private company, has an engagement. It is doubtful that a law could be opportunity to learn about a sacred site or the written to cover all types of sacred sites. depth of an Indian community’s concern about Enforcement of law requires vigilance and potential harm to it. For Indian advocates, the resources. The key to social — and corporate — consultation process also provides an opportu- acceptance of the legitimacy of Indian claims nity to educate and mobilize their own com- to protect sacred sites is respect. Laws help to munities. Education of the general public is build respect — but they cannot mandate it. often an indirect outcome as well, due to media coverage of the conflict and consultation 2 process. Consultation Despite the fact that federal agencies must Federally recognized Indian tribes are consult with sovereign tribal governments and sovereign nations, and all consultations and native communities, the lack of a stronger legal communications between them and the U.S. backbone reduces the native people’s relative government are considered to be government- bargaining power in a consultation process. 14 Introduction

The highly asymmetrical power relations groups; producing radio and film documenta- between the parties also can have the unde- ries; and using the Internet and the media to sired effect of wearing down, rather than publicize threatening development projects. building understanding and accommodation of Of note are Zuni Salt Lake Coalition, Mt. native concerns. In consultations with corpora- Graham Coalition, SAGE Council and Black tions, which are motivated by short-term Mesa Trust in the Southwest, and Native demands, native people find themselves facing American Rights Fund, Sacred Lands Protection adversaries that often are impatient for results. Coalition, Seventh Generation Fund and Honor Even with strong consultation protocols, such the Earth at the national level. as those being developed by the Lawyer’s Advisory Committee to the Sacred Lands 4 Protection Coalition, underlying power Harnessing Traditional Ways imbalances are likely to impede the emergence and Knowledge of a just outcome to a consultation process (see Native peoples feel a community responsibil- Table 1.1). The credible threat of a lawsuit, ity to care for land and life. Continuing the however, can even out the imbalances, making age-old cultural practices that reflect that negotiations more successful. responsibility provides them with the motiva- Additional reflections on consultation tion to protect their sacred sites. The practices appear in the Conclusion (see pages 65–66). include prayer, ceremony, medicinal plant gathering, hunting, runs, feasts, community 3 deliberation and dialogue, tribal councils, vi- Alliances and Public Education sion quests, storytelling, and language reten- To protect sacred sites, Indian advocates are tion and revitalization programs. Northern reaching out to build unity among themselves Cheyenne attorney and activist Gail Small and to gain the support of the wider public by succinctly captures this cultural imperative organizing conferences and workshops; lobby- when she says, “Our spiritual connection ing state and federal lawmakers; building part- to the land is the basis of our resistance.” nerships with environmental and preservation 15 Introduction

Table 1.1

Draft Principles for Federal Agencies for Consultation to Protect Native American Sacred Places

1 Become informed about the tribes and other 8 Provide financial assistance if possible and native organizations that have historical and/or appropriate. ongoing ties to the land under the agency’s 9 Provide for sensitive information to be treated jurisdiction. with confidentiality. 2 Build ongoing consultative relationships. 10 Maintain honesty and integrity in consultation 3 Make special efforts to establish relationships processes. with native religious leaders. 11 Establish training programs on consultation 4 Fully engage tribes, Native Hawaiian organiza- with tribes, Native Hawaiian organizations and tions, and native religious practitioners in also native religious practitioners. planning processes. 12 View consultation as an integral and essential 5 Help the tribes understand the federal agency. element of the agency’s mission. 6 Institutionalize consultation procedures. 7 Contact tribes, Native Hawaiian organizations SOURCE: “Consultation Protocols for Protecting Native and native religious practitioners early and American Sacred Places,” draft developed by attorneys often. consulting to the Sacred Lands Protection Coalition, October 28, 2003

PART T WO Conflicts With Corporations Over Sacred Sites 18 Case Studies Case

introduction to case studies

onflict between corporations and This section presents six case stud- C native groups over sacred sites has ies of corporate conflicts with native grown dramatically and become more groups over sacred sites. Five are pre- visible in recent decades. Given that the sented in detail: Glamis Gold at Indian entire continent was populated by a Pass in southern California; Anschutz at multitude of distinct native cultures for Weatherman Draw in Montana; Calpine millennia prior to European colonization, at Medicine Lake Highlands in north- there are perhaps thousands of sacred ern California; Peabody Energy at Black sites in the United States. In 2002, the Mesa in Arizona; and Salt River Project National Congress of American Indians at Zuni Salt Lake in New Mexico. An identified 23 ongoing disputes over sa- additional case study, Access Fund at cred lands.13 Many involved conflicts Cave Rock in Nevada and Devils Tower with corporations. in Wyoming, is summarized in a sidebar. Bill Evarts

Indian Pass

and Glamis Gold Ltd. DY #1 U CASE ST 20 Case Study #1 Study Case

Indian Pass

ndian Pass, homeland of the Quechan Indian Nation in the southeastern California Idesert, is owned by the federal government and managed by the Bureau of Land Management. Glamis Gold Inc., which began acquiring gold mining claims in the area in 1987, does open-pit, cyanide heap-leaching, a process that can scar the landscape and pollute groundwater with cyanide. After protesting for years, the Quechan compromised and agreed to allow a limited portion of its land to be protected under National Register standards. In 2001, Secretary of Interior Bruce Babbitt denied the Glamis proposal for mining in Indian Pass; a year later, President George W. Bush’s new interior secretary, Gale Norton, rescinded Babbitt’s denial. In 2002, California legislators passed a bill to protect Indian sacred sites and another bill to mandate backfill and other environmental mitigation measures in gold mining operations. Governor Gray Davis vetoed the first bill but signed the second. In October 2003, Glamis filed suit against the U.S. government under the provisions of NAFTA, asking for $50 million in damages. A hearing is scheduled in March 2007, with a decision months (or years) later.

The Sacred Site them, are integral to contemporary Quechan religious ceremonies and pilgrimages, provid- In the southeastern desert of California, ing guidance through the spirit world as well as straddling the borders of Arizona and Mexico, knowledge of Quechan origin, history and lies the traditional homeland of the Quechan destiny. This area is also considered sacred to Indian Nation. Archaeological evidence other Colorado River tribes, including the suggests that tribes have used the Indian Pass Mojave, Colorado River Indian Tribes and area and lived off the bounty of the Colorado Cocopah. River for at least 10,000 years. The Indian Pass area holds what the Originally spanning some 880 square miles, Quechan describe as “prayer circles, ceremo- Quechan homelands were seized by the United nial places, shrines, ceramic scatters, petro- States and inundated by gold mining interests glyphs, and spirit breaks linked by ancient in the 19th and 20th centuries. Today, some trails.”14 3,000 Quechan live on a 45,000-acre reserva- “If these sites are destroyed,” says Willa Scott tion, and make their living largely by leasing of the Quechan Tribe’s Culture Committee, lands for agriculture and sand mining and “we will lose our ability to pass down our beliefs through gaming and recreational support … our cultural gatherings, funeral rituals, enterprises. singing, storytellings and teachings. Without To the mountainous north and west of the these practices, our people will lose the most reservation lies the spiritual heartland of the important part of who we are.”15 Quechan, including the “Trail of Dreams” in Non-indigenous Americans also recognize what the Bureau of Land Management (BLM) the cultural riches of the area. The National has designated the “Indian Pass-Running Man Register of Historic Places lists 55 archaeo Area of Traditional Cultural Concern.” logical sites at Indian Pass. In June 2002, Geographical and cultural features around the National Trust for Historic Preservation Indian Pass, and the desert trails that connect listed Indian Pass as one of the Eleven Most 21 Case Study #1 Study Case

Endangered Historic Places in America. Indian of gold production to under $150 an ounce.17 Pass is today owned by the federal government In 1987, Glamis began acquiring gold and managed by the BLM. It is part of the mining claims in the Indian Pass area. To get Indian Pass Area of Critical Environmental around the requirement in the 1872 Mining Concern, the Indian Pass and Picacho Law that only U.S. citizens can mine on federal Wilderness Areas, and is adjacent to areas lands, Glamis established a wholly owned designated as Critical Habitat for the endan- subsidiary, Glamis Gold Inc., incorporated in gered desert tortoise. It also falls within areas Nevada. In turn, Glamis Gold Inc. established protected by the California Desert Glamis Imperial, which owns the Indian Pass Conservation Area and California Desert claims as well as other claims in the Imperial Protection Act, passed in the 1980s and 90s Valley. respectively. “Glamis Gold Ltd. and its operating subsidiaries are dedicated to providing environmental stewardship, while maintaining sound business The Company practices,” the company stated in information provided to the New York Stock Exchange in Glamis Gold Ltd., a Canadian gold min- 1996.18 However, unlike other mining com ing corporation based in Vancouver, British panies, Glamis has never made public an Columbia, describes itself as a “premier environmental audit or sustainability report. intermediate gold producer with low-cost No environmental, social or human rights production, large reserves, and a consistent, policy is posted on the company’s Web site, and strong growth profile.” In 2005, the company’s none of the corporation’s press releases or other market capitalization amounted to $2.6 bil- public information relate to social or environ- lion. Focused on the Americas, the company’s mental issues. business growth strategy entails the expansion Moreover, Glamis does not belong to either of mines in California, Nevada, Honduras, the Mining Association of Canada or the Guatemala and Mexico.16 In 2005, Glamis International Council on Mining and Metals, aimed to establish and operate new mines as both of which have developed principles for “efficient low-cost producers,” bringing the cost sustainable mining, including relationships

Glamis Gold in Honduras

SAN IGNACIO, Honduras — that has operated in San Ignacio in ment’s Department of Mining Several hundred residents of a central Honduras since 1999. Promotion, said, however, the mine Honduran town last week protested The protesters said Thursday’s was meeting all environmental require- against an open-pit mine run by a unit demonstration was the start of a movements set out in the 10-year conces- of Canada’s Glamis Gold Ltd., saying it ment they hoped would lead to the sion granted in 1999. was damaging their environment. mine’s closure. They said the open-pit “It must go! It must go!” some 700 mine was destroying their forests, and SOURCE: Reuters News Service, October 21, protesters chanted outside the gates of threatening local water supplies. 2002 the San Martin gold and silver mine Jose Sierra, head of the govern- 22 Case Study #1 Study Case

such as back-filling, the open-pit mines leave a deeply and permanently scarred and devas- tated landscape, a reality well-documented in Nevada, Montana, California and elsewhere.19 Moreover, even if sites are back-filled, original land features, cultural sites and ecosystems may be lost forever. Second, cyanide is highly toxic when dissolved in water, producing cyanide gas. Generally, mining companies work hard to keep cyanide heaps from leaking, since leakage entails loss of gold. However, leaks and spills do occur. A cyanide spill from an overflowing tailings dam at a gold mine in Romania in 2000 killed thousands of tons of fish and other ma- with indigenous peoples (see Table 3.4). Glamis’ rine life, effectively rendering the Tisza River operations in Central America have been the dead.20 In Montana, cyanide heaps leaking into target of intense community criticism on both local groundwater prompted passage of a voter environmental and human rights grounds (see initiative in 1998 that banned cyanide heap sidebar on page 21). leaching in the state.21 As originally proposed by the company, the Glamis Imperial project at Indian Pass entailed The Impact three open pits on 1,650 acres with, on average, about one ounce of gold retrieved for every 422 Glamis mines gold using what it describes as tons of ore extracted. The largest of the open “simple, highly productive technology” — open- pits would have been about 850 feet deep, with pit, cyanide heap-leaching. The process entails waste rock piles as high as a 30-story building. digging up tons of ore, grinding it into fine Glamis did not propose to backfill it. The ore earth, heaping it onto open-air leach pads on body at Indian Pass is of a lower-than-average a lining of plastic or asphalt, and spraying the grade, requiring a higher-than-average ratio of heap with a solution of dilute cyanide. The material disturbed to metal recovered. A low cyanide percolates down through the heap for grade of ore means a low profit margin, sug- several weeks, leaching out particles of gold, gesting that environmental protection or which drain into a pond and are then pumped mitigation measures could make the venture to a recovery plant. unprofitable. The development of open-pit, cyanide heap- The combination of a large open pit, related leaching technology in the 1970s opened up ore mine roads, power lines, waste rock piles, and bodies with a low gold content to economically water wells draining the desert aquifer, as well viable mining. However, environmental as potential cyanide pollution of groundwater, concerns have been raised on many counts. would effectively mean the obliteration of First, the process yields a small amount of Indian Pass as a place of spiritual practice and gold for a large amount of mined ore. A ton of archaeological significance for the Quechan ore can yield as little as .015 ounces of gold, people. In a report prepared at the request of requiring hundreds of tons of ore to produce the BLM, the Advisory Council on Historic one wedding band. Unless companies are Preservation concluded that, even with mitiga- required to restore the land through measures tion measures proposed by the company, “the 23 Case Study #1 Study Case

project would be so damaging to historic resources that the Quechan Tribe’s ability to practice their sacred traditions as a living part of their community life and development would be lost.”22

The Conflict

From 1987 to 2004, the Glamis Imperial Evarts Bill Project wended its way through a virtual hurricane of tribal, NGO, community and Indian Pass, cacti blooms government opposition. The first hurdle was the California Desert Protection Act (CDPA). Glamis asserts the company held off boundaries, they agreed to the more limited substantial investment in Indian Pass until ATCC designation in order to more readily 1994, when the implementation of the Act conform to National Register standards, and to was finalized. Glamis claims it then became try to protect the key areas under direct threat clear that the project was outside the wilder- from the proposed gold mine. ness areas designated by the Act. Glamis filed At each step of the process, and during a “plan of operation” in December 1994 with subsequent government-to-government consul- both the BLM and the state of California to tation between the BLM and the tribe, the obtain approval of its proposed gold mines.23 spiritual, cultural and archaeological values of BLM spent six years reviewing the Imperial Indian Pass were reaffirmed and immitigable Project, a process that included several public environmental impacts were documented. hearings, many cultural resource reports, In 1998, at the petition of the BLM, the Indian two drafts of an Environmental Statement/ Pass-Running Man ATCC was withdrawn from Environmental Impact Report (DEIS) in 1996 further mining applications — but the then- and 1997, and a final EIS/R in 2000. Extensive existing Glamis claims were grandfathered in. public comment was received during each step, In early 1999, the Advisory Council on Historic with the vast majority of comments in opposi- Preservation (ACHP) recommended that, tion to the mining proposal. “Interior take whatever legal means [are] avail- The BLM, however, consulted with the able to deny approval for the project.”24 Tribal Quechan Tribal Council and the Quechan and other Native American groups joined with Cultural Heritage Committee on the surveys a broad spectrum of preservation and environ- and environmental documents late in the mental groups to make the case with the gov- process, only after the first DEIS/R was ernment and the public. released. Upon learning directly from the tribe Glamis remained unmoved, however. It first of the spiritual significance of the site, the tribe tried to mollify the tribe by offering a job and a requested and BLM undertook a more inten- pickup truck to a tribal member. It later, and to sive archaeological investigation and Native this day, tries to minimize the tribe’s views by American consultation report, which led to stating that its sacred area is too large. Quechan designating Indian Pass-Running Man as an President Mike Jackson was often quoted as Area of Traditional Cultural Concern (ATCC). saying, “What part of ‘no’ don’t they under- Although the Quechan view their entire stand?” traditional territory as continuous and without In late 1999, then DOI Solicitor John Leshy 24 Case Study #1 Study Case

issued a legal opinion finding that the BLM legislation requiring backfilling and recontour- could deny the mine, based upon the ACHP ing, which specifically aimed to make mines in and other findings. Glamis filed suit in federal the desert more environmentally responsible, court against DOI claiming that Leshy’s opin- was signed into law by Gov. Davis in April 2003. ion was wrong. The tribe moved to intervene in In October 2003, Glamis again filed a claim, the suit. The court dismissed Glamis’ claim. this time against the U.S. government under Next, Glamis said it would not pay for the final Chapter 11 of the North American Free Trade EIS/R to be produced. BLM ultimately provided Agreement (NAFTA). Glamis claims that it was the funds and the final report was issued in expressly targeted by the California mining November 2000. measures and, therefore, it asserts the California Finally, in January 2001, Secretary of Interior law breaches NAFTA’s provision for Minimum Bruce Babbitt denied the Glamis Imperial pro- Standard of Treatment for foreign investors. posal due to its cultural and environmental Moreover, Glamis claims that the legislation impacts — the first time a proposed mine proj- constitutes a measure “tantamount to expro- ect was denied under the 1872 Mining Law. priation,” causing the company to lose $68 Two months later, Glamis filed suit against million in preparatory investment and assessed the Department of Interior in the Washington, value of the mine. NAFTA allows expropriation D.C., District Court challenging Babbitt’s only for a public purpose and on a non-dis- decision on the grounds that it misinterpreted criminatory basis. Still unwilling to concede the law. Glamis’ lawyers argued that, while the that protection of a sacred site constitutes a Department of Interior had followed its own public purpose and wanting to deliver share- policies, the mining law does not generally holder value, Glamis is seeking $50 million in allow a mine to be denied and that special damages.26 regulations required for the protected California desert had not been promulgated by Lessons Learned DOI. In November 2001, the tribe’s motion to intervene by right was granted by the court. b Political climate can influence a tribal Just days later, without public notice or consul- group’s success in engaging with the govern- tation with the Quechan, George W. Bush’s ment. When representatives of the government newly appointed interior secretary, Gale are willing to listen, tribal groups can intervene Norton, rescinded Babbitt’s denial of the mine in government processes and protect a sacred so that the mine could be reconsidered. Glamis site. Under the Clinton administration, the quickly withdrew its lawsuit. concept of sacred site protection made legal As a result of intense public outcry and and moral headway, and protection of Indian Quechan-led organizing, California state Pass was defined as being in the public interest. senators introduced two state bills in 2002, one The change of administrations essentially protecting Indian sacred sites and the other reversed this course at the federal level. mandating backfill and other environmental mitigation measures to restore mining sites to b Partnerships between Indian, preservation pre-mining conditions. Largely due to multi- and environmental groups can effectively press stakeholder consultations involving Indian and for sacred site protection in both administra- business leaders, both bills passed the tive processes and legislative action at the California legislature.25 However, bowing to national and state levels. Intratribal coopera- pressure from developers and business groups, tion — where the tribal government and its former Governor Gray Davis vetoed the sacred cultural or spiritual leaders work toward a sites protection bill. The environmental common goal and invest resources in it — can 25 % View from Black Mountain Case Study #1 Study Case

low-cost, low-profit margin companies, especially ones lacking a product that consumers can readily boycott. Companies like Glamis tend to reject voluntary initiatives because their reputation for social responsibility is unimportant. On the contrary, they generally do not take “no” for an answer, no matter how loudly and often Bill Evarts they hear it. This makes it be critical to successes. Intertribal cooperation considerably more difficult to devise advocacy — where leadership from many tribes pull strategies that are effective in exerting pressure together technical and political resources on the corporation. toward a common goal — also can be an b New legislation or policies should, as much important factor. as possible, expressly extend to pre-existing b Direct engagement between Indian and claims and licenses; without them, no matter business leaders can be the key to drafting and what level of protection is achieved for these passing legislation. With a longer and wider places, the entitlement issues remain. More consultation process in California, business thought should be given to the feasibility and leaders who feared — and largely misunder- appropriateness of allowing land exchanges or stood — the implications of the sacred sites bill establishing funds to retire claims and licenses. might have been persuaded to drop their Any such policies, however, should assiduously opposition. Working with these diverse groups avoid creating incentives to site industrial uses ultimately proved worthwhile when the later in culturally sensitive areas. bills, SB 18 and SB 922, were passed and b The power of harnessing traditional enacted through bipartisan support. knowledge and practices is key. The Quechan b The lack of national and state legislation used gatherings, spirit runs, and seeking that specifically protects sacred sites is a knowledge from the elders and ancestors to fundamental, structural weakness for sacred inform their strategy and sustain their effort. site protection advocacy. Without a legislative Bringing in knowledgeable, caring consultants backbone, even high-level administrative and advisers to supplement these efforts is also decisions can be quickly overturned when helpful, though outsiders must respect the political winds change. Moreover, national traditional ways and understand the need for legislation with one overarching policy de- confidentiality. signed to protect sacred land would correct the b When consultation is neglected, under- current situation of inconsistent multiple- taken late, or intentionally avoided, conflict is agency policies. Even Glamis Vice President guaranteed. This case study shows it would Charles Jeannes argued, “There needs to be have been in everyone’s best interest to involve some coordination among… government tribal entities early and often in both planning entities as to how this is resolved.”27 and project development processes. The b National or state-level sacred site legisla- viability of collaborative problem solving tion is especially important in cases involving efforts also should be explored. CASE STUDY #5#2 Scott Prinzing Scott

