By: Savannah Baker
Control over Indian land and resources implicates the jurisdictional claim of the federal government.[i] Currently, this is evident by the Tap Pilam Coahuiltecan Nation filing a lawsuit in federal court against the City of San Antonio, the Texas General Land Office, and two other parties, claiming the recent renovation of the famous Alamo is not adequately protecting the sacred cemetery remains located on the historic property.[ii] According to the Texas tribe, they have been denied the right to ensure the respectful treatment of ancestral remains buried below the site, and defendants have failed to acknowledge the cemetery and follow required protocols for dealing with Native American remains.[iii] Unfortunately, the Texas tribe is not alone in its struggle for cultural preservation; tribes across the nation have dealt with similar issues since “the US legal system has become antagonistic to Indian interests, including those involving sacred sites.”[iv]
Today, Indian nations are having to navigate dichotomous treatment from different branches of the federal government.[v] While Congress has strived to promote and encourage self-sufficiency amongst Native American tribes, the Supreme Court has undercut many legal opportunities for tribal advancement.[vi] This dichotomy poses the question: How can Native Americans ensure cultural preservation when litigation has rarely helped tribes achieve their legal goals?
One answer to this question is environmental agencies. Over the past decade, Congress and the Environmental Protection Agency (EPA) have worked to promote and strengthen tribal role in environmental regulation of Indian territories.[vii] In 2014, the EPA completed its Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples.[viii] The policy is composed of seventeen principles that affirm the EPA’s commitment to “provide to federally recognized tribes and indigenous peoples in all areas of the United States…fair treatment and meaningful involvement in EPA decisions that might affect their health or environment.”[ix] This policy also recognizes that “unique situations and relationships may exist in regards to sacred sites” and acknowledges Executive Order 13007.[x]
Executive Order 13007 was signed by President Clinton on May 24, 1996.[xi] Among other things, the order specifically requires federal land managing agencies “to avoid adversely affecting the physical integrity of sacred sites.”[xii] Agencies are also instructed to provide reasonable notice of proposed actions or policies that could restrict access to or adversely impact sacred sites.[xiii] This is highly relevant in the Texas case as one of the alleged complaints was that the tribe was recently denied access to and ceremonial use of the church located within the Alamo.[xiv]
Another federal agency that works to promote the preservation of Native American culture is the Advisory Council on Historic Preservation (ACHP).[xv] Native American initiatives brought to the ACHP are overseen by the Office of Native American Affairs (ONAA).[xvi] One of the ONAA’s primary responsibilities is to provide assistance and outreach regarding tribal consultation in the Section 106 process.[xvii] Under Section 106 of the National Historic Preservation Act, agencies are required to facilitate meetings with consulting parties, including Indian tribes, to discuss identification of and effects to historic properties.[xviii] The goal is to avoid or mitigate any adverse impacts on said properties.[xix]
Section 106 is often integrated with the National Environmental Protection Act (NEPA), which requires agencies to assess whether their actions will affect the human environment prior to making decisions.[xx] By providing an environmental impact statement, agencies offer opportunities for “public review and comment.”[xxi] This allows agencies to evaluate the social, economic, and environmental effects of their proposed actions.[xxii] The integration of these two acts is logical since historical properties of concern in Section 106, such as properties like Native American sacred sites, are also human environments considered in NEPA.[xxiii]
Section 106 also has a strong relation to Executive Order 13007.[xxiv] While a federal agency is not required to follow 13007 in the Section 106 process, a Federal agency should consider the order with regards to access to and ceremonial use of a historical property that an Indian tribe considers a sacred site, even if the historical property does not meet the criteria for a sacred site under the National Registrar.[xxv] The agency should also seek to avoid adverse physical effects to the sacred site in accordance with the order.[xxvi]
Only time will tell what role, if any, federal agencies will play in the Tap Pilam Coahuiltecan Nation’s lawsuit. But one thing is for sure: the tribe is willing to fight for their place in history. As Ramon Vasquez, a spokesman for the tribe, said, “We feel this is a once in a lifetime opportunity for San Antonio to share the entire story of the Alamo.”[xxvii]
[i] Judith Royster, Environmental Protection and Native American Rights: Controlling Land Use Through Environmental Regulation, 1 Kan. J. L. & Pub. Pol'y 89 (1991) [https://perma.cc/N9P6-N2EH].
[ii] Sophia Morris, Texas Tribe Sues To Protect Alamo Native American Remains, Law360 (Sept. 10, 2019, 8:10 PM), https://www.law360.com/articles/1197256/texas-tribe-sues-to-protect-alamo-native-american-remains [https://perma.cc/8M7N-E3YN].
[iii] Id.
[iv] National Sacred Sites Day Raises Justice Issues, Native Am. Rts. Fund (July 15, 2009), https://www.narf.org/national-sacred-sites-day-raises-justice-issues/ [https://perma.cc/FV24-75HN].
[v] Royster, supra note 1.
[vi] Id.
[vii] Id.
[viii] Environmental Justice for Tribes and Indigenous Peoples, Envt’l Protection Agency, https://www.epa.gov/environmentaljustice/environmental-justice-tribes-and-indigenous-peoples [https://perma.cc/KB3S-498U].
[ix] Envt’l Protection Agency, EPA Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples (2014), https://www.epa.gov/sites/production/files/2017-10/documents/ej-indigenous-policy.pdf [https://perma.cc/5TTV-NVUK].
[x] Id.
[xi] Exec. Order No. 13007, 61 F.R. 26771 (1996) [https://perma.cc/94J6-H2Q8].
[xii] The Relationship Between Executive Order 13007 Regarding Indian Sacred Sites and Section 106, Advisory Council on Historic Preservation (Apr. 24, 2018), https://www.achp.gov/digital-library-section-106-landing/relationship-between-executive-order-13007-regarding-indian [https://perma.cc/46BA-DG2B].
[xiii] Id.
[xiv] Morris, supra note 2.
[xv] Indian Tribes & Native Hawaiians Overview, Advisory Council on Historic Preservation, https://www.achp.gov/indian-tribes-and-native-hawaiians [https://perma.cc/R6A9-7QWJ].
[xvi] Id.
[xvii] Id.
[xviii] Integrating NEPA and Section