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Report to the Secretary of Agriculture: USDA Policy and Procedures Forest Service Office of Tribal Relations REPORT TO THE SECRETARY OF AGRICULTURE USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites Prepared by: USDA Office of Tribal Relations and USDA Forest Service USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS December 2012 The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, DC 20250-9410, or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. August 2012 USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS December 2012 Table of Contents EXECUTIVE SUMMARY ............................................................................................................ 1 INTRODUCTION ........................................................................................................................................................................ 6 METHODOLOGY .................................................................................................................................................................... 12 GATHERING INFORMATION .................................................................................................. 12 PERSONNEL CONTRIBUTING TO THIS EFFORT .................................................................. 13 ACKNOWLEDGEMENTS AND RECOMMENDATIONS ................................................................................... 15 ACKNOWLEDGEMENTS .......................................................................................................... 15 RECOMMENDATIONS ............................................................................................................. 24 I. RELATIONSHIPS/COMMUNICATIONS ........................................................................ 25 II. DIRECTION/POLICY ....................................................................................................... 27 III. ON-THE-GROUND ACTIONS ......................................................................................... 29 SACRED SITES AND THE FOREST SERVICE ........................................................................................................ 30 SYNTHESIS OF THE LEGAL LANDSCAPE ............................................................................................................. 30 OVERVIEW ................................................................................................................................ 30 GOVERNMENT’S TRUST RESPONSIBILITY TO TRIBES ..................................................... 31 FIRST AMENDMENT OF THE CONSTITUTION ..................................................................... 32 THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE CLAUSE ............................. 32 STATUTES SUPPORTING SACRED SITE PROTECTION....................................................... 34 OTHER AUTHORITIES SUPPORTING SACRED SITES PROTECTION ................................ 39 LAND MANAGEMENT PLANNING PROCESSES .................................................................. 40 RECOGNITION/NEXT STEPS .......................................................................................................................................... 43 APPENDICIES ........................................................................................................................................................................... 45 APPENDIX A: GLOSSARY APPENDIX B: EXECUTIVE ORDER 13007 ON INDIAN SACRED SITES APPENDIX C: 2008 FARM BILL CULTURAL AND HERITAGE COOPERATION AUTHORITY PROVISIONS APPENDIX D: SUMMARY OF SACRED SITES LISTENING SESSIONS APPENDIX E: SUMMARY OF FOREST SERVICE EMPLOYEE COMMENTS APPENDIX F: SELECTED COURT DECISIONS APPENDIX G: EXISTING AUTHORITIES APPENDIX H: SUMMARY OF 2003–2007 SACRED SITES POLICY REVIEW APPENDIX I: SECRETARY VILSACK LETTER REQUESTING SACRED SITES REVIEW APPENDIX J: SUMMARIES OF COMMENTS AND CHANGES TO DRAFT REPORT USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS December 2012 THIS PAGE INTENTIONALLY LEFT BLANK USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS December 2012 EXECUTIVE SUMMARY Report to the Secretary of Agriculture USDA Office of Tribal Relations and Forest Service Policy and Procedures Review Indian Sacred Sites In 2010, Secretary of Agriculture Thomas J. Vilsack directed the U.S. Department of Agriculture’s (USDA) Office of Tribal Relations and the USDA’s Forest Service (Forest Service) to engage in dialogue with American Indian and Alaska Native (AI/AN) Tribal leaders to find out how USDA can do a better job of accommodating and protecting AI/AN sacred sites while simultaneously pursuing the Forest Service’s multiple-use mission. Secretary Vilsack requested information about unintended consequences of land management decisions affecting sacred sites and AI/AN communities whose cultural survival is often deeply rooted in these sites. “I have asked the USDA Office of Tribal In response to Secretary Vilsack’s request, the USDA Relations to work closely with the USDA Office of Tribal Relations and the Forest Service formed a Forest Service to immediately begin team, led by senior executives, to talk to Tribes and other convening consultative sessions with Native AI/AN communities about how the Forest Service can do a American leaders. This dialogue should be about how we can do a better job better job incorporating the accommodation and protection addressing sacred sites issues, while of sacred sites into the agency’s multiple-use mission. This simultaneously balancing pursuit of the Report to the Secretary of Agriculture was developed in Forest Service’s mission to deliver forest response to Secretary Vilsack’s request. goods and services for current and future generations. We need to examine the What is in this Final Report? effectiveness of existing laws and This report and its appendices constitute a review of law, regulations in ensuring a consistent level of policy, and procedures, with recommendations for changes sacred site protection that is more based on Tribal consultation and public comments. acceptable to tribes.” – Secretary Vilsack, July 2, 2010 This report reflects an interpretation of some of the voices of AI/AN people as requested by Secretary Vilsack. It provides the Secretary with information about how USDA and the Forest Service are protecting AI/AN sacred sites on National Forest System (NFS) lands and how USDA and the Forest Service might improve the manner in which sacred sites are protected. This report does not, by itself, change policy or have any effects, significant or otherwise, on the human or natural environment and does not constitute final agency action. In developing this report, the Government neither required nor requested that Tribes provide specific information about the nature and location of their sacred sites, nor were AI/AN people asked to reveal the beliefs and practices associated with these sites. How was this Final Report compiled? Initially, in 2010 through July 2011, more than 50 meetings (listening sessions) were held across the Nation in Indian Country and Alaska Native villages. These listening sessions reached out to Native communities by engaging not only Tribal leadership but also culture-keepers, traditional practitioners, and unaffiliated Native descendants. The team conducting this review surveyed Forest Service employees to learn about what they think and what they have observed regarding the effectiveness of the USDA AND FOREST SERVICE: SACRED SITES POLICY REVIEW AND RECOMMENDATIONS Page 1 December 2012 agency’s efforts to manage land that includes sacred sites. A comprehensive review of current laws, rules, regulations, and policies pertaining to AI/AN sacred sites was also conducted. The team developed a Draft Report to the Secretary (“Draft Report”) that included a suite of recommendations for consideration by the Secretary. In the second phase of inquiry, July through November 2011, the Draft Report was distributed to all Federally Recognized Indian Tribes and Alaska Native Corporations (ANCs). AI/AN Tribal governments and ANCs were invited to comment, consult, and otherwise engage in continuing dialogue on the Draft Report. Specifically, the team requested a review of the effectiveness of recommendations made in the Draft Report. Local Forest Service officials and team members held 49 meetings reaching 125 Tribes and ANCs and received additional correspondence from 22 Tribes and inter-Tribal organizations. Additionally, notice of the Draft Report’s availability was published in the Federal Register for public notice and comment. Twenty-two (22) comments on the content of the Draft Report were received from groups and individuals in response to the Federal Register notice. Another
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