Anschutz Exploration Corp. and Weatherman Draw 27 Case Study # Study Case 2

Weatherman Draw

eatherman Draw in south-central Montana, owned by the federal government and W managed by BLM, is a 1,000-year-old cultural site sacred to many tribes for its cliff paintings of shields, animals and humans. Anschutz Exploration Corp. acquired two leases to mineral rights there in 1994, expecting drilling to yield 10 million barrels of oil over 20 years. The exploration work had the potential to increase vandalism in this remote location, destroy the canyon’s serenity and irreparably damage “a living spiritual center.” Leaders from 10 tribes plus environmental and preservation groups decided to fight the leases publicly after BLM approved one exploratory well. They appealed the decision to DOI, launched a media campaign and enlisted congressional help. After meeting with its opponents, Anschutz dropped its plans and donated the leases to the National Trust for Historic Preservation.

The Sacred Site Reservation. Today, it is owned by the federal government and managed by the BLM. Until Nestled in south-central Montana is a small recently, when the area was thrust into the na- canyon that contains the largest collection of tional spotlight, it was unknown to the general Native American rock art on the continent. public. Indeed, the remoteness and wildness Called the Valley of the Shields or the Valley of kept away even large concentrations of tribal the Chiefs by native people, the canyon’s walls members. In 1999, in recognition of its signifi- feature paintings of large, multi-hued draw- cant cultural values, the BLM designated ings of shields, animals and humans created Weatherman Draw as an Area of Critical by members of a dozen different tribes over Environmental Concern (ACEC). the last thousand years. Some shields have hands and feet, perhaps representing specific individuals who can be traced to Mexico. The Company The canyon is sacred to many tribes, including the Crow, Blackfeet, Comanche, Northern The Anschutz Exploration Corp. is a Denver- Arapaho, Northern Cheyenne and Eastern based oil company owned by billionaire Philip Shoshone, and is historically a place of peace. Anschutz. Both the corporation and its owner In winter, tribal members still engage in vision shun publicity: Neither the corporation nor its quests, burials, prayers and the gathering of parent company, Anschutz Co., has a Web site. medicinal plants there. “This isn’t just some Philip Anschutz has given no interviews since place on a hill,” says Jimmy Arterberry, a 1974. Comanche preservation leader. “This is a living What is known is that Philip Anschutz is one spiritual center. The church is alive here.”28 of the richest people in the United States — his The valley is known as Weatherman Draw net worth was estimated to be nearly $9 billion to non-native people because it was named in 2001. He is a strong supporter of the Repub after the Weathermon family that immigrated lican Party, contributing $300,000 to the party from Germany and settled in the area. (A draw and the Bush campaign between 1997 and is a gully or ravine.) The area spans about 2001.29 Anschutz owns or has major stakes in 4,270 acres and once was part of the Crow high-profile companies including United Artists, 28 Case Study # Study Case 2

Qwest Communications and the Los Angeles Lakers. He is deeply involved in energy development and is one of the most active players in oil and gas exploration in the Rocky Mountain region. He also is an avid art collector. In 1994, Anschutz Exploration Corp.acquired two leases, issued originally in 1985, to mineral rights in Weatherman Draw. The leases cost Anschutz $1 per acre per year. If successful, the exploration was projected to yield about 10 million barrels of oil over 20 years. According to Anschutz estimates, the probability was one in away, important Northern Cheyenne ties with seven that oil would be discovered through the spiritual realm would be irreparably exploratory drilling. severed.” Disturbance of the site could affect non-native peoples as well. An Eastern Shoshone tribal member warned the BLM that The Impact Indian rock art is “spiritually potent” and “exposure to the power of these places can and Oil drilling, like any other commercial devel- will bring harm to people.”30 opment of Weatherman Draw, would expose the area to a much higher level of publicity and public access. Anschutz planned to improve The Conflict an abandoned cattle road that passes within a half mile of the canyon and the rock art. With For six years, Anschutz’ application to drill for increased public usage the potential for vandal- oil was kept in limbo while the BLM considered ism grows. At other sacred sites, and indeed whether and how to protect the site. Tribal in Weatherman Draw itself, non-native visitors leaders made their concerns known quietly to have drawn graffiti on or near petroglyphs, and the BLM. In an August 1999 letter to the BLM, have even used them for target practice. Rock Todd Kulstrom, the company’s land manager, art panels are sometimes removed entirely warned that “Anschutz’ patience had ended.”31 and sold on the international black market. Under the terms of the ACEC, oil, gas and min- Public access and commercial exploitation eral exploration is not allowed in Weatherman would also destroy the quietude and serenity of Draw. However, the leases were “grandfathered” the site. Noisy road traffic, drilling equipment because they pre-dated the tighter regulations. and oil workers would, from the Native In February 2001, 12 days after President American perspective, “disturb the power of Bush’s inauguration, the BLM approved a the spirits.” In a statement to the BLM, the single exploratory well in Weatherman Draw. Northern Cheyenne Tribe pointed out that, Permission to drill was based on an Environ “If the spirits that exist in the area were driven mental Assessment that considered only the 29 Case Study # Study Case 2 Scott Prinzing Scott

Cliff painting of three shields in Weatherman Draw

impacts of exploration, rather than a more ed long overdue relief from regulatory limbo. stringent Environmental Impact Statement, “We understood this was a sensitive area,” said which would have had to consider the potential the company’s land manager, “and we wanted effect of full-blown oil development. to work with the people in the area.” But he The BLM’s decision catapulted Weatherman found the Native American response “vague Draw into the national spotlight. Previously and without clarity.”35 reluctant to reveal much about the site’s loca In May 2001, the BLM upheld Anschutz’ tion and sacred characteristics, tribal leaders right to drill for oil in Weatherman Draw. With decided to fight the decision, including launch- a nod to the opposition, the BLM stipulated ing a major media campaign, even if it meant that there should be a fence around the rock art exposing the site to more publicity. As Jimmy areas and a security guard and locked gate on Arterberry said, “We decided to try to protect it the company’s access road. Tribal leaders, at all costs.”32 however, argued that the obscurity afforded by Ten tribes joined together to appeal the wilderness would protect the site far better BLM decision, along with environmental and than a modern sentinel and chain link fences. preservation groups.33 Their appeal was based A Sierra Club organizer said the measures were on the limited scope of the Environmental like “putting lipstick on a pig — it’s still a pig.”36 Assessment, but the tribes also questioned The tribes and their allies then took three whether the BLM had fulfilled its statutory steps: They appealed the decision to the obligation to consider the project’s cultural Department of Interior, garnered media impacts. Anschutz’ land manager has acknowl- coverage pointing out the irony of a billionaire edged that the company “worked closely with art collector threatening Native American art, BLM officials” to tailor the original proposal in and sought help from Congress. In June 2001, a way that would allow BLM to avoid an Representative Nick Rahall (D-WV), intro- environmental impact review, thus deliberately duced HR 2085, Valley of the Chiefs Native avoiding the issue of what would happen to American Site Preservation Act of 2001. Rahall cultural resources should oil be discovered.34 likened Anschutz’ Weatherman Draw project For Anschutz, the BLM approval represent- to placing an oil rig in the Sistine Chapel. 30 Case Study # Study Case 2

“Are we really that desperate? Are we really Trust President’s Award. that greedy?” he asked his congressional “Anschutz did the right thing, and thereby colleagues.37 provided a model for other corporations to Faced with a potentially lengthy and expen- follow,” said Trust President Richard Moe. sive legal challenge, as well as increasingly crit- “The sensitivity and good citizenship that this ical public exposure, Anschutz entered into company has demonstrated deserve the thanks direct negotiations with concerned tribes and of everyone who cares about preserving the National Trust for Historic Preservation. America’s heritage.”39 The negotiations led to a precedent-setting agreement on April 23, 2002: Anschutz dropped its oil drilling plans for Weatherman Lessons Learned Draw and donated the leases to the National Trust, which will hold them until they expire. b The media is potentially a powerful and “Considering the size of the resource, the valuable tool. The decision by the tribes to go time and effort it would take to get it, and the public was crucial in gaining widespread value of the cultural resource, we chose to support and shining a critical spotlight on forego the opportunity,” said company Vice corporate behavior. While most companies are President William Miller. “It’s simply risk sensitive to having their reputation damaged, management.”38 Anschutz — both the company and the man — In February 2003, the National Trust for is especially publicity-shy. However, publicity Historic Preservation publicly honored the presents a dilemma to tribes seeking to protect Anschutz Exploration Corp. with a National sacred sites from vandalism through anonymity. b A third party trusted and respected by both the corporation and the Native American stakeholders can help facilitate the process. The Anschutz-Weatherman Draw conflict was resolved through a direct negotiation between a corporation and tribes, mediated by the National Trust, in this case a mutual ally. Factors in this successful negotiation included: the large number of tribes and the unity they maintained as to the goals of the negotiation; strong, active partnerships and alliances with the environmental and preservation communities; the threat of a credible, well-grounded legal challenge; and the prospect of new protec- tive legislation. b Coalition-building and the ability to maintain the coalition’s unity are greatly enhanced by clearly articulated, focused goals reiterated throughout the process.

% Weatherman Draw / Valley of the Shields Scott Prinzing CASE STUDY #5#3 Tom Semple Tom

Calpine and Medicine Lake Highlands 32 Case Study # Study Case 3

Medicine Lake Highlands

edicine Lake Highlands in northeastern California has been used by various tribes Mas a sanctuary and place of healing for 10,000 years. Calpine Corp. is the world’s largest supplier of geothermal energy. In the mid-1980s, without consulting local tribes, the BLM granted geothermal developers 43 leases covering 66 square miles in the Highlands. In 1996, Calpine and CalEnergy (later purchased by Calpine) began consulting with tribes about their plans for two geothermal power plants at Medicine Lake, plants that the environmental impact statements said would forever damage native traditional uses as well as the pristine environment. In May 2000, one project, Telephone Flat, was denied by the federal agencies at the local level, but the denial was overturned in 2002 by the Bush administration after Calpine filed a $100 million takings claim. The Fourmile Hill Project was approved with the condition that there be a five-year moratorium on further geothermal development in the Highlands. The Pit River Tribe and the Native Coalition for Medicine Lake Highlands Defense filed appeals and lawsuits. At the time of the reversal, the DOI set mitigation measures for the projects, and the tribes found new allies through grassroots organizing and the socially responsible investment community. Lawsuits filed in June 2002 and May 2004 by the Pit River Tribe and environmental groups against Calpine and the federal government are still pending. Meanwhile, Calpine has filed for bankruptcy.

The Sacred Site waters have the power to heal and renew. For at least 10,000 years, they have used the Medicine Lake Highlands is a volcanic area in Highlands for ceremony, vision questing, northeastern California, 30 miles east of Mt. prayer, medicinal plant gathering, healing, Shasta, that encompasses forests, lakes, springs, hunting and obsidian trading — activities that caves and glass-like lava flows. The Medicine continue today. Traditionally, the Highlands Lake Caldera is the continent’s largest shield area was considered a sanctuary, a place of volcano — a volcano with broad, gentle slopes peace, where tribal members put down their built by the eruption of fluid basalt lava. weapons to be calmed and cleansed by the land The Medicine Lake Highlands region is and water.41 The area continues to have a sacred to many of the native people in northern powerful impact, felt by non-natives and California, including the Pit River, Modoc, natives alike. As Modoc elder Charlene Jackson Shasta, Karuk and Wintu, who recognize its put it, Medicine Lake “belongs to all people strong healing energy. According to Gene once they get to know what the spiritual part of Preston, former chairman of the Pit River life is all about.”42 Tribal Council, the Highlands “are a place Medicine Lake Highlands is located within where the full magnitude of the Creator’s the Modoc, Klamath and Shasta-Trinity presence can be experienced, a place where the National Forests and is 10 miles south of Lava Creator left messages for the people on how to Beds National Monument. In 1999, the live.”40 Medicine Lake Caldera was designated as a Native people believe Medicine Lake’s Traditional Cultural District by the Interior 33 Case Study # Study Case 3

Department’s Keeper of the National Register of Historic Places.

The Company

Calpine Corp., based in San Jose, California, is an energy company that develops and operates power plants utilizing natural gas and geothermal steam. Founded by CEO Peter Cartwright and a team of four in 1984, Calpine is one of the largest independent power producers in the United States. As of mid-2005, Calpine had 3,500 employees and operated 92 power plants with the capacity to generate 27,000 megawatts of electricity. With 19 plants in The Geysers region of northern California, Calpine is the world’s largest supplier of energy from geothermal sources. In December 2005, Calpine filed for bankruptcy protection, but continued to operate after CEO Cartwright left the company. According to the company’s Web site and annual report, Calpine’s business strategy is based on rapid growth as a supplier of “clean, reliable power.” The company In 2004, the company attempted to reduce claims that it has the lowest emissions of all its debt by selling oil and gas properties and U.S. power companies. In 2002, the company natural gas power plants but not its geothermal increased its generating capacity by more than leases. 70 percent. At the end of 2005, Calpine was Between the mid-1980s and 2001, Calpine constructing eight new facilities, expanding its obtained 43 leases covering some 66 square capacity by an additional 3,500 megawatts. miles of the Medicine Lake Highlands. BLM However, financial analysts questioned initially granted the leases to various geother- Calpine’s growth strategy, and in October mal companies without consulting any local 2003, Moody’s downgraded Calpine’s debt Native American tribes. By 1996, Calpine was rating, citing among other factors that the seeking approval for a geothermal power plant company was financially over-leveraged.43 project at Fourmile Hill, just outside the 34 Case Study # Study Case 3

Medicine Lake Caldera, while CalEnergy scale of Calpine’s proposed development would proposed another at Telephone Flat, in the turn the area into an industrial zone.47 Calpine heart of the caldera. The 48-megawatt has publicly announced intentions to develop Telephone Flat project would encompass eight up to 1,000 megawatts of capacity at Medicine square miles and occupy one-fourth of the Lake. Approval of the first project would Traditional Cultural District. The Fourmile smooth the way for additional plants. Beyond Hill geothermal power plant project would the roads, clear cuts, drill rigs and transmission encompass six square miles and be located just lines, each power plant would entail a 100-foot outside the Cultural District. Calpine pur- tower, operating 24 hours around the clock, lit chased CalEnergy’s leases in October 2001. by bright lights at night. Calpine describes itself as “committed to Despite its “clean, green” image, geothermal fulfilling the continuing need for clean, power can have significant environmental im- efficient, reliable electricity in an environmen- pacts, including disruption of wildlife, loss of tally responsible manner.”44 In March 2004, the medicinal and other plants, air emissions of University of Colorado selected Calpine for a toxic hydrogen sulfide, boron, mercury and sustainable business award for its environmen- arsenic, and groundwater contamination. tal performance in Colorado.45 In addition to Water pollution is of special concern. The pure environmental responsibility, Calpine’s Code of waters of the Medicine Lake Highlands, includ- Conduct emphasizes “integrity” and good ing the Fall River and Pit River, flow into the community relations. California aqueduct system, which provides According to then-CEO Cartwright, water to millions of users throughout the state “Calpine is committed to being regarded as a as far south as San Diego, 650 miles away.48 welcome member of every community where In addition to its spiritual and cultural we have power plants, offices or other facilities.”46 impacts on native peoples, damage to the remote, pristine area would impair recreational uses and what environmental economists call The Impact “existence value” — the value that people place on the existence of wild places, pure water, The federal government reviewed the environ- animals, biodiversity and more. The environmental and cultural impacts of geothermal mental, social, cultural and historical impacts development at Medicine Lake, and conducted of the proposed power plants at Medicine Lake consultations with local tribes starting in 1996. are so severe, according to Clancy Tenley of the An environmental impact statement concluded U.S. Environmental Protection Agency, that that Native American traditional uses would “you could not by any stretch of the imagina- suffer irreversible adverse effects from geother- tion call it green energy.”49 mal development, which led to Medicine Lake’s While environmental and cultural values 1999 designation as a Traditional Cultural are expected to be harmed, the power plants District. However, before this designation could bring local economic benefits. Calpine was made, the BLM renewed Calpine’s leases has promised jobs and college scholarships to in 1998 without consulting local tribes. local tribal members, as well as financial To tribal practitioners, any drilling of the support to the Shasta Tribe in its lobbying of sacred Medicine Lake lands constitutes a the Bureau of Indian Affairs for federal desecration. According to Gene Preston, then- recognition.50 chairman of the Pit River Tribal Council, the 35 Case Study # Study Case 3

The Conflict

The conflict between native groups and Calpine over Medicine Lake erupted in 1996, when the Pit River Tribal Council and other Indian groups were first consulted by the BLM. The Christopher McLeod Christopher Pit River Tribal Council passed a resolution opposing geothermal development after the BLM had already begun a review of William (Jimbo) Simmons protests at Calpine headquarters in the two proposals. Since San Jose, California, January 2006 then, tribes have engaged in what former Pit River Chairman Gene Preston calls “after-the-fact lenging the approval of the Fourmile Hill consultations” and environmental review.51 project in the 2000 decision. (This lawsuit was Many tribal councils and groups opposed denied in February 2004 and was appealed to development at Medicine Lake, though some the Ninth Circuit Court of Appeals.) favored it, concluding that economic benefits In November 2002, the Bush administration outweighed cultural concerns. More than 90 officially overturned the compromise agree- percent of public comment letters opposed the ment. According to Mark Rey, an undersecre- geothermal projects.52 In 1998, BLM renewed tary in the Agriculture Department, the Calpine’s leases, again without consulting local decision was heavily influenced by the Calpine native people. lawsuit. The Justice Department had advised In May 2000, during the final year of the that Calpine had a strong legal position and Clinton administration, the BLM announced a “boatloads of taxpayer money” would be lost if compromise, approving the project at Fourmile the Clinton-era denial was not overturned.54 Hill but imposing a five-year moratorium on With a nod to native concerns, a Record of further geothermal development in the Decision in 2002 approved the originally denied Highlands and blocking the Telephone Flat Telephone Flat project with new conditions. project because of concerns about intrusions in Calpine was required to realign a 13-mile power the Traditional Cultural District.53 In response, line to make it run parallel to an existing road, Calpine sued the federal government for $100 thus avoiding the Traditional Cultural District. million (for “taking” a private property right Calpine also modified the plant design to without compensation). reduce environmental impacts by re-injecting In June 2001, with a new administration water into the underground geothermal pool to setting policy, the BLM lifted the moratorium. be reheated and re-used.55 In April 2002, the government settled the In spite of these mitigations, the Pit River lawsuit with Calpine and agreed to reconsider Tribal Council sought help from Congress. In a the May 2000 compromise. On June 13, 2002, public statement, Sen. Barbara Boxer (D-CA) the Pit River Tribe, the Native Coalition for wrote, “If the project were to proceed, the Medicine Lake Highlands Defense and envi- unique and sacred character of the Medicine ronmental organizations filed a lawsuit chal- Lake Caldera will forever be lost.”56 36 Case Study # Study Case 3

In its official statements, the Interior the Forest Service violated federal laws pertain- Department claimed: “The increased national ing to geothermal development, the environ- and state focus on renewable energy, along with ment, historic preservation, religious freedom the further mitigation measures required, justi- and the Indian trust doctrine. The lawsuits are fied approval of the project.” On the same pending and have been stayed by Calpine’s grounds, the California Energy Commission Chapter 11 bankruptcy protection. provided nearly $50 million in subsidies to the Grassroots organizing also continued to two projects. Opponents point out the irony expand and gain momentum, targeted at that the electricity generated by the plants will monitoring Calpine’s compliance with the be exported out-of-state to the Bonneville conditions of its 2002 project approval. The Power Administration — for use in Idaho, Telephone Flat Geothermal Project Oversight Oregon and Washington.57 Committee was formed, comprised of repre- Subsequent actions taken by both parties sentatives from the Pit River Tribe, Klamath further escalated the conflict. In October 2003, Tribe, Shasta Nation, Native Coalition, Save Calpine applied to the Forest Service for Medicine Lake Coalition, Mount Shasta permission to conduct 200 surveys in the area Bioregional Ecology Center, Medicine Lake around Medicine Lake in search of further Homeowners Association, and an administra- geothermal potential.58 Native American and tor representing Siskiyou County. At a environmental groups, on the other hand, September 2005 meeting to review Calpine’s reached out to a new ally, the socially respon- compliance with the 2002 Record of Decision, sible investment community. Calvert, the the U.S. Forest Service and BLM heard numer- nation’s largest family of socially responsible ous strong objections from the committee mutual funds, filed a shareholder resolution regarding: requesting Calpine to “cease and desist development in the Medicine Lake Highlands and b Failure to involve Native American tribal develop, implement and publish a written members in the archaeology plans. policy on the rights of indigenous peoples.”59 b Failure to adequately survey for endangered Amid substantial publicity, the resolution birds such as northern spotted owls and received more than 8 million votes at Calpine’s goshawks. May 2004 shareholders meeting. Representing b Inadequate plans to control hazardous 4.3 percent of the total number of votes, materials, monitor hydrology and reclaim this was insufficient to pass the resolution. native ecosystems. However, the effort made the company aware that investors placed value on the protection of Beyond the inadequacy of Calpine’s compli- sacred sites. Awareness did not translate into ance with the conditions of the Record of action. In June 2004, Calvert divested its share Decision, the Committee re-opened larger of Calpine, citing the fact that the company did concerns about the project itself. In its defense, not meet the requirements of the mutual fund’s Calpine argued that geothermal energy is a policy on the rights of indigenous peoples. cleaner alternative than nuclear or coal-fired In May 2004, the Pit River Tribe, the Native plants. By the conclusion of the meeting, the Coalition, the Mount Shasta Bioregional Forest Service and BLM had decided to put Ecology Center and a coalition of environmen- further work on the geothermal project on tal organizations filed two lawsuits against the hold. federal government and Calpine challenging “In light of the issues brought up by the approval of the Telephone Flat project.60 In the Committee,” said BLM public affairs officer Jeff suits, the plaintiffs alleged that the BLM and Fontana, “we felt further review was necessary.”61 37 Case Study # Study Case 3

Lessons Learned b Alliances with the corporate social responsibility (CSR) movement can result in more As of October 2006, the future of Medicine leverage on a company. The shareholder inter- Lake remains uncertain, but it is possible to vention of Calvert brought the issue of sacred glean several lessons from the way the conflict sites to the foreground of investors’ minds and has been handled: conveyed to the corporate board the importance of protecting Medicine Lake Highlands. b Compromises made by the government This also generated negative publicity for intended to soften the blow of sacred site Calpine and undermined its green image, and degradation are not final until the legal process is potentially an important new development. is over. Until judicial review is final, a change The alliance with Calvert may presage a larger in administrations and governing philosophies alliance between indigenous people and the can result in the unraveling of a compromise. corporate social responsibility movement. Native groups felt deeply betrayed by the government’s reversal of its original decision b Targeting company shareholders for educa- to deny the Telephone Flat project, and by its tion and advocacy efforts can be effective. lifting of the five-year moratorium on further In this case, if sustained, the activism and geothermal development. Calpine may or may organizing may work to further undermine not have had a strong legal case challenging Calpine’s reputation with investors. Calpine the denial of the Telephone Flat project, but it has been publicly linked with California’s should have been tested by the federal trustees energy crisis, was fined for collusion with and not used as an excuse to undo a decision Enron and, as 2005’s largest U.S. bankruptcy, with which the new administration disagreed. is perceived by investors to be financially weak. Down the road, Calpine might find b Early, prior consultation might have gener- it easier to withdraw from Medicine Lake ated alternative locations for the proposed than to continue to generate bad publicity. geothermal projects (most of northeastern California is volcanic and has geothermal b Leading-edge investment funds such as potential) and a development plan accept- Calvert can play an important role in ad- able to both Calpine and the Indian tribes, vancing corporate awareness of indigenous avoiding the intense ill will that has been issues (see Appendix Three — Calvert’s associated with this conflict and that, as of Indigenous Peoples’ Rights Policy).62 mid-2006, continues to stall the project. b Persistence in building broad, community- based coalitions can be pivotal. Environmental and homeowner organizations can be key allies for Native American groups. Christopher McLeod

Black Mesa’s

Navajo Aquifer and Peabody Energy #4 DY U CASE ST 39 Case Study # Study Case 4

black mesa

lack Mesa in northeastern Arizona is home to 27,000 Navajos and 10,000 Hopis. B Beneath the surface, all on reservation land, are more than 20 billion tons of coal and a huge underground lake whose waters support both native cultures through desert springs that are especially sacred to the Hopi. In a deal brokered by DOI 35 years ago, the two tribes agreed to lease Black Mesa coal and water to Peabody Energy, the world’s largest private-sector coal company. By 2001, Peabody had pumped 40 billion gallons of water from the aquifer to slurry the coal. Surface water is disappearing, springs are drying up, and the tribes’ traditional lifestyles are threatened with extinction. The Indians blame Peabody. Armed with scientific data, Peabody blames a 20-year drought. Peabody pays the revenue-strapped tribal governments millions annually for the water and coal. In a hard-won consensus, the two tribes demanded that Peabody shut down the slurry line. The December 2005 closure of the Mohave power plant in Nevada for air quality violations forced the shutdown of one of Black Mesa’s two coal stripmines and, along with it, the slurry line.

The sacred site tently in sandy washes. Each of the Hopi villages is named after the spring that enables Black Mesa is an elevated landmass shaped like the village to exist. Both Oraibi and Shungopavi a human hand covering 5,400 square miles in are more than 1,000 years old, and are the northeastern Arizona. Lying completely on res- longest continuously inhabited towns in the ervation lands, the arid, ginger-colored plateau United States. is home to 27,000 Navajos and 10,000 Hopis. The springs and surface waters support the Millions of years ago, the Black Mesa area traditional lifestyles of both native groups and was a Pleistocene lake. Over time, the forests are deeply sacred to the Hopis. According to and plants supported by the lake decayed into Vernon Masayesva, former Hopi tribal council a bog, and the organic riches slowly hardened chairman and founder of Black Mesa Trust, into coal. With some 21 billion tons, the coal “We have a sacred covenant with the person that now lies beneath the surface of Black Mesa who was here a long time before our ancestors is the largest coal deposit in the United States.63 arrived. That person, a farmer and powerful Deep in the mesa also lies the Navajo spirit named Maasau, gave the Hopis permis- Aquifer, a large “underground lake” that for sion to use the land, warning them: ‘To survive generations has supported the corn-centered here, you have to have a very strong spiritual agriculture of the village-based Hopi, as well as life. But if you take care of this land and use its the sheep grazing and scattered homesteads of resources in the best possible way, you will be the Navajo. The aquifer stretches 7,500 square here a long time.’ ”64 miles and holds about 17 times the amount of The water is important not only as the sole water in nearby Lake Powell. The pressure of source of consumption and agriculture. Many overlying earth pushes the underground water of the springs fed by the Navajo Aquifer are into subterranean pools, percolating up to the themselves considered alive and sacred and surface through cracks in the sandstone and figure prominently in Hopi spiritual and emerging as desert springs that flow intermit- cultural life. 40 Case Study # Study Case 4

The Company Peabody describes itself as an “innovative, growing, low cost energy provider” and claims Peabody Energy is the world’s largest private- a commitment to “continuous environmental sector coal company. Formerly Peabody Coal, improvement in coal mining and coal use.”65 A the company, headquartered in St. Louis, video on the company’s Web site demonstrates Missouri, took in revenues of $3.6 billion in how it reclaims stripmined land, and highlights 2004, and supplied 10 percent of U.S. electric- four awards for community and environmental ity and three percent of the world’s electric- stewardship from the U.S. Department of ity. Peabody’s coal operations are centered in Interior. Wyoming’s Powder River Basin, Appalachia, However, Peabody does not publicly disclose the Midwest and Southwest, as well as in substantive environmental, safety or social Queensland, Australia. The company also owns performance data through sustainability or more than 25 percent of the Paso Diablo mine, annual reports. The company either has no Venezuela’s largest coal mine. formal code of conduct or does not make one In the mid-1960s, the Department of Interior public. A letter from the chairman, however, brokered an agreement with the Navajo Nation lists six “fundamental principles” that are part and Hopi Tribal Council to stripmine Black of the company’s mission. One is that Peabody Mesa for coal. Documents show that the Hopi will “interact with customers, employees, Tribe’s attorney, John Boyden of Salt Lake City, suppliers, government entities, the public and was being paid by Peabody at the time he the communities in which we operate in a advised the Hopi Tribe to lease Black Mesa coal responsible, ethical and constructive manner.” and water. The mining operations, run by Active in the climate change debate, Peabody Western Coal Company, promised Peabody primarily emphasizes the abundance power to the rapidly growing Southwest and and cheapness of coal and encourages market- much-needed jobs and revenues to the Hopis driven rather than regulatory approaches to and Navajos. The deal included using water reduce fossil fuel emissions.66 In an October from the Navajo Aquifer to transport coal from 2005, keynote address to a global coal confer- remote Black Mesa to a power station in southern ence in Paris, Peabody CEO Greg Boyce Nevada via a slurry line, and a rail line to carry described progress toward zero emissions in coal to a second power plant in Page, Arizona. coal use. “Coal is not the bridge to the future,” Peabody has mined Black Mesa coal and used he proclaimed. “Coal is the future.”67 the aquifer’s water to slurry it for 35 years. Christopher McLeod - vided jobs 228 to

71 onflict C A central axisrevolvesA central of conflict around he even expand the exploitation of underground of underground even exploitation the expand completely. completely. over the past 15 years. pastover the 15 Both Peabody and na aquifers, groups it allies stop native and their to one third of the Tribal Council’s general fund. Council’s Tribal of the one third for 10 percent of the $300 million in revenue million $300 of the percent 10 for Conflict over the coalslurry Conflictthe over line escalated million per year for the water. Annual mine Annual million per water. year the for of the making up 25 percent million per year, tive groups used various tools press their to respective cases — Peabody, to continue and respective continue to cases Peabody, — revenues to the Navajo Nation totaled $30 Nation Navajo revenues the to receivedHopis by Peabody mine. The from the In addition, the mine hasIn addition, the - pro Navajos’ general operating fund and accounting general operating fundNavajos’ and accounting workers. and Hopi Navajo Dragline at Black Mesa Mine were paid $12 million per year, accounting for for accounting paidwere $12 million per year, T - - -

69 In 1970, the water-pro In 1970, 68 pact Im No one disputes one No that the water is or gone, Today, the surface Black water on Mesa is Today, The economic impacts of Peabody’s mining Peabody’s The impactseconomic of The The Indians claimingblamePeabody, that he disagreement, however, betweendisagreement, Peabody and however, the of depletion aquifer has disturbed the inter connected ecology subterranean of and above- disappearing. Many must Navajos drive as far operations, slurry coal the including line, have assets and the There of is Navajo. Hopi great aquifer hydrological “separate form basins” and as miles 25 to water stations they where fill ancient, traditional lifestyles both of groups are of 1.3 billion 1.3 of gallons per year. ancestral and archaeological the sites over ground waters. Marshalling scientific evidence, gave the Hopi villages the Hopi gave their names are shrink have no relationship no Instead,have to each other. been substantial. Peabody paid tribes the $4.3 from the consuming aquifer, the water at rate Generating Station in Laughlin, Nevada. By many to Navajos give sheep-herding. up The miles to Southern California Mohave Edison’s pelled pipeline — the only its of kind one in the past years. 35 The indirectdestruction of the coal slurry line. that its disappearance will a devastating have their pickup trucks. The life-giving springs that threatened with extinction. impact the on spiritual and cultural lives and ing. The disappearanceof haswater forced indigenous culture and livelihood through the impact water has on devastat been more even ing. Peabody sank In 1966, eight wells deep into the Aquifer Navajo to extract water for 55-gallon drums and drive them in back home native the groups cause over the of problem. Peabody claims that surface waters and the Peabody blames a 20-year drought. 2005, Peabody had pumped 40 billion gallons Peabody’s coalPeabody’s mining operations Black on Hopis toHopis abandon many farm terraces and Mesa directly have destroyed than more 2,000 United States — began transporting coal 273 T 1

4 Case Study #4 42 Case Study # Study Case 4

epistemology — the nature and basis of environmental groups, including the Natural knowledge. On its Web site, the company Resources Defense Council, the Sierra Club and claims that “eleven major public and private others. The grassroots-based Trust pursued studies show that the operations will use less many avenues. It challenged Peabody’s studies than one-tenth of one percent of the water and staged a protest outside a shareholders’ stored in the aquifer.” The “most sophisticated” meeting in St. Louis. It organized, lobbied, was a study, funded by Peabody, which devel- voted, and used the Internet to gain native and oped a $2 million three-dimensional computer public support. Masayesva participated in the model and reaffirmed the conclusion that the production and distribution of the Sacred Land potential impacts to springs and streams are Film Project’s public television documentary, In “too small to be measured.”72 Other studies, the Light of Reverence, which highlighted the including “Drawdown: Groundwater Mining on depletion of the aquifer and brought the issue Black Mesa,” by the Natural Resources Defense into the national spotlight in August 2001. Council, have found, however, that the effects Time Magazine followed with a major story of the groundwater extraction are significant, entitled “Indians vs. Miners” (November 5, including seepage of poor-quality water, a 2001) focusing on criticism of Peabody. A key falling water table, and depletion of springs.73 target of Black Mesa Trust’s campaign was the The knowledge systems of the Hopi and Hopi Tribal Council, which, along with the Navajo point to a different conclusion. Navajo Nation, originally granted the leases “In telling you the water on the surface is and supported (and depended upon) the not connected to the aquifer, they are telling mining and slurry operations for more than you your thumb is not connected to your toes,” three decades. says Hopi activist Vernon Masayesva. “In our On the Navajo reservation as well, grass- science, we know everything is interconnected.” roots activists worked hard to educate and Indeed, respect for the sacredness of life and lobby Nation members. In June 2001, Nicole the interconnectedness of nature is the central Horseherder invited Black Mesa Trust and tenet of Hopi knowledge. Says Masayesva, environmental groups to a meeting to discuss “When we turned something sacred, our water, water. Inspired, Horseherder and her husband, into a commodity that you sell, this is where Marshall Johnson, began what would become a our problems began.”74 two-year project to talk to all the community Masayevsa founded Black Mesa Trust in members on Black Mesa about the impacts of 1998 and quickly began receiving help from Peabody’s use of the aquifer. Masayevsa had earlier worked with the tribal government to try to stop the coal slurry line. As tribal chairman in 1990, he helped persuade the Secretary of Interior to withhold a permanent mining permit for Peabody. In an unex- pected turn of events, Peabody’s application for the permit 11 years later would turn into a lightning rod and, potentially, a pivot point. Peabody had to apply for the permit in 2001 as a condition of its agreement with Southern California Edison’s Mohave Generating Station. In the late 1990s, a successful environmental lawsuit brought by the Sierra Club, Grand

Christopher McLeod Canyon Trust, Natural Resources Defense 43 % Mohave Generating Station Case Study # Study Case in Laughlin, Nevada 4

the December 31, 2005, deadline. The California Public Utilities Commission (CPUC) must approve the Mohave pollution control retrofit plans. As the deadline

Christopher McLeod approached, Edison had not started work and CPUC Council and the National Parks and announced it would not allow Mohave to Conservation Association against the Mohave operate beyond the December 31, 2005, power plant — one of the largest sources of deadline without installing air pollution sulfur dioxide in the Western U.S. — resulted controls and securing an alternative source of in a court ruling requiring Southern California water for the slurry line. Edison to retrofit the plant with pollution “In light of the issues surrounding the control equipment by the end of 2005. Before plant,” said Alan J. Fohrer, Edison’s CEO, “we investing in the expensive retrofit, Edison have concluded it is probable that Mohave will wanted assurance of its coal supply and asked be shut down at the end of 2005.”77 Peabody to obtain a permanent mining permit. The Mohave Generating Station was indeed Ignoring growing public opposition, Peabody’s shut down on December 31, 2005, and with it, 2001 application sought permission to expand the Black Mesa Mine, one of Peabody’s two the mine site, raise coal production and, most stripmines on Black Mesa. Closure of the significantly, increase aquifer use on Black mine, in turn, stopped the pumps and elimi- Mesa by 32 percent. nated the controversial slurry line.78 Peabody’s prior applications had been The economic costs of the shutdown of the approved with little public attention. This time, Black Mesa mine is substantial for the Hopi with Black Mesa Trust organizing in Hopi and and Navajo Tribes. Both voted against gam- Navajo communities, DOI received nearly bling on their reservations in the 1990s. In a 7,000 public comments, all opposing the use of second referendum in May 2004, the Hopi the aquifer for the coal slurry line.75 For the again voted overwhelmingly against gaming, first time, even the tribal governments spoke despite high unemployment and a looming out. The Navajo Nation Council and the revenue crunch. The Navajo recently approved chairman of the Hopi Tribe demanded that gaming and are drawing up plans for six Peabody stop pumping from the Navajo casinos.79 Aquifer by the end of 2005.76 The loss of coal mining revenue has sparked Faced with strong public and tribal opposi- worry, desperate behind-the-scenes negotiation, Peabody agreed to disconnect the Black tions with Peabody Energy, and creativity. The Mesa slurry from the Navajo Aquifer by the utilities that own the Mohave power plant are end of 2005 — provided that an alternative now selling “pollution credits” valued at up to water source could be found. In 2003, Peabody $53 million per year to utilities in other parts of applied for a new permanent permit, stipulat- the country. Local activists have crafted a “Just ing that the new slurry water would come from Transition Proposal” calling for $20 million per the Coconino Aquifer, 120 miles south of Black year of the pollution credit money to be invest Mesa. However, environmental review and ed in job retraining, community planning and construction of a new pipeline to bring water sustainable energy development — to harness north to the mine could not be completed by Black Mesa’s abundant wind and sunshine. 44 Case Study # Study Case 4

Lessons Learned Whole Life Expos. In the 1990s, Black Mesa Trust took the lead, reaching out to change the Five lessons emerge from the complex and hearts and minds of local native people, ongoing Black Mesa conflict: building partnerships with environmental groups, as well as educating tribal governments. b Action grounded in a strong spiritual The NRDC “Drawdown” study took a signifi- knowledge and belief system has staying power. cant commitment of time and resources and The commitment of Hopi and Navajo activist- was the result of 20 years of public education leaders has been sustained by their spiritual and outreach, first by traditional Hopi leaders strength and their traditional knowledge and then by Black Mesa Trust. systems. Even while working with partners to challenge Peabody’s scientific evidence on its b A multipronged strategy is needed to own terms, native groups have grounded their address these conflicts. Black Mesa Trust used struggle in a different way of knowing and various tools simultaneously to handle the relating to the natural world. conflict, including analysis and education, publicity and Internet communication, orga- b Grassroots organizing of native people nizing and lobbying. over many years is effective. Native activists struggling to address the Black Mesa conflict b Conflicts between traditional native have been able to build upon a long trajectory groups like Black Mesa Trust and their own of grassroots organizing. Traditional Hopi tribal governments should be acknowledged religious leaders, and their late spokesman, and better understood. The federal government Thomas Banyacya, carried the struggle from is required to deal on a government-to-govern- the 1960s into the 1980s, using everything from ment basis with sovereign tribes. While this lawsuits against the government to effective mandates consultation with tribal governments, media campaigns and appearances at New Age those governments do not always represent traditional religious interests within their community. Thus, it is essential that federal agencies also consult with Native American traditional leaders and practitioners who have knowledge about sacred places. In some cases, non-governmental organizations (NGOs) may represent the traditional cultural concerns of communities, though they, too, are frequently ignored by federal agencies and corporations. Consultation with NGOs and traditional leaders and practitioners should supplement, not supplant, government-to-government consultation with tribes. b Sustainable economic development alternatives are needed. Mining revenues are a lucrative source of much-needed capital for Sam Leone/ St. Louis Post-Dispatch social and economic infrastructure — as well Black Mesa Trust activists (left to right) Andy as employment. Saying no to mining opera- Bessler, Enei Begaye and Leonard Selestewa at tions that threaten sacred sites would be easier Peabody Energy shareholders’ meeting in for elected tribal leaders if they were presented St. Louis, Missouri, May 2002 with viable alternatives. CASE STUDY #5 Christopher McLeod Christopher

Salt River Project and Zuni Salt Lake 46 Case Study # Study Case 5

zuni salt lake

or the 1,500 years or more that the Zunis have lived near Salt Lake in northwestern F New Mexico, they and other tribes have made pilgrimages to the lake to collect salt for religious ceremonies. Surrounding the lake is “The Sanctuary” — burial grounds and a sacred, neutral zone for all tribes. In 1985, the Zuni regained control of the lake and a small portion of the surrounding land from the federal government; the remaining land is under the control of the state of New Mexico, private owners and the federal government. The Salt River Project (SRP) is the nation’s third largest utility, created in 1937 by the state of Arizona. SRP got BLM permission to explore for coal within The Sanctuary in 1985. In 1996, SRP was granted a permit to build Fence Lake Coal Mine just 11 miles from Zuni Salt Lake and to draw water from an aquifer that feeds the lake. Zuni concerns included lake depletion, pollution and disturbance of 5,000 sacred sites and 500 ancestral human burials. After 20 years of facing the Zunis’ intense legal and technical challenges, coalition-building and media efforts, SRP in a surprise move dropped its mine plans in 2003. Two months later, BLM announced an auction of exploration rights for gas and oil on other Sanctuary acreage, prompting the ever-vigilant Zuni Tribe to seek a larger protected buffer zone around the lake.

The Sacred Site known as The Sanctuary, which contains burial grounds and is by tradition a neutral zone for Sixty miles south of the Zuni Pueblo in all tribes in the area. Great respect is shown northwestern New Mexico lies Salt Lake, home to all living beings in The Sanctuary and even of the Zuni Salt Mother deity Ma’l Oyattsiki’i. hunting is forbidden. According to Zuni Fed by mineral springs, the lake fills a small, historian Jim Enote, the tribes “would all pretty shallow volcanic crater. In the summer, the much respect each other in here, each staying lake’s water evaporates, leaving a crystal- in their own camps, even if they were fighting.”81 lized layer of pure sodium chloride around an In 1985, the Zuni Tribe regained control of expanding shoreline. For Zunis, the sacred Salt Lake and 5,000 acres of land surrounding it salt embodies the flesh of the Salt Mother. from the federal government. The remaining Salt Lake is central to spiritual practices of 180,000 acres of The Sanctuary remain under the Zunis, who have lived in their nearby the control of the state of New Mexico, the pueblo for at least 1,500 years.80 Like umbilical federal government, and private owners. cords, sacred trails run north, south, east and west, connecting Salt Lake to Zuni, Laguna, Acoma and other villages. For centuries, the The Company men of Zuni, as well as Acoma Pueblo, Hopi, Navajo, Apache and others have made pilgrim- The Salt River Project (SRP) is the nation’s ages on these trails to the lake to collect salt for third largest utility. Providing power and religious ceremonies. It is a journey that water to customers in central Arizona, SRP continues to this day. is made up of two entities: the Salt River Surrounding the lake is a 185,000-acre area Valley Water Users’ Association, a private 47 Case Study # Study Case 5

corporation founded 100 years ago by ranchers and farmers, and the public Salt River Project Agricultural Improvement and Power District, a political subdivision of the state of Arizona established in the 1930s. The ability to harness water resources has been the foundation for modern-day industrial and urban development in the dry deserts of Arizona. The financing role of government, both federal and state, has been pivotal. A federal government loan financed the first big dam in Arizona, the Roosevelt Dam on the Salt River. To get the loan, local farmers and ranchers founded the Water Users’ Association in 1903 and pledged 200,000 acres of their land as collateral. Over the next 30 years, the Association built three more hydroelectric dams, generating not only water and electricity but also a large amount of red ink. Rescue came in 1937 when the state of Arizona created the SRP Agri cultural Improvement and Power District, which, as a public entity, has the power to issue municipal bonds. By 2004, the Association and the District together managed six large dams and owned eight major power plants, six of vote.83 The system was challenged on constitu- them coal-fired, including two at the Coronado tional grounds but upheld by the Supreme Generating Plant, west of the Zuni Pueblo in Court in 1981 and later by a U.S. Appeals St. Johns, Arizona. Court.84 Combining the Association and the District, In the early 1980s, SRP decided to expand its SRP’s operating revenues in 2004 totaled $2 business operations into downstream activities, billion. According to its Web site, “The District notably, coal mining. In 1985, SRP obtained provides electricity to more than 825,000 retail Bureau of Land Management (BLM) permis- customers in the Phoenix area… The Associa sion to explore for coal within The Sanctuary, tion delivers nearly 1 million acre-feet of water northeast of Zuni Salt Lake. In 1996, over the to a service area in central Arizona. An exten- strenuous objections of the Zuni and other sive water delivery system is maintained and tribes, the state of New Mexico granted SRP a operated by the Association, including reser- permit for an 18,000-acre Fence Lake Coal voirs, wells, canals and irrigation laterals.”82 Mine, 11 miles from Salt Lake. Though it falls, in part, within the public SRP proposed to stripmine 80 million tons domain, SRP is governed by a unique system of coal over 50 years and build a 44-mile rail based on land ownership. SRP’s president, vice line to transport the coal to the Coronado president, two boards and two councils are Generating Plant in Arizona. The electricity elected by a proportionate system whereby a would be sold to 190,000 households in landowner with five acres casts five votes, while Phoenix. To settle the coal dust, SRP plans an owner with half an acre is entitled to half a called for pumping 85 gallons of water per 48 Case Study # Study Case 5

minute from the Dakota (or another) Aquifer. Diversity, on the other hand, found that any SRP’s water rights would have allowed it to mining activity near the lake, including pump up to 900 gallons per minute. extracting large amounts of underground water, New Mexico mining regulations require that would devastate the delicate ecosystem of what actual mining on state-leased lands begin by the Center called “the very rare high desert the third year of a five-year permit. In 1999, oasis.”85 when three years had lapsed, the state waived The Department of Interior (DOI), called this requirement and extended SRP’s permit, upon to issue a federal “life of mine” permit, and in July 2001, the state renewed the original produced two conflicting studies. In 2001, the five-year permit for another five years. Bureau of Indian Affairs (BIA) released a report by an independent hydrologist that concluded that pumping would reduce the water and salt in the lake. The report also found that SRP’s proposed monitoring plan would not be sufficient to detect reductions in the level of the Dakota aquifer. DOI’s Office of Surface Mining (OSM), however, contested the BIA conclusions and recommended that the mine be approved. Because of Zuni concerns about the Dakota Aquifer, the federal permit — granted in May 2002 by Interior Secretary Gale Norton — required that SRP take water from the Atarque

Suzanne Westerly Aquifer, which lies above the Dakota. However, Zuni Salt Lake Coalition protests at Salt River no new hydrological studies supported the Project in Tempe, Arizona in 2002 change, and the Zuni argued that depleting the Atarque Aquifer also would damage the lake. In addition to lake depletion, the potential The Impact impacts of the Fence Lake Coal Mine on the Zuni Salt Lake sacred landscape included:

The overarching concern about the Fence Lake b Disturbing the trails leading to the lake due Coal Mine project was its potential impact on to construction, railroad tracks, roads and the water and salt levels at Zuni Salt Lake. At traffic. 85 gallons a minute, pumping from the un- b Polluting lake water and salt with coal dust derlying Dakota aquifer, which feeds directly and other airborne particles. into Salt Lake, would have drained some two b Disturbing 5,000 sacred sites and ceremo- billion gallons of water over the 50-year life of nial shrines, and 500 ancestral human the mine. The Zunis worried that the entire burials in the area. (When construction of springs-to-evaporation cycle in their sacred the rail line began in the fall of 2002, four lake would be severely depleted or destroyed. human remains were disturbed within the Hydrological studies reached conflicting first few weeks.) conclusions. In determining whether to renew SRP’s permit in 2001, the state of New Mexico’s In 1999, federal officials determined that Coal Mine Program found that the draining of the large Sanctuary area around the lake was the Dakota aquifer would not affect the lake. eligible for listing on the National Register of The Tucson-based Center for Biological Historic Places (Salt Lake itself was already 49 Case Study # Study Case 5

an independent hydrological assessment, which confirmed their fears about the mine’s potential impact on the lake. The majority of New Mexico’s congressional delegation also weighed in, writing to federal regulators to express their concern about damage to the lake. Environ mental groups, notably the Center for Biological Diversity in Tucson, joined with the Zunis to challenge the original New Mexico operating permit of 1996 and its 2001 extension.87 Federal approval for the mine languished during the Clinton administration, stalled by the conflict between the BIA and the OSM over hydrology analysis. In 2001, stepping up their opposition to what Zuni Tribal Council member Dan Simplicio called “cultural genocide,”

Suzanne Westerly the Zunis reached out to non-native communities and formed the Zuni Salt Lake Coalition, During the demonstration at Salt River Project which included Sierra Club, Friends of the headquarters, Cal Seciwa (right), Director of Earth, Seventh Generation Fund, Citizens Coal Arizona State University’s American Indian Institute, Council, Water Information Network, Center presented SRP’s Joe Smith with a sock full of coal for Biological Diversity and the Sacred Land and said: “This is the only coal you will get from the Film Project (see sidebar on page 50). The coali- Zuni Salt Lake area.” tion organized the People’s Hearing on Zuni Salt Lake where 500 people gathered in Zuni to on the Register). Recognizing the potentially offer testimony for protecting the lake. devastating impact of the stripmine, the The Zuni Salt Lake Coalition dramatically National Trust for Historic Preservation in May raised national awareness of how the proposed 2003 listed Zuni Salt Lake and The Sanctuary coal stripmine might affect Zuni culture, their on its list of the Eleven Most Endangered historic homeland, and the surrounding grass- Historic Places in America.86 lands’ wildlife and flora. In October 2001, the Department of Interior decided not to give SRP a mining permit, citing “fierce opposition” The Conflict from the Zuni Tribe and the environmental community. The Zuni Tribe’s opposition to the Fence Lake This decision was reversed in May 2002 stripmine began when SRP obtained its explo- by Gale Norton, the Bush administration’s ration permit from the state of New Mexico secretary of interior. In granting approval, DOI in 1985. Zuni Pueblo leaders spent millions of set six conditions — five on SRP and one on the dollars pursuing administrative, legal, techni- Bureau of Land Management — that DOI said cal, political and educational strategies to stop were the result of intense consultation sessions the SRP project. with Zuni leaders. The conditions on SRP were In the 1990s, Zuni leaders consolidated that the company monitor and report its water support from Hopi and other Pueblo tribes and usage to the state of New Mexico, Interior and lobbied the federal government not to approve the Zuni Tribe; not draw water from certain the project. They pushed the BIA to undertake sources; monitor the Dakota Aquifer; and 50

Case Study # Study Case Organizing Tools What a Difference a Film Makes

few months after the PBS national broadcast of In the use in its campaign against the proposed coal mine. A Light of Reverence, our documentary on Native grant from the Ford Foundation had enabled us to start 5 A American sacred sites, the phone rang at the Sacred Land production of a DVD of In the Light of Reverence, and we Film Project in California. The Zuni Tribe needed a copy of agreed to produce a seven-minute film on Zuni Salt Lake the film to show to a meeting of Zunis who would be and add it to the DVD as a special feature. traveling by bus to Grants, New Mexico, to testify at a Both films were used, as Northern Arizona University public hearing on the Salt River Project’s permit applica- scholar Gary Nabhan says, “to increase vigilance through- tion to stripmine coal near Zuni Salt Lake. We Fed Exed the out the Southwest”— both in tribal communities and the tribe a VHS copy of the film, which arrived the following general public. Many people reported that the films made day. Zuni friends reported later that the film fired up a difference by portraying the problem of sacred site dozens of native viewers who went to the permit hearing protection as visual, emotional, human and accessible to and one after another presented compelling, emotional audiences of diverse cultural backgrounds. In the hands of testimony. teachers and activists, the films helped lead to understand- Several months later, the phone rang again. The Zuni ing, respect and constructive action. Governor wanted to know if we would make a short — Christopher McLeod, Project Director, educational film about Zuni Salt Lake that the tribe could Sacred Land Film Project

consult with tribes to ensure that company around SRP headquarters in Tempe. In one of employees respect the area. The BLM was its most creative actions, the Coalition put a instructed to develop a plan to protect Salt message on a panel truck — which two bill- Lake and The Sanctuary.88 board companies refused to accept — and In response, the Zuni Tribe and their drove around Phoenix with a megaphone coalition allies legally challenged New Mexico’s informing and rallying the public.91 approval of the project and, via public opinion, Zuni Conservation Program Director challenged SRP itself. Coalition members Roman Pawluk recalls, “The Coalition was organized marches and postcard campaigns, one aspect of a broad effort by a core group and produced radio ads in English, Spanish, under the leadership of the Zuni Tribe. Legal Zuni, Navajo, Hopi and Apache asking SRP to challenges, cultural explanations, technical drop its plans to stripmine coal and instead analysis, lobbying efforts, interagency consul- develop renewable energy sources. A high- tation, public testimony, federal mediation and profile 300-mile run was organized for many other coordinated tactics created strong Columbus Day — October 14, 2002. pressure on the state and federal agencies that At the press conference following the run, ultimately deterred SRP’s plans.” Zuni Tribal Councilman and Coalition delegate In a surprise move, SRP announced in Dan Simplicio said, “Stopping the mine is all August 2003 that it was dropping plans for the the more imperative now, considering the fact Fence Lake Coal Mine and would relinquish all that SRP has executed their mining plan permits and leases. Citing economic factors, operation. One of their gravest violations has especially the low price of purchased coal been the removal of human remains. SRP has relative to mined coal to supply its Coronado proven that they are unable to protect cultural plant, SRP said it would instead buy “very resources.”89 competitive” coal from the Powder River Basin Then the Coalition delivered a Declaration of in Wyoming. Utility spokesman Scott Harelson Discovery to an SRP representative, stating that said operating a mine wasn’t as financially the Fence Lake stripmine “perpetuates the attractive as a long-term deal to buy coal at colonization of Indigenous territories” and that modest prices.92 the “Sanctuary Zone and the Zuni Salt Lake are “We believe SRP’s customers will not only sacred sites for the Zuni and other Indigenous save money, but that environmental and Nations, which must be protected for all occupational benefits will be realized by humanity.”90 entering into a new coal contract now instead The Coalition also held 24-hour prayer runs of opening Fence Lake,” said David Areghini, 51 Case Study # 5

SRP’s associate general manager of Power, Americans and their allies should consider Construction and Engineering, thus bringing a whether the project is in an established or new 20-year dispute to a close.93 line of business for the corporation. Relieved and jubilant, the Zuni Tribe b Well-focused, creative, multi-faceted, thanked its thousands of supporters. mainstream-oriented strategies and tactics are Two months later, in October 2003, the essential factors in efforts to protect sacred Bureau of Land Management announced an sites. The Zuni Tribe left no stone unturned in auction of rights to explore for oil and gas on scouting for tactical tools — lobbying, legal 125,000 acres of land east of Zuni Salt Lake. challenges, technical analysis, education, Some of the acreage is within The Sanctuary.94 consultation, mediation, citizen demonstra- Other interests are exploring coal bed methane tions, permit hearing testimony by tribal development in the area. These actions have members, effective use of media — and they renewed the efforts of the Zuni Tribe to seek used them with thoroughness, earnestness and permanent protection for a wider cultural humor. In the end, the Tribe spent more than landscape encompassing the lake and sanctuary. $3 million to safeguard their sacred lake. b The Zunis were consummate networkers Lessons Learned and coalition-builders, gaining support from other tribes and from native organizations At least six lessons can be drawn from the such as the All-Indian Pueblo Council and Zuni-SRP conflict over Salt Lake: the National Congress of American Indians. Not only the Zunis, but virtually all Native b Protecting a sacred site may require Americans who weighed in on the issue, spoke delineating the entire ecosystem that supports with one voice. it. In this case, Zuni ownership of Salt Lake and land immediately around it wasn’t enough to b The Zuni Tribe’s decision to build a broad ensure control over the lake’s health. Even coalition of environmental and social justice ownership of the entire Sanctuary area might groups — and their ability to lead it — was not have provided a guarantee, if underground fundamental to success. The Zuni Salt Lake aquifers feeding the lake could be accessed Coalition catapulted the issue into the main- beyond it. Moreover, even though the SRP stream in Arizona and nationally. A related stripmine was stopped, the BLM has offered lesson is that making common cause with new oil and gas exploration leases, and a new environmental and other advocacy groups can movement is forming to urge the BLM to “look generate what Brian Segee of the Center for before you lease.”95 Biological Diversity called “the power of unity of diverse interests.”96 b A company’s threshold for deciding whether to continue with a project can be b The final lesson is the importance of opaque to outsiders. SRP’s withdrawal decision constancy, patience and perseverance, as was a total surprise, not only to Zunis and their summed up by Zuni Pueblo head councilman supporters, but to industry observers as well. Carlton Albert: “It has been a long 20-year It is likely that SRP’s lack of experience in coal struggle… but we have had our voices heard. I mining played a factor in determining that, feel relieved and it sends shivers down my back given the vociferous opposition, the project had to realize how long this struggle has been and become too risky. A related lesson may be that now it has come to closure… If there is a lesson in calculating the probability of success in a to be learned it is to never give up and stay corporate dispute over a sacred site, Native focused on what you want to accomplish.”97 CASE STUDY #6

Climbing Sacred Rocks?

cave rock Eric Perlman Eric

ites sacred to Native Americans often Shave spectacular, protruding geographical features, such as those at Cave Rock, a remnant of an ancient volcano on the eastern shore of Lake Tahoe in Nevada. To the Washoe people, who have lived in the area for more than 10,000 years, Cave Rock is the domain of powerful spirits, and it is so sacred that only a few elders are allowed to visit it. Cave Rock is eligible for designation as a Traditional Cultural Property on the Department of Interior’s National Register of Historic Places. Located on U.S. Forest Service land, Cave Rock also appeals to recreational rock climbers. For nearly two decades, its year- round access and technical difficulty level have attracted sport climbers from all over the world. Forty-six different climbing routes, facilitated by bolts and other devices put in place by climbers, crisscross Cave Rock. Many routes are inside the culturally sensitive cave-face, where climbers have 53 Case Study # Study Case 6

DEVILS TOWER Christopher McLeod Christopher

constructed a dirt, stone and gravel floor. Rock’s physical integrity, while the presence of Nearby, a highway cuts through the rock and climbers and their gear undermines its spiri- cars whiz beneath the climbers. tual integrity. The Washoe want to ban sport Conflict over climbing at Cave Rock has climbing at Cave Rock. simmered for years. Despite eight years of Climber and photographer Eric Perlman Forest Service-led consultation, the Washoe counters that from his point of view the and the sport climbers, represented by the Washoe had essentially abandoned the site, as Access Fund, remained at an impasse. The evidenced by the large trash pile that had nonprofit Access Fund is supported by contri- accumulated when climbers first arrived and butions from rock climbers cleaned up the area. “Rock and by corporate sponsors climbing is a sacred activity in the recreation industry, that connects us with the including REI, Clif Bar, The earth,” says Perlman. “It’s not North Face and Backpacker fair to deny us our connec- Magazine. tion and impose an exclu- “For us, rock climbing sionary religion.” trivializes the site for the The Access Fund opposes sake of sport,” says Washoe a climbing ban and seeks a Tribal Chairman A. Brian “feasible compromise where Will Parrinello Wallace. all parties can use the area The Washoe feel that Lakota elder Elaine Quiver prays at a without conflict.” As a model, permanent climbing Devils Tower pipe ceremony with Oliver it points to the Park Service’s hardware affects Cave Red Cloud (right) in June 1997. “voluntary” ban on climbing 54 Case Study # Study Case 6

at Devils Tower in Wyoming during the month grounds that it represented an inappropriate of June, when Lakota and other Plains Indians government entanglement with religion. use the tower for spiritual ceremonies, and Mountain States also challenged the voluntary climbers are asked to voluntarily refrain from ban on individual climbers during June, but climbing. Although climbing has declined by that suit was thrown out in April 1998. The 85 percent in June, many native people still Access Fund filed briefs on behalf of climbers in want the Park Service to ban climbing alto- both Devils Tower cases. gether at Devils Tower. The Access Fund supports wilderness and In 1995, the superintendent at Devils Tower habitat preservation as “crucial to the future of National Monument announced a ban on American climbing” but has no policy on sacred commercial climbing during June. But the sites. However, it says it believes that most U.S. decision was short-lived. The next year, the ban climbers “are empathetic to Native American on commercial climbing was overturned in a concerns and will sacrifice climbing opportuni- lawsuit brought against the Park Service by the ties to respect Native American religion — Mountain States Legal Foundation on the without the burden of exclusionary regulations.” In July 2003, the Lake Tahoe Basin management unit of the Forest Service issued a decision banning rock climbing as well as off-road motorized vehicle use at Cave Rock. The Access Fund appealed the decision but the Forest Service upheld it in December 2003. Fearing that the ruling would set a precedent for other climbing sites on public land, the Access Fund immediately filed a federal lawsuit alleging that the climbing ban violated the establishment of religion clause of the First Amendment. A Federal District Court dismissed the action in January 2005. The case currently is on appeal to the Ninth Circuit Court of Appeals.

SOURCES: Petition from the Washoe Tribe to Lake Tahoe Basin Management Unit; Access Fund Web site, “Cave Rock Closed to Climbing,” Rick Curtis, “Cave Rock, NV— Sacred Site or Climbers’ Right,” OutdoorEd.com Blog; Ryan Slattery, “Climbing banned at Sacred Washoe site,” Indian Country Today, December 30, 2003; “Devils Tower,” Sacred Land Film Project, www.sacredland.org;

Christopher McLeod News Release, USDA Forest Service, July 10, 2003. In spite of Native American concerns, many climbers still prefer ascending Devils Tower in June. PART THREE

Toward Corporate Good Practice 56 Good Practice Good

ative Americans increasingly are fighting b Unity within native groups When the Nfor — and winning — the protection of tribes and groups most affected had a unified sacred sites. As the case studies illustrate, stance, they were more likely to get a fair however, these struggles are long, costly, and hearing by government and garner public subject to reversal and new threats. In addition support, and they made it more difficult for to fighting for particular sites, native peoples companies to “divide and conquer” by offering are fighting to codify the principle of protec- compensation or mitigation. tion within the law and, increasingly, within business norms. b Partnerships and public support Active This section considers how to define corpo- partnerships between Native Americans and rate “good practice” with regard to sacred sites large NGOs — particularly NGOs concerned by using the case studies to shed light on what with environmental, historic preservation and motivated corporations to modify or drop human rights issues — along with effective development plans that threatened sacred sites; media campaigns, worked to increase public defining corporate social responsibility (CSR) awareness, scrutiny of corporate practice, and and considering why and how sacred sites support for sacred site protection and preser- advocates might usefully engage the CSR vation. Besides helping to sway legislators and movement; and describing norms for corporate federal administrators, a public spotlight can good practice that are emerging from indig- cast a shadow on a company’s reputation. In at enous groups, faith-based organizations, least one case (Anschutz at Weatherman environmental NGOs and companies regard- Draw), negative publicity was clearly a moti- ing indigenous rights. Finally, we propose some vating factor for negotiation. initial principles on corporate good practice toward sacred sites. b Perseverance and vigilance All of the cases required years of organizing and lobbying. Protection was sometimes won and then What Motivates Corporations? lost, as high-level decisions were reversed. Consistently demanding close environmental The case studies are snapshots of the character and cultural scrutiny, the perseverance of and dynamics of U.S. corporate-indigenous indigenous opponents delayed approvals and conflicts over sacred land. Of the six cases, five raised costs to companies. Moreover, proving were “victories,” at least partially or temporari- the adage, “It’s not over ’til it’s over,” persever- ly, by indigenous people and their allies (Indian ance allowed for surprising twists, such as the Pass, Weatherman Draw, Black Mesa, Zuni air quality lawsuit against Mohave Generating Salt Lake and Cave Rock), and one resulted Station (see Black Mesa) and the sudden in a decision against tribal interests, which is withdrawal from the Fence Lake Coal Mine by being challenged in court (Medicine Lake).98 the Salt River Project, which was influenced, if What accounted for the victories? What not wholly driven by, changes in the market motivated companies to withdraw from price of coal (see Zuni Salt Lake). Staying development plans? Why did some corpora- vigilant and active, however, is emotionally tions choose to continue to resist change and financially costly. despite external pressures? What are the implications for promoting a greater corporate b Lack of early consultation In each case, sense of social and moral responsibility? While the company project that threatened a sacred each case is unique, they share several common site was approved or undertaken without threads: adequately consulting the appropriate native 57 Good Practice Good Christopher McLeod Christopher

political and religious leaders in the early positive outcome, conflicts were handled planning stages prior to the issuance of within the existing U.S. legal framework. permits. By the time companies consulted Companies were strongly influenced by legal Indian communities, they already had invested action. The credible threat of a federal lawsuit significant resources in project planning, which propelled Anschutz to negotiate and eventually only increased their resistance to changing withdraw oil exploration plans at Weatherman course. Dialogue between native people and Draw. At Black Mesa, the combination of a those proposing a project that threatens a lawsuit against Mohave Generating Station, sacred site is the only way to ensure that the threat of a lawsuit by Black Mesa Trust, project sponsors understand potential harm and the rejection of continued groundwater and might consider less damaging alternatives. extraction by the Navajo government moved Peabody to consider ending use of the Navajo b Regulatory oversight and the public interest Aquifer, and ensured the shutdown of the Three of the sacred sites (Weatherman Draw, power plant. The Zuni Tribe allocated a large Indian Pass and Zuni Salt Lake/Fence Lake) are legal budget, and through court-ordered on public lands managed by the Department of mediation was able to communicate their Interior; two others (Cave Rock and Medicine position and delay the SRP project long Lake) are on public land managed by the Forest enough for market forces to take over. In the Service; and one (Black Mesa) is wholly on case of Cave Rock, advocacy by the Washoe reservation land, though DOI’s Office of Tribe and its allies within the Forest Service Surface Mining is responsible for regulation. administrative process resulted in a decision by Though convoluted, federal oversight on public the Forest Service to ban climbing at Cave lands requires both companies and indigenous Rock. groups to make their case in terms of serving the public interest. Such oversight mandates b Legislative advocacy The campaign to input from multiple stakeholders, including protect Indian Pass and other sacred places in native groups. California resulted in the enactment of broader, state-level legislation advocating the protection b Strong legal case and effective use of legal of sacred places and keeping cultural informa- processes In three of the four cases where tion confidential. The new legislation prompted native groups achieved at least a short-term Glamis to abandon its Indian Pass gold mine 58 Good Practice Good

project. This shows that a specific case may ity effects of “naming and shaming,” but they galvanize public officials, tribes, citizens, and watch each other closely, too. the media, and result in a growing perception that protecting cultural resources has a broad b The difficulty of hearing “no” In none of benefit and is in the public interest. the cases were companies voluntarily willing to drop a development plan after consulting with b Bad laws In each case, bad laws, especially indigenous people. While Anschutz and Salt the 1872 Mining Law, stood in the way of River Project eventually changed their position, stronger legal protections for sacred sites on Calpine, Glamis and Peabody fought to the public lands. The Mining Law allows mining to bitter end. Although he was referring to archae trump other uses of the land, creating a legal ologists, Jimmy Arterberry hit the nail on the morass and costly buyouts when environmen- head in a recent address to a conference on tal and cultural protection laws are brought to Consultation Protocols to Protect Native bear. While companies benefit from easy, American Sacred Places: “What part of ‘no’ do cheap access to mineral resources, the convo- you people not understand?”99 luted regulatory process leading to approval is lengthy and costly, particularly when projects b Grounding actions in spirituality When would have a serious negative impact on native peoples clearly articulate the spiritual environmental and cultural resources. underpinnings of a campaign to protect sacred lands and acknowledge those underpinnings as b Lack of a sacred sites law Depending on their primary motivation, they draw strength its specific provisions, a federal (or state) sacred and courage for the struggle. There is power in sites protection law could have promoted early giving voice to and trying to faithfully live out resolution of — and possibly even have aborted one’s core beliefs and spiritual values. More — many conflicts. Such a law could guide the over, the communication of those values by myriad government agencies with their incon- native people to governmental agencies and sistent policies, as well as companies planning corporations can cause non-Indians to think future projects. For native groups, sacred sites differently about the effect of their decisions on legislation would enshrine in law the human sacred places and to reconsider and change right to freedom of religion when practiced at their positions. sites in nature.

b Economics The profit margin, which drives Corporate Social Responsibility shareholder values, continues to be the bottom line for companies. Companies make adjust- The rationale for protecting sacred sites rests ments in response to price changes for inputs ultimately on ethics. Regardless of the ap- or final products, as well as to changes in proach used to handle a conflict about sacred subsidies and energy demand. A focus on land — enactment and enforcement of law or profitability means that those seeking to direct negotiations with companies — native protect sacred places need to consider whether peoples and their allies press a moral case. and how to make an economic or financial case. Generally, companies eschew the role of The most compelling argument may be that moral arbiter, leaving that to governments. other companies in the industry actually do However, companies differ in the extent to pay attention to sacred sites and cultural which they accept ethical, environmental, and resources, consult with tribes and have human social responsibility for their actions and vol- rights policies. Companies fear the bad public- untarily initiate steps to improve their ethical 59 Good Practice Good

performance. As in other aspects of business b Companies that publicly brand themselves management, there are leaders and laggards. as environmentally or socially responsible are Some companies embrace the mantle of more vulnerable to public criticism. Once that corporate social responsibility because they brand is established and has consumer loyalty, fear becoming targets of NGO or consumer the company is loath to lose such value (or campaigns, exposing them and their brands goodwill, in accounting terms). to “reputation risk” or other forms of pub- b Embedding the ethic of sacred sites lic opprobrium. Others have enlightened protection within a CSR framework could CEOs or a history of being good neighbors. eventually make it a norm for all companies, Still others are pressed by investors who are and potentially build support for federal sacred worried about the company’s environmen- sites legislation. Companies are starting to tal or other liabilities or who are seeking develop indigenous peoples’ rights policies and socially responsible investment opportuni- showcase the ways in which communities have ties. There is also evidence that environmen- embraced their operations. tally and socially responsible companies earn higher-than-average financial returns.100 CSR leaders claim that a credible demonstration of social responsibility is fast becom- Norms for Good Practice ing a norm of good business management. Corporate social responsibility is an evolving Skeptics charge that companies often take concept. While it lacks a uniform definition incremental or relatively easy initiatives, such or practice, a CSR template is emerging at the as recycling office paper or reclaiming strip- global level that entails seven norms of good mined land, while continuing more serious, practice.101 These include: ethically objectionable practices. They see b Mission The company defines a commit- social responsibility as “greenwash” — a shield ment to social responsibility as part of its from public criticism or a sword with which to fundamental corporate mission. In Europe, attack critics. the mission often is expressed as triple bottom Engaging the CSR and socially responsible line goals — financial, environmental and investment (SRI) movements can be an effec- social. tive way to advocate for the protection of sacred places: b Principles The company articulates fundamental principles to guide its CSR b SRI shareholders have the power of money mission, often endorsing or borrowing from behind them and an inside track to question existing codes, such as the Global Compact, the activities of a particular company. Global Sullivan Principles or the Environ Shareholder resolutions, like the Calvert mental Principles of the Coalition of resolution at Calpine (see Case Study #3 on Environmentally Responsible Economies Medicine Lake), capture company attention at (CERES, see Appendix One). Sometimes the board level. The higher the resolution vote, companies refer to international legal the more impetus a company has to consult covenants, such as the International Labor and negotiate with indigenous groups or Organization’s core labor rights, or to guide- withdraw from a destructive project. However, lines developed on an industry basis, such as companies are not bound by law to honor the “Toward Sustainable Mining — Guiding shareholder resolutions, even if the resolution Principles” developed by the Mining Associa receives a majority vote. tion of Canada (see Table 3.1). 60 Good Practice Good

b Policies The CSR mission and principles sure, such reports, along with company are expressed in substantive company environ- principles and policies, are available on the mental and social policies. Currently, best Internet. (Currently, the GRI Guidelines practice requires company policies to span the address the rights of indigenous people in Part three pillars of social responsibility: environ- C, Number 5, Social Performance Indicators, mental, social (including the protection of Human Rights, HR 12-14, though there is no human rights and the promotion of economic mention of sacred sites.) development) and good corporate governance. However, few companies address social b Monitoring and verification Disclosure of concerns. Only a handful of companies have a information about social and environmental human rights policy and even fewer have a performance is central to CSR. But how can stand-alone indigenous peoples’ rights policy. investors, affected communities, customers, watchdog groups and other stakeholders trust b Disclosure and reporting Fundamental to that the information voluntarily provided by CSR is a company’s voluntary public disclosure the company is truthful? Companies work with of information about its social and environ- external third parties, such as auditing firms mental performance. Spurred by CERES, the and NGOs, to monitor and verify the informa- reporting movement started with a focus on tion they provide to the public. However, there environment reports, but has since expanded are controversies over many of these verifica- to include reporting on social and economic tions because rather than reviewing specific parameters. Best practice in terms of reporting data, third parties usually consider the internal is the annual or biannual production of a systems and how information is generated. In a sustainability report, often modeled on the sacred site conflict, fair and effective monitor- template developed by the Global Reporting ing might best be provided by an independent Initiative (GRI).102 To maximize public disclo- oversight committee.

b Table 3.1

Mining Association of Canada: Toward Sustainable Mining — Guiding Principles

In all aspects of our business and b Obtain and maintain business b Be responsive to community priori- operations, we will: through ethical conduct. ties, needs and interests through all stages of mining exploration, devel- b Respect human rights and treat those b Comply with all laws and regulations opment, operations and closure. we deal with fairly and with dignity. in each country where we operate and apply the standards reflecting b Provide lasting benefits to local b Respect the cultures, customs and our adherence to these Guiding communities through self-sustaining values of people with whom our Principles and our adherence to best programs to enhance the economic, operations interact. international practices. environmental, social, educational b Recognize and respect the unique and health care standards they enjoy. b Support the capability of communi- role, contribution and concerns of ties to participate in opportunities Aboriginal and indigenous peoples. provided by new mining projects and SOURCE: Mining Association of Canada, existing operations. April 2004, http://www.mining.ca/ 61 Good Practice Good

b Stakeholder consultation A crucial, perhaps central, part of CSR is a company’s willingness to engage with and listen to its stakeholders. Some companies have created stakeholder feedback loops, such as surveys and community advisory councils. Others consult on a more ad hoc basis as the perceived need arises or as a Christopher McLeod Christopher stakeholder demands. Companies that are global CSR leaders participate in a variety of conferences, workshops and networks organized by governments and NGOs. Consultation and the good faith pursuit Today, the articulation of substantive human of communities’ un-coerced, prior, informed rights principles and policies — including indige consent are central in evaluating how well a nous rights — is at the cutting edge of the CSR company upholds human rights in general and movement. The Global Reporting Initiative indigenous peoples’ rights in particular. (GRI) process that defines reporting requirements has become a norm in the CSR move- b Performance The bottom line for a ment, though the early GRI human rights company that has embraced CSR is its actual templates did not require companies to report performance. Internal policies, external on their relations with indigenous peoples. disclosure, and stakeholder consultation count However, the GRI template is being revised and for little if the company violates laws, spills the draft of the next version has a section on the toxics, files spurious lawsuits or destroys rights of indigenous people that requires report- cultural resources. In terms of sacred sites, a ing all incidents involving indigenous communi- company that does not yet have an indigenous ties, such as legal actions or complaints. rights policy still may demonstrate a willing- Norms for good corporate practice on sa- ness to change its investment or operational cred sites probably will be lodged in the larger plans to protect a sacred place. framework of indigenous rights. Situated at the intersection of human rights and environmental sustainability, such a framework is emerging What Is Good Corporate from: indigenous groups and NGOs; faith- Practice on Sacred Land? based groups, socially responsible investors, and other groups pressing for corporate ac- Until the mid-1990s, the primary focus of countability; and also from corporations, the European and North American CSR move- especially in the mining and energy sector. ment was on the environment. Starting in the Indigenous groups and NGOs have begun to late 1990s, however, labor and human rights engage with the CSR movement at global and advocates began to press for a wider canvas. regional levels. At the 2002 World Summit on New research highlighted the relationship Sustainable Development in Johannesburg, between human rights and the environment, South Africa, a coalition led by the Indigenous often profiling corporate conflicts with indig- Environmental Network (IEN) criticized a enous peoples.103 partnership between the global mining 62 Good Practice Good Table 3.2

Principles for Global Corporate Responsibility: Bench marks for Measuring Business Performance

Section 1.4 — Indigenous 10. The company respects indigenous ties for all its employees to obtain an Communities medicines and medical practices. understanding of indigenous culture, treaties, history and current issues. Principles Criteria 1. Where, in a specific national 1. The company seeks to develop Bench marks context, there exists constitutional legis- long-term business relationships in 1. The company, through its pro- lation, or where recognized agreements indigenous communities and does not grammes, policies, practices, and exist, determining policies of reconcilia- terminate its operations without communications implements the tion with indigenous peoples, nations assessing the long-term environmental, principles expressed in the or communities, the company seeks to social, cultural and economic sustain- International Conventions on Human develop its policies in accordance with ability impacts on the indigenous Rights, Agenda 21 and the International that legislation or agreement. community. Labour Organisation Convention 2. The company where it operates in 2. The company communicates its Concerning Indigenous and Tribal post-conflict and/or oppressive business plans in a way that the local Peoples in Independent Countries, situations seeks to implement existing indigenous community can understand Convention 169. policies of reconciliation where they are and seeks to be actively involved in the 2. The company adheres to the in place. development of indigenous businesses. International Convention on Bio- 3. The company respects the cultural, 3. The company seeks and receives Diversity and ensures the protection of religious and social customs and approval from the legitimate local bio-cultural integrity and intellectual traditional knowledge of members of indigenous leadership prior to begin- property rights of the indigenous indigenous communities. ning any business activities. community(ies). 4. The company strives to contribute 4. The company, with the co-opera- 3. The company, as a matter of to the long-term environmental, social, tion of the indigenous peoples con- policy, refrains from litigation that cultural, and economic sustainability of cerned, performs a holistic, comprehen- obstructs the implementation of the the indigenous peoples, nations or sive study of its potential environmental, recognized rights of indigenous peoples communities in which it operates. physical, social, economic, cultural and and respect of local customs and 5. The company respects the bio- spiritual impact on the community and traditions. cultural integrity of indigenous peoples modifies its business plan to ameliorate 4. The company, as a matter of and their lands and traditions. potential harm. policy, refrains from using any imagery, 6. The company only pursues 5. The company negotiates a just and which is offensive to the indigenous economic development upon prior equitable economic settlement with the community in product marketing, resolution and completion of the indigenous community(ies) involved, advertising, endorsements, sponsor- settlement of land claims between the including adequate compensation ships and promotions. indigenous people (or First Nation) and where applicable. 5. The company’s business plans, and the appropriate government(s). 6. The company’s employment its employment policies and practices 7. The development of joint working policies and practices fully accommo- are communicated clearly and are agreements between indigenous date the cultural, spiritual and social available in indigenous languages in communities and companies is a needs of employees who are members both written and oral form. prerequisite to building business of indigenous communities. 6. The company, together with the relationships and commitments. 7. The company develops a transpar- legitimate representatives of the 8. Indigenous peoples, by virtue of ent process for the inclusion of indigenous community, jointly estab- their inherent rights, are entitled to full indigenous peoples as full participants lishes clear decision-making processes participation in the business decisions in business decisions. and structures with a recognized 8. The company provides employ- which pertain to their ancestral lands programme that monitors their and their way of life. ment and training opportunities for, implementation. 9. The company is committed to and actively recruits from, indigenous respecting fully the rights of indigenous communities for all levels of employ- SOURCE: www.bench-marks.org/1_4.shtml peoples as they are recognized by the ment. appropriate jurisdictions and laws. 9. The company provides opportuni- 63 Good Practice Good

industry and the World Conservation Union b Reparations to affected communities and (IUCN) that sought to protect biodiversity as restitution for past damages. “corporate greenwash.”104 Endorsed by more b than 70 groups, the IEN coalition’s statement A U.N. Convention on Corporate called for: Accountability covering the mining, energy and chemical industries. b A moratorium on mining activities until governments and corporations respect In June 2004, the International Indian indigenous peoples’ rights to self-determi- Treaty Council presented a Declaration to the nation and to free, prior and informed Trade Ministers of the Asia Pacific Economic consent to all forms of mining. Cooperation forum meeting in Chile. It stated, in part: “We would like to call your attention to b Downsizing the mining industry. Articles 6 and 7 of the ILO Convention No. 169 b A stop to environmentally damaging which establish that indigenous peoples and practices such as bulk mining and stripmin- communities affected by a development project ing; the use of cyanide heap-leach open-pit or proposal must be consulted in a broad and mining; and sub-marine tailings disposal. transparent way and they must participate in

Table 3.3

Suncor Energy Inc. (Canada): Aboriginal Affairs Policy *

Guidance & Standards through the development of initiatives accept the role or the responsibilities of based on the following guiding government(s). ommunications and Public Affairs principles: Cwill promote the Suncor philoso- In support of this standard and phy in regards to Aboriginal affairs in a b Suncor recognizes and values the guideline, each business unit within manner meaningful to the communi- Aboriginal peoples and communities as Suncor will develop specific initiatives ties, respecting language, social and the original inhabitants and stewards of to address issues of mutual concern to cultural institutions. the land. the Company and the Aboriginal Suncor will develop and implement b Suncor respects the Aboriginal communities in areas of its operations. initiatives and agreements between traditional ways and the political, social The scope and intent of these initiatives Suncor and the Aboriginal communi- and cultural institutions of each will be consistent with the following ties. These initiatives will: community. guidelines: b Suncor acknowledges and accepts b Contribute to the development and b Provide lasting benefits to local responsibility to conduct its operations self-reliance of the Aboriginal peoples. communities through self-sustaining such that Aboriginal communities and b Develop into long-term mutually programs to enhance the economic, Suncor can co-exist in a safe and supportive, interdependent relation- environmental, social, educational and healthy environment. ships. health care standards they enjoy. b Suncor will work to support the

Suncor will work with Aboriginal self-reliance of Aboriginal communities. * The policy was developed in 1997 and communities in response to the social, b Suncor will deal with the communi- revised in August 2003. See Appendix Two economic and environmental issues ties within the context of its role as for the full policy. that are of mutual concern in the areas an energy company, and will not SOURCE: Suncor, www.suncor.com in which the Company operates, 64 Good Practice Good Table 3.4

International Council on Mining and Minerals: Sustainable Development Principles

1 Implement and maintain ethical 4 Implement risk management strate- cling and disposal of our products. business practices and sound gies based on valid data and sound 9 Contribute to the social, economic systems of corporate governance. science. and institutional development of the 2 Integrate sustainable development 5 Seek continual improvement of our communities in which we operate. considerations within the corporate health and safety performance. 10 Implement an effective and transpar- decision-making process. 6 Seek continual improvement of our ent engagement, communication 3 Uphold fundamental human rights environmental performance. and independently verified reporting and respect cultures, customs and 7 Contribute to conservation of biodi- arrangements with our stakeholders. values in dealings with employees versity and integrated approaches to and others who are affected by our land use planning. SOURCE: International Mining and Minerals activities. 8 Facilitate and encourage responsible Council, http://www.icmm.org product design, use, re-use, recy-

the decision-making at every step of the project a central theme of the principles, which call or proposal.”105 for companies to respect indigenous social The Forest Stewardship Council, a global customs, traditional knowledge, bio-cultural NGO eco-labeling and certification body, integrity, medicines and medicinal practices, as makes a commitment to Indigenous Peoples’ well as laws protecting indigenous rights. Rights one of 10 principles for sustainable forest Company principles and policies on indig- management: “The legal and customary rights enous rights are in an early stage, emerging of indigenous peoples to own, use and manage primarily in mining and energy industries, their lands, territories, and resources shall be which are more likely to interact with indig- recognized and respected.” Another principle enous communities. One leader is the Canadian directly addresses environmental sustainability: mining company Suncor Ltd., whose Aboriginal “Forest management shall conserve biological Affairs Policy (see Table 3.3) is the most devel- diversity and its associated values, water oped of the 20 energy companies and 19 min- resources, soils, and unique and fragile ecosys- ing companies that used the GRI framework to tems and landscapes, and, by so doing, main- produce a public sustainability report in 2003. tain the ecological functions and the integrity Of these 39 companies, only nine had any kind of the forest.”106 of indigenous policy at all.108 However, Suncor’s A global coalition of faith-based and policy has no specific guidelines for the protec- environmental groups recently developed a set tion of sacred sites (see Appendix Two for of principles, criteria and benchmarks for Suncor’s full Aboriginal Affairs Policy). corporate relations with indigenous communi- Mining industry associations also are ties, plus 15 other ethical concerns (see Table setting guidelines relevant to indigenous rights. 3.2).107 Ten years in the making, these prin- The Mining Association of Canada calls on its ciples for global corporate responsibility were members to “Recognize and respect the unique developed to help major church groups shape role, contribution and concerns of Aboriginal their investment decisions, especially with and indigenous peoples” (see Table 3.1). The regard to corporations that do business global mining industry, as represented by the in developing countries. International Council on Mining and Minerals, Like the NGO statements, the global does not yet specifically address indigenous principles stress the importance of consulta- rights but encourages its members to “Uphold tion and consent, which they formulate as the fundamental human rights and respect right of indigenous people to “full participation cultures, customs and values in dealings with in the business decisions which pertain to their employees and others who are affected by our ancestral lands and their way of life.” Respect is activities” (see Table 3.4). 65 Good Practice Good

To guide big box retail companies such as should desist from the project and not pursue Wal-Mart and Costco, Christian Brothers legal actions or other measures to override the Investment Services and Domini Social veto of indigenous communities. Investments developed nine guidelines for Respect for bio-integrity Sacred sites are retail store siting.109 Regarding Native American situated within living landscapes. Protection and Hawaiian lands they recommend “compa- of sacred sites requires that companies respect nies should abide by indigenous peoples’ own and protect the ecological and biological definitions of sacred places and seek solutions systems — the cultural landscapes — within in line with their wishes regarding the protec- which the sites are located. Mitigation mea- tion of cultural sites” (see Table 3.5). sures to fence off a site usually are insufficient. What emerges from these various efforts? A complete definition of good corporate practice Respect for indigenous knowledge systems on sacred land is beyond the scope of this paper. Indigenous peoples have their own ways of However, four key principles can be gleaned understanding and describing the ecological, from emerging norms and the six case studies: spiritual and cultural importance of sacred sites. Companies should respect and learn from Early, ongoing consultation Companies indigenous knowledge systems and not harness should conduct thorough, inclusive, substan- Western science to undermine the protection of tive consultation with tribes and other indig- sacred sites. Building bridges between clashing enous community leaders in the earliest stages cultures is a challenge we all face. of a project, and before seeking a legal permit for exploration, scoping, etc. In conjunction with indigenous peoples, companies should Conclusion develop protocols to ensure that the consulta- “In the final analysis, corporate culture must tion is robust. change and embrace the wisdom of disclosure, Consent — the right to say “no” The purpose consultative arrangements and transparency of consultation is not limited to designing when dealing with indigenous communities,” mitigation measures to avoid or minimize says Russel Barsh, Associate Professor of Native damage to a sacred site while a development American Studies, University of Lethbridge, project goes ahead. Indigenous groups must Canada. “Some successful companies have give “free, prior and informed consent” to discovered that grassroots cooperation not development projects that affect sacred sites. only reduces the risks of political conflict and If they do not give consent, the company violence, but improves their bottom line.”

b Table 3.5

Christian Brothers Investment Services and Domini Social Investments Guidelines for Siting Retail Stores

he company will respect indigenous and will not deprive them of these properties, or artifacts of indigenous T peoples’ inherited cultural rights to rights. The company will not damage culture and will consult in appropriate the lands they have traditionally used any archaeological, sacred, burial or ways with any indigenous peoples that for subsistence and cultural activities historical sites, traditional cultural may be affected by its projects.

SOURCE: http://www.cbisonline.com/file/StoreSitingGuidelines.pdf 66 Good Practice Good

It would be difficult to overstate the impor- tribal officials that transcend an individual tance of consultation — and listening — where project. sacred places lay in the path of economic b Inform tribal peoples about the corporation development. Consultation is a process that and its goals, objectives, values and ways of should continue throughout a project, from its decision-making. earliest stages of consideration through its planning, implementation and evaluation. b Ensure that sensitive, confidential infor Both sides have responsibilities. Companies mation is treated with respect and not need to engage political and spiritual leaders, made public. learn about their cultural values and practices, b Inform corporations about potential and acknowledge tribal people’s history. Tribes impacts to sacred sites and associated need to commit to building bridges with communities and identify resources corporate entities on an ongoing basis and, for needing protection and areas that should be specific projects, to share enough information avoided. about themselves to make consultation productive. b Educate corporations about why and how Many companies express frustration that sacred places are important to Native the location of sacred sites is often kept secret, Americans and why it is in the public and withdrawal from site-threatening develop- interest to protect such places. ment projects may seem to be the only option. b Stimulate ongoing dialogue between the Sometimes, no mitigation is acceptable. But involved indigenous groups and corpora- other times, moving or relocating project tions, and in appropriate cases, federal, state components and avoiding sensitive areas can and other agencies, including providing eliminate the problem and the objections. resources to facilitate this dialogue, where Respecting the confidentiality of site locations necessary. and the cultural reasons underlying the importance of spiritually significant places are b Share long-range planning and monitoring good practices. of cultural and other resources at sacred Based on the case studies in this report and sites. the growing international emphasis on disclo- b Ultimately, draw Native Americans into sure, engagement and negotiation, consultation decisions about management practices that is most productive when the involved parties appropriately protect sacred places and adopt these goals: cultural resources. b Inform indigenous communities about proposed plans for a corporate project at As our case studies illustrate, communica- the earliest possible stage of the planning tion based on mutual respect is a powerful process. process that can lead to appropriate and sustainable economic activity while protecting b Consult with Native Americans — both cultural resources. Making the protection of tribal government and traditional people sacred sites a prominent agenda item will be an and their representatives — at the earliest evolutionary step forward in the movement for possible stage of the process. socially responsible investment and corporate b Build ongoing relationships between corp responsibility. ations and traditional cultural leaders and Bibliography, Appendices and Endnotes 68 Bibliography

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resources on the web Secretariat of the Convention on Biological Diversity. Akwé: Kon Voluntary guidelines for the conduct of cultural, environmental and social impact Adler, Peter and Birkhoff, Juliana, National Policy assessment regarding developments proposed to Consensus Center. Building Trust: When take place on sacred sites and on lands and waters Knowledge from “Here” Meets Knowledge from traditionally occupied or used by indigenous “Away”: http://www.policyconsensus.org/publica- communities: http://www.biodiv.org/doc/publications/reports/docs/BuildingTrust.pdf tions/akwe-brochure-en.pdf Baker, Mallen. Companies struggle with the difficul Tanner, Julie, Christian Brothers Investment ties of human rights: http://www.mallenbaker. Services, Inc., and Gladman, Kimberly, Domini net/csr/CSRfiles/page.php?Story_ID=841 Social Investments. Outside the Box: Guidelines Brinkmann, Johannes. Business Ethics and for Retail Store Siting (July 11, 2005): http:/www. Intercultural Communication: http://www.immi. cbisonline.com/file/StoreSitingGuidelines.pdf se/intercultural/nr5/brinkmann.pdf Task Force on the Churches and Corporate Business for Social Responsibility. Issue Brief on Responsibility. Principles for Global Corporate the Rights of Indigenous Peoples: http://www. Responsibility: http://www.cauxroundtable. bsr.org/CSRResources/IssueBriefDetail. org/TaskforceontheChurchesandCorporateRespo cfm?DocumentID=49771 nsibility.html Corporate Citizenship and Sustainability— Thinking about Governance: A Draft Discussion Sustainable Capitalism and New Economics: Paper: http://www.democracyeducation.net/ http://www.sustainability.dpc.wa.gov.au/ Publications/governance.pdf Seminars/Presentations/Birch.pdf Warhurst, Alison. Corporate Social Responsibility CSRwire—Research resources on corporate and the Mining Industry: http://www.mineralre- responsibility: http://www.csrwire.com/l sourcesforum.org/docs/pdfs/merncsr.pdf 69 Appendices

appendix one

CERES Environmental Principles* or sale of products and services that cause environmental damage or health or safety hazards. Protection of the Biosphere We will reduce and We will inform our customers of the environ- make continual progress toward eliminating mental impacts of our products or services and the release of any substance that may cause try to correct unsafe use. environmental damage to the air, water, or the earth or its inhabitants. We will safeguard all Environmental Restoration We will promptly habitats affected by our operations and will and responsibly correct conditions we have protect open spaces and wilderness, while caused that endanger health, safety or the preserving biodiversity. environment. To the extent feasible, we will redress injuries we have caused to persons or Sustainable Use of Natural Resources We will damage we have caused to the environment make sustainable use of renewable natural and will restore the environment. resources, such as water, soils and forests. We will conserve non-renewable natural resources Informing the Public We will inform in a timely through efficient use and careful planning. manner everyone who may be affected by conditions caused by our company that might Reduction and Disposal of Wastes We will endanger health, safety or the environment. We reduce and where possible eliminate waste will regularly seek advice and counsel through through source reduction and recycling. All dialogue with persons in communities near our waste will be handled and disposed of through facilities. We will not take any action against safe and responsible methods. employees for reporting dangerous incidents or conditions to management or to appropriate Energy Conservation We will conserve energy authorities. and improve the energy efficiency of our internal operations and of the goods and Management Commitment We will implement services we sell. We will make every effort to these Principles and sustain a process that use environmentally safe and sustainable ensures that the Board of Directors and Chief energy sources. Executive Officer are fully informed about pertinent environmental issues and are fully Risk Reduction We will strive to minimize the responsible for environmental policy. In environmental, health and safety risks to our selecting our Board of Directors, we will employees and the communities in which we consider demonstrated environmental com- operate through safe technologies, facilities mitment as a factor. and operating procedures, and by being prepared for emergencies. Audits and Reports We will conduct an annual self-evaluation of our progress in implementing Safe Products and Services We will reduce and these Principles. We will support the timely where possible eliminate the use, manufacture creation of generally accepted environmental audit procedures. We will annually complete * Coalition of Environmentally Responsible the CERES Report, which will be made avail- Economies. From www.ceres.org. As of October able to the public. 2006, over 50 companies had endorsed the principles. 70 Appendices

appendix two

Suncor Energy Inc. (Canada) concern in the areas in which the Company Aboriginal Affairs Policy* operates, through the development of initiatives based on the following guiding principles: Scope and Purpose b Suncor recognizes and values the Aboriginal peoples and communities as the his policy guidance & standard (PG&S) original inhabitants and stewards of the land. applies to Suncor Energy Inc. and its T b Suncor respects the Aboriginal traditional subsidiaries world-wide (collectively “Suncor” ways and the political, social and cultural or “Company”). References in this document to institutions of each community. “Suncor Personnel” include directors, officers, b Suncor acknowledges and accepts respon- employees, contract workers, consultants and sibility to conduct its operations such that agents of Suncor. Aboriginal communities and Suncor can Suncor will adapt its Aboriginal Affairs co-exist in a safe and healthy environment. PG&S to reflect legal, constitutional require- b Suncor will work to support the self- ments and Aboriginal/Indigenous issues in all reliance of Aboriginal communities. countries in which the Company operates. b Suncor will deal with the communities The purpose of this document is to enable within the context of its role as an energy Suncor to develop and implement an effective company, and will not accept the role or the company-wide approach to Aboriginal Affairs, responsibilities of government(s). reflecting its core purpose, values and beliefs. In support of this standard and guideline, Guidance & Standards each business unit within Suncor will develop specific initiatives to address issues of mutual Communications and Public Affairs will concern to the Company and the Aboriginal promote the Suncor philosophy in regards to communities in areas of its operations. The Aboriginal affairs in a manner meaningful to scope and intent of these initiatives will be the communities, respecting language, social consistent with the following guidelines: and cultural institutions. Suncor will develop and implement initia- Employment tives and agreements between Suncor and the Participation by Aboriginal people in Aboriginal communities. These initiatives will: employment opportunities throughout b Contribute to the development and self- Suncor’s operations will be developed and reliance of the Aboriginal peoples. supported. Demonstration of this support may b Develop into long term mutually support- include, but is not limited to: ive, interdependent relationships. b Proactive recruitment of Aboriginal people. Suncor will work with Aboriginal communi- b Providing internships and cooperative work ties in response to the social, economic and experience to qualified Aboriginal students. environmental issues that are of mutual b Ensuring that the Manager of Aboriginal Affairs is aware of job opportunities and * From Suncor Web site, www.suncor.com. The required qualifications. policy was developed in November 1997, and revised in August 2003. 71 Appendices Appendices

Cross Cultural Awareness & Understanding competitive. Suncor will establish initiatives Initiatives to promote a greater understand- to help the communities to do business with ing among Suncor staff of Aboriginal culture, the Company. traditional ways, treaties, history and current issues will be developed and may include, but Environment and Safety are not limited to the following: Suncor will work in a safe and responsible manner in the communities in which it oper b Awareness programs for staff to improve ates in order to mitigate any impact it may have mutual understanding and create a cultur- upon the environment. Suncor will also respect ally sensitive work environment. the traditional lands and ways of Aboriginal b Staff participation in cultural and other people. In support of this Suncor will: events in Aboriginal communities. b Provide current and accurate information Education on environment and safety issues and Encouragement and assistance will be inform the community of potential hazards provided to Aboriginal people to pursue in a timely manner. educational studies and skill development in b Reclaim the environment when operations disciplines relevant to Suncor’s operations. cease. Demonstration of this assistance may include, b Incorporate respect for local traditions and but is not limited to: culture in the completion of environmental assessments. b Scholarships/awards to Aboriginal students in pursuit of studies relevant to Suncor’s Public Consultation & Community Involvement operations. Suncor will take steps to ensure that b Participation in workshops, open houses Aboriginal communities and Suncor have a and career fairs directed at Aboriginal clear understanding of each other’s plans and communities. needs and to communicate these plans and b Support and promotion of educational and needs on a timely basis. These steps will curriculum material which creates aware- include, but are not limited to: ness of Aboriginal culture and issues. b Early involvement of Aboriginal people in Business Opportunities & Development business plans that impact them. The development of Aboriginal business b Ongoing dialogue to keep informed of ventures and creation of opportunities for issues and trends and to update Aboriginal those businesses to participate in Suncor’s communities on Suncor’s activities. operations will be supported. This support may b Support programs and events organized by include, but is not limited to: the Aboriginal community and support initiatives and partnerships that promote b Inclusion of Aboriginal businesses in self-sufficiency. appropriate contract award processes. b The communities will be accountable to the b Segmenting such a contract awards into Company for the use of the support. distinct services which Aboriginal business b The Company and the community recog- can undertake. nize the need for direct and open two-way b Commercial relations with the communities communication. will continue to be based on the principle of “value for money”. Contracts will be There can be no hidden or unexplained awarded to businesses that can demonstrate agendas between the Company and the ability to provide quality service and be communities. 72 Apendices

Implementation which will be developed jointly by the Suncor Management is accountable for Company and the communities. The Company establishing work processes which contribute will assign resources for its Aboriginal Affairs to fulfilling Suncor’s commitment to achieve initiatives. The Company will educate its long term, beneficial and interdependent employees on interpretation and application of relationships with Aboriginal peoples and their this standard and guideline. All employees will communities. There will be a long-term view of understand their responsibilities in support of the relationships and the “quick fix” approach this commitment. will be avoided. Initiatives will operate according to defined and measurable objectives, Exceptions –none 73 Appendices

appendix three

Calvert’s Indigenous b Respect land, sovereignty, natural resource Peoples’ Rights Policy rights and traditional homelands of indigenous peoples and communities. alvert is concerned about the survival and b Respect cultural heritage, ceremonial and Csecurity of indigenous peoples around the sacred indigenous sites. world. b Negotiate agreements transparently with Companies operating on or directly impact- independent observers present, and uphold ing the land of indigenous peoples should the self-governance of indigenous commu- support appropriate development that respects nities. indigenous territories, cultures, environment b Avoid exacerbating any tensions between and livelihoods. indigenous communities and local or Calvert will challenge companies that have a national governments. pattern and practice of violating the rights of b Contribute to community-driven develop- indigenous peoples. We will not approve ment and environmental management companies that have a pattern of egregious plans. practices toward indigenous peoples. We will b Hold ongoing consultations and meetings also urge companies that have direct ongoing with indigenous communities and leaders in conflicts with indigenous communities to their area of operations. resolve concerns through dialogue with b Respect self-determination and secure prior indigenous community representatives, informed consent in any transaction shareholders and others. including involving the acquisition and use We may invest in companies whose prac- of indigenous peoples’ property, as well as tices may impact indigenous communities. intellectual property; provide mutually Under these circumstances, Calvert will agreed upon restitution and/or compensa- actively encourage companies, through tion for any property used or acquired from shareholder dialogue and advocacy, to adopt indigenous peoples… and implement company-wide guidelines and policies that take proactive measures in dealing with indigenous communities, including: 74 Appendices

appendix four

the law b American Indian Religious Freedom Act of 1978. he most commonly used set of tools for pro- b Archaeological Resources Protection Act Ttecting Native American sacred places is U.S. of 1979. law, which has proven to be far from adequate. b Native American Graves Protection and In 1988, the U. S. Supreme Court dismissed Repatriation Act of 1990. the possibility of using the First Amendment to b National Historic Preservation Act of 1966, protect sacred sites. In that case, the Court amended 1992. refused to halt the construction of a Forest Service logging road through a Native The American Indian Religious Freedom American sacred area in northern California — Act (AIRFA) states in forceful language that it even though two lower courts had found that is the “policy of the United States to protect the construction of the road would virtually and preserve for American Indians their destroy the ability of the Native American inherent right of freedom to believe, express, plaintiffs to practice their religion. The and exercise… traditional religions… including Supreme Court reversed the lower courts, but not limited to access to sites…”111 finding that because the government’s land However, the Act did not create a manda- management decision did not coerce the tory procedural mechanism for federal agencies affected native practitioners into acting to protect Indian access and prevent damage to contrary to their religious beliefs, nor penalize sacred sites. It contains neither a penalty pro religious activity by denying them an equal vision that can be imposed on violators nor a share of the rights (benefits and privileges “cause of action” enabling native people to go to enjoyed by other citizens), the First court. As a result, the Act has been more of a Amendment provided no basis for the native statement of intent than a practical tool either religious practitioners to challenge that for Indian or federal agencies. According to decision. The clear effect of the ruling was to Jack Trope, executive director of the elevate the government’s property rights over Association on American Indian Affairs, every the native practitioners’ religious rights, as the government agency dealing with Indian tribes Court observed that “whatever rights Indians from the Defense Department to the Park may have to the use of the area…those rights Service has its own policy on sacred lands.112 do not divest the Government of its right to use In the absence of a sacred sites protection what is, after all, its land.”110 The Court, law with teeth, the laws that are generally however, asserted that federal land manage- utilized to protect sacred sites are primarily ment agencies could voluntarily choose to procedural in nature, not substantive. The “accommodate” Native American religious Archaeological Resources Protection Act practices and protect sacred sites. (ARPA) applies to sites that are archaeological Thus, native people have looked to federal in nature and requires that tribes must consent legislation as a vehicle to protect sacred places. to archaeological excavations on tribal land While no federal legislation provides judicially and receive notice of excavation on federal land enforceable protection specifically for sacred if the site is of religious or cultural importance. sites, four acts of Congress acknowledge their The Native American Graves Protection and religious and historic significance: Repatriation Act (NAGPRA) applies to grave 75 Appendices

sites, which are often considered to be sacred. tion with Indian tribes and Native Hawaiian It requires the consent of tribes before burial organizations. sites on tribal land may be excavated and The NHPA has helped to forge a strong provides for notice to and consultation with partnership between preservation and native tribes for grave sites located on federal land. If groups, which has promoted greater public the tribe is culturally affiliated or the burial site awareness and support for the protection of is on land that has been judicially recognized as sacred sites. The Advisory Council on Historic the tribe’s aboriginal land, it is deemed to have Preservation and State Historic Preservation ownership or control over all remains and Offices have also weighed in on occasion to objects that are found in the grave site (unless recommend that approval be denied to devel- there are lineal descendants who can make a opment projects that threaten sacred sites. claim). However, the NHPA specifies only a process; it Probably the most frequently utilized does not dictate an outcome. That means that procedural mechanism for avoiding damage to project approval decisions are subject to sacred sites is a review process within the political and economic pressures and have in National Historic Preservation Act (NHPA). some cases been re-examined and changed. On The “Section 106 process” requires federal at least a few occasions, decisions made during agencies that engage in undertakings — which the Clinton administration to protect certain includes all activities under the jurisdiction of sites were reversed by the Bush administration the agency — as well as projects requiring a as part of its resource development agenda. permit, or that receive funding from the Other federal laws may also have relevance agency, to consider the effect of their actions to the protection of sacred sites laws pertaining on any site or structure which is included, or to the environment or federal land manage- might be eligible for inclusion, in the National ment. One example is the National Environ Register of Historic Places.113 The federal mental Policy Act (NEPA), which requires agency must consult with the State Historic the preparation of Environmental Impact Preservation Office and give the Advisory Statements and Environmental Assessments Council on Historic Preservation (a federal when federal actions will have a significant agency) the opportunity to comment when it impact upon the environment. Studies done chooses to do so. pursuant to NEPA routinely include an analysis In 1992, the NHPA was amended to make of the cultural impacts of proposed federal clear that properties of traditional religious and actions and consultation with Indian tribes, cultural importance to an Indian tribe or and interested individuals are (or should be) Native Hawaiian organization can be eligible part of the process. The Federal Land Policy for inclusion on the National Register. More and Management Act (FLPMA) is another over, the amendment added the requirement example of a law that can be relevant to sacred that federal agencies consult with Indian tribes site protection in a more indirect way. This act or Native Hawaiian organizations that attach provides for the designation of Areas of Critical importance to such sites. Regulations imple- Environmental Concern (ACEC) on Bureau of menting these amendments indicate that Land Management (BLM) land. ACECs are Indian tribes and Native Hawaiian organiza- areas where special management attention is tions should be specifically treated as consult- needed to protect and prevent irreparable ing parties in the process when they request damage to important historic, cultural and such a designation. The NHPA also requires scenic values, as well as to wildlife and the that each federal agency establish a historic environment generally. The BLM has jurisdic- preservation program, carried out in consultation over millions of acres of public land and 76 Appendices

BLM policies affect corporations seeking to Using existing laws to protect sacred sites extract resources on those federal lands. has shortcomings. The main problem is that, Recently, another law, the Religious Freedom unlike several other countries, such as Restoration Act (RFRA), has been raised in Australia and Canada, there is no substantive court cases dealing with the protection of federal sacred site legislation in the United sacred lands. RFRA is a general law that seeks States. The lack of a government mandate, and to protect the free exercise of religion by the inability to go to court to enforce it, means requiring the government to justify its actions that there is no true and lasting protection for by showing that it has a compelling interest sacred sites. An administrative decision to and no less restrictive alternative whenever reject a particular development proposal can government action would substantially burden be, and often has been, reversed. Moreover, the free exercise of religion. RFRA does not even when one proposed project is quashed, specifically mention Indian religions or sacred the site is vulnerable to a new one. sites and it is unknown at present to what Thus, the legal set of tools must also include extent this law will provide substantive legislative advocacy. There has been an ongoing protection to threatened sites. effort to pass new national legislation to protect The Clinton administration attempted to sacred places, but the political obstacles are rectify the shortcomings of existing law by huge. Mining interests, developers, private issuing Executive Order 13007. The order property rights groups, and even federal land directed all federal agencies to: 1) accommo- management agencies like the National Park date Indian access to sacred sites, and 2) avoid Service are resistant. Meanwhile, on the tribal damage to the physical integrity of such sites. side, the great variety of circumstance, cultural It also instructed agencies to maintain confi- practice and need for confidentiality makes dentiality of sites. The Bush administration has one-size-fits-all national legislation very kept the order in force, although questions have difficult to write, let alone pass. been raised about the level of commitment by Total reliance on legal mechanisms also has federal agencies since the change in adminis- drawbacks. The legal system is inherently adver- trations. sarial: There are winners and losers. Laws tend Norms relevant to the protection of sacred to be rigid and often cause over-reliance on sites are also emerging at the international level litigation as opposed to negotiation and engage- within various human rights instruments. The ment. It is doubtful that a law could be written only binding international treaty focused that would cover all possible types of sacred exclusively on indigenous rights, however, is sites. Also, the letter of the law and the ade- International Labor Organization (ILO) No. quate enforcement of existing law are two sepa- 169. One of its general principles states: “The rate matters. The key to social and corporate people concerned shall have the right to decide acceptance of the legitimacy of Indian claims to their own priorities for the process of develop- protect sacred sites is respect. Laws help to ment as it affects their lives, beliefs, institutions build respect but they cannot mandate it. and spiritual well-being and the lands they occupy or otherwise use…”114 Thanks to Jack Trope for contributing to this section on the law. 77 Endnotes

Endnotes

1 Suzan Harjo, quoted in Ryan Pearson, “Tribes Band to 14 Quoted in Suzan Shown Harjo, “Sacred space: federal agen- Preserve Sacred Sites,” The Columbian, Associated Press, cies are giving a green light to development that threatens December 6, 2002. Native American religious freedom,” Colorlines Magazine, March 22, 2003. 2 Ibid. 15 Quoted in Charles Levendosky, “Gold Mine Would 3 Judith Nies, “The Black Mesa Syndrome: Indian Lands, Vandalize Indian Cultural Sites,” Faultline Magazine, Black Gold,” Orion Magazine, Summer 1998, http://www. January 3, 2002, http://www.faultline.org/news/2002/ oriononline.org/pages/om/archive_om/Nies.html 16 P. Zihlmann, Investment Management, November 2003, 4 Quoted in Medicine Lake Video, http://www.medi- http://www.gold-eagle.com/editorials_03/zihlmann112003. cinelakevideo.org/realvideo.html html 5 William Miller, VP of Anschutz Exploration, quoted in 17 Glamis Web site, Corporate Profile, http://www.glamis. Geoffrey Mohan, “Mogul Keeps Tribal Site Sacred,” com/corporate/index.html Los Angeles Times, April 24, 2002. 18 Glamis Web site, Corporate Profile, http://www.glamis. 6 Marcia Yablon, “Property rights and sacred sites: federal com/corporate/index.html regulatory responses to American Indian religious claims on public lands,” Yale Law Journal, May 1, 2004. 19 See “Got Cyanide?” Great Basin Mine Watch, http://www. greatbasinminewatch.org/gotcyanide.html 7 William Miller, op cit. 20 James Kilphuis, “Cyanide Spill: Mourning for the Tisza River 8 This section draws from “Consultation Protocols for in Hungary,” February 16, 2000, http://www.rnw.nl/hot- Protecting Native American Sacred Places,” Draft, October spots/html/hungary000216.html 28, 2003, Lawyers Advisory Committee to Sacred Lands Protection Forum. 21 See Associated Press, “Environmental group plans to fight cyanide,” March 29, 2004, www.MontanaForum.com 9 In Ryan Pearson, “Tribes Bank to Preserve Sacred Sites,” The Columbian, Associated Press, December 6, 2002. 22 US Department of Interior, Regulation of Hardrock Mining, M-36999, December 27, 1999, page 3. The Advisory Council 10 See Marcia Yablon, “Property rights and sacred sites: federal is an independent agency created by the National Historic regulatory responses to American Indian religious claims on Preservation Act. public lands,” Yale Law Journal, May 1, 2004. 23 US Department of State, Notice of Arbitration Under the 11 Properties eligible for inclusion on the National Register Arbitration Rules of the United Nations Commission on are called “Traditional Cultural Properties.” Standards International Trade Law and the North American Free include “association with cultural practices or beliefs of a Trade Agreement. living community that a) are rooted in that community’s history and b) are important in maintaining the continuing 24 US Department of Interior, op cit, footnote 7. cultural identify of the community.” From National Register Bulletin 38. 25 Author interview with Chris Peters, Seventh Generation Fund, February 2004. 12 Fergus McKay, “The Rights of Indigenous Peoples in International Law,” in Lyuba Zarsky, ed. Human Rights and 26 US Department of State, op cit, footnote 8. the Environment, Conflicts and Norms in a Globalizing 27 Quoted in Ryan Pearson, “Cohesive plan sought to protect World, London: Earthscan Press, 2002. sacred lands – Nevada company wants to mine gold from 13 Listed in Ryan Pearson, “Tribes Bank to Preserve Sacred Indian Pass,” Indian Burial and Sacred Grounds Watch, Sites,” Associated Press, December 6, 2002. See also December 3, 2002, http://www.ibsgwatch.imagediinn.com National Congress of American Indians, www.ncai.org 28 Geoffrey Mohan, “Bush Administration OKs Billionaire’s Montana Oil Well,” Los Angeles Times, May 22, 2001. 78 Endnotes

29 Andrew Buncbombe, “Montana Indians take on oil chief 47 Gene C. Preston, Congressional Testimony, Federal in the battle of Weatherman Draw,” The Independent Document Clearing House, June 18, 2003. (London), May 26, 2001. 48 Prof. R. Curry, in Medicine Lake video, http://www.medi- 30 Reported in Billings Outpost, “BLM speaks on Weatherman cinelakevideo.org/realvideo.html Draw but will Anschutz,” May, 30, 2001, http://www.billings news.com 49 Quoted in Medicine Lake video, http://www.medicinelakevideo.org/realvideo.html 31 Geoffrey Mohan, op cit. 50 Sacred Land Film Project, “Medicine Lake Highlands,” 32 Quoted in “Weatherman Draw,” Sacred Land Film Project, http://www.sacredland.org/endangered_sites_pages/ http://www.sacredland.org/endangered_sites_pages/ medicine_lake.html weatherman_draw.html 51 Gene C. Preston, Congressional Testimony, Senate 33 The ten tribes included Comanche, Northern Arapahoe, Committee on Indian Affairs, June 18, 2003. Northern Cheyenne, Crow, Blackfeet and Eastern Shoshone. 52 Ibid. 34 Geoffrey Mohan, op cit. 53 Dean E. Murphy, “US Approves Power Plant in Area 35 Geoffrey Mohan, op cit. Indians Hold Sacred,” New York Times, November 28, 2002. 36 Geoffrey Mohan, op cit. 54 Ibid. 37 Quoted in “Weatherman Draw Energy Development,” 55 US Department of the Interior, “Calif. Geothermal Power Wilderness Society, undated, http://www.wilderness. Plan Approved,” News Release, November 26, 2002. org/WhereWeWork/Montana/Weatherman.html 56 Quoted in Mark LeBeau, “Indian Country Today, Guest 38 Quoted in Christopher Thorne, “Oil Company Drops Column,” Knight Ridder/Tribune Business News, June 4, Indian Plans,” AP Online, April 23, 2002. 2003. 39 Quoted in National Trust for Historic Preservation Press 57 Suzan Harjo, op cit. Release, “The National Trust Honors Anschutz Exploration Corporation as Corporate Good Neighbor,” http://www. 58 Alex Breitler, “Calpine’s plans for resource surveys draw nationaltrust.org/news criticism,” Redding Record Searchlight, October 7, 2003. 40 Gene C. Preston, Chairman, Pit River Tribal Council, 59 “Calvert Announces 2004 Shareholder Resolutions: Testimony to the Senate Committee on Indian Affairs, US Continues Push for Board Diversity, Greater Corporate Congress, June 18, 2003. Transparency,” Business Wire, February, 9, 2004. 41 Gene C. Preston, Chairman, Pit River Tribal Council, 60 Don Thompson, “Activists sue over Medicine Lake power Testimony to the Senate Committee on Indian Affairs, US projects,” Associated Press, May 20, 2004. The groups Congress, June 18, 2003. are the Medicine Lake Citizens for Quality Environment, Klamath Forest Alliance, California Wilderness Coalition, 42 Speaking in Medicine Lake Video, director David Munson, and Fall River Wild Trout Foundation. http://www.medicinelakevideo.org/realvideo.html 61 Quoted in Paul Boeger, “Geothermal Project Put on Hold,” 43 Reuters, “Moody’s cuts Calpine senior unsecured rating,” Mount Shasta Herald, October 5, 2005. October 20, 2003, http://www.wildcalifornia.org 62 A new development in the SRI arena is the mandatory 44 Calpine Web site, http://www.calpine.com disclosure of how mutual funds vote on shareholder resolutions. If future resolutions are filed on sacred sites, the 45 Calpine, Press Release, “University of Colorado Honors public will be able to find out whether or not their invest- Calpine With Prestigious Environmental Award,” http:// ments supported a particular resolution. www.calpine.com 63 Judith Nies, “The Black Mesa Syndrome: Indian Lands, 46 Calpine, “Our Commitment to Integrity, Message from the Black Gold,” Orion Magazine, Summer 1998, http://www. CEO,” http://www.calpine.com oriononline.org/pages/om/archive_om/Nies.html 79 Endnotes

64 Quoted in Sean Partrick Reily, “Gathering Clouds,” 80 “Zuni,” Emuseum, Minnesota State University, Mankato, Los Angeles Times, June 6, 2004. http://www.mnsu.edu/emuseum/cultural/northamerica/ zuni.html 65 Peabody Energy Web site, http://www.peabodyenergy.com 81 Quoted in Winona LaDuke, “The Salt Woman and the Coal 66 “Coal is a Cheap Energy Source,” Mining Magazine, Mine: Lighting up Phoenix Could Extinguish a Zuni Deity,” August 1, 2000. Sierra Magazine, November 1, 2002. 67 See “Coal: Global Solutions for Global Needs,” Presentation 82 http://www.srpnet.com/ by Greg Boyce, President and Chief Operating Officer Elect to CoalTrans Silver Anniversary Conference, October 24, 83 The exception is the District’s at-large Board members. 2005, on Peabody Energy Web site. 84 See “Profile of the Salt River Project,” compiled by George 68 Kennecott Copper bought Peabody Coal in 1966. Draffan, October, 4, 2001, http://www.endgame.org/sal- triver.html 69 Sacred Land Film Project, “Black Mesa,” http://www.sacredland.org/endangered_sites_pages/black_mesa.html 85 Quoted in Suzanne Westerley, “Zuni Salt Lake Coalition Delivers ‘Declaration of Discovery’ to SRP Representative 70 Peabody Web site, http://www.peabodyenergy.com and on Columbus Day,” East Valley Tribune, November 2, 2002, Sean Patrick Reily, “Gathering Clouds,” Los Angeles Times, http://www.citizenscoalcouncil.org June 6, 2004. 86 See the National Trust Web site, http://www.nationaltrust. 71 Sean Patrick Reily, “Gathering Clouds,” Los Angeles Times, org/11most/2003/zunilake.html June 6, 2004. 87 “Zuni Salt Lake (Arizona USA) Saved From Coal Develop 72 Peabody Web site, http://www.peabodyenergy.com. The ment,” International Society for Salt Lake Research, Web site does not provide references or links to any of the August 10, 2003, http://www.isslr.org/news/newsone. studies. asp?qnewsid=209 73 Drawdown: Groundwater Mining on Black Mesa, by the 88 “N.M. Tribe challenges coal mine approval,” indianz.com, Natural Resources Defense Council, October 2000, http:// June 4, 2002, http://www.indianz.com/News www.nrdc.org/water/conservation/draw/drawinx.asp 89 While the mine proposal was stopped before ground was 74 Quoted in Sean Patrick Reily, “Gathering Clouds,” Los disturbed, more than seven bodies were excavated during Angeles Times, June 6, 2004. preliminary survey work for the rail line and were stored in 75 Laura Inouye, “A water fight in the desert,” Oxfam America, an SRP trailer. October 24, 2002. 90 Quoted in “Zuni Salt Lake Coalition Delivers ‘Declaration 76 Both the Hopi tribal chairman and the Navajo Nation presi- of Discovery’ to SRP Representative on Columbus Day,” dent initially supported Peabody’s mine permit application. East Valley Tribune, www.citizenscoalcouncil.org However, popular opinion on both reservations had turned 91 Brett Wilison, “Going mobile: activists take their censored against Peabody. In July 2003, by a margin of 48 to 12, the message to the streets,” Sierra Magazine, July 1, 2003. Navajo Nation Tribal Council approved a resolution asking the Secretary of Interior to intervene and force Peabody 92 AP Worldstream, “Arizona power company pulls out of coal to disconnect from the Navajo Aquifer by the end of 2005. mining effort at American Indian salt lake,” August 5, 2003. Interior is now considering Peabody’s application and could approve it, though they are unlikely to do so in the face of 93 Quoted in “Zuni Salt Lake (Arizona USA) Saved From Coal Navajo Nation objections. Development,” International Society for Salt Lake Research, August 10, 2003, http://www.isslr.org/news/newsone. 77 Quoted in Sean Patrick Reily, “Gathering Clouds,” Los asp?qnewsid=209 Angeles Times, June 6, 2004. 94 UPI, “Analysis: Oil leases may spark new fight,” October 22, 78 The other is the Kayenta stripmine. 2003. 79 Ibid. 80 Endnotes

95 “New Mexicans Rally for Protection of Public Lands from 105 Declaration and Position of indigenous peoples to the Oil, Gas and Coal Development,” October 22, 2004, www. meeting of the APEC trade ministers, Chile, June 4–5, citizenscoalcouncil.org. In addition, in 2006, the Zuni Tribe 2004, http://www.treatycouncil.org asked the BLM to use the Sanctuary Zone to define the boundary of an “Area of Critical Environmental Concern 106 Forest Stewardship Council, Principles and Criteria, (ACEC)” in the BLM’s revised Resource Management Plan. www.fscus.org 96 “Zuni Salt Lake (Arizona USA) Saved From Coal 107 The Global Principles Steering Committee was com- Development,” International Society for Salt Lake Research, prised of members from the Christian Center for Socially August 10, 2003, http://www.isslr.org/news/newsone. Responsible Investment (Australia), Hong Kong Christian asp?qnewsid=209 Industrial Committee, Kairos: Canadian Ecumenical Justice Initiative, Interfaith Center for Corporate Responsibility 97 Cal Seciwa, “Zuni Salt Lake and Sanctuary Zone: Protected (New York), Bench Marks Foundation of Southern for Future Generations,” August 5, 2003, on http://www. Africa for Corporate Responsibility, Friends of the Earth zunispirits.com (Colombia), and the Ecumenical Council for Corporate Responsibility (UK). 98 Another case referred to in the Cave Rock study, Devils Tower, was a negotiated compromise. 108 See Global Reporting Initiative, http://www.gri.org 99 Quoted in Brenda Norrell, “Warriors of the sacred places,” 109 “Outside the Box: Guidelines for Retail Store Siting” Indian Country Today, November 11, 2003. (July 11, 2005) by Julie Tanner, Christian Brothers Investment Services, Inc., and Kimberly Gladman, Domini 100 Tsoutsoura, Margarita, “Corporate Social Responsibility Social Investments, http://www.cbisonline.com/file/ and Financial Performance,” University of California, StoreSitingGuidelines.pdf Berkeley, Working Paper, March 2004, online at: http:// repositories.cdlib.org/cgi/viewcontent.cgi?article=1008& 110 See Marcia Yablon, “Property rights and sacred sites: context=crb, and also, Waddock, Sandra A., and Samuel federal regulatory responses to American Indian religious B. Graves, “The Corporate Social Performance-Financial claims on public lands,” Yale Law Journal, May 1, 2004. Performance Link,” Strategic Management Journal, 1997. 111 This section draws from “Consultation Protocols for 101 Some of the key players are European NGOs and com- Protecting Native American Sacred Places,” Draft, October panies, including AccountAbility, the World Business 28, 2003, Lawyers Advisory Committee to Sacred Lands Council for Sustainable Development, and SustainAbility. Protection Forum. See also the Eldis Resource Guide to Corporate Social Responsibility, http://www.eldis.org/csr/. For a skeptical 112 In Ryan Pearson, “Tribes Bank to Preserve Sacred Sites,” The Columbian, Associated Press, December 6, 2002. view, see “Two-Faced Capitalism,” The Economist, January 22, 2004. 113 Properties eligible for inclusion on the National Register are called “Traditional Cultural Properties.” Standards 102 See www.gri.org. For an evaluation of the quality of compa- include “association with cultural practices or beliefs of a ny sustainability reports, see Trust Us: The Global Reporters living community that a) are rooted in that community’s 2002 Survey of Corporate Sustainability Reporting, UNEP history and b) are important in maintaining the continuing and SustainAbility, www.sustainability.com cultural identify of the community.” From National Register 103 See for example, Human Rights and the Environment: Bulletin 38. Conflicts and Norms in a Globalizing World, Lyuba Zarsky, Fergus McKay, “The Rights of Indigenous Peoples in ed., London: Earthscan Press, 2002. 114 International Law,” in Lyuba Zarsky, ed. Human Rights and 104 “United Outcry Against Mining Greenwash!” Indigenous the Environment, Conflicts and Norms in a Globalizing Environmental Network, www.ienearth.org World, London: Earthscan Press, 2002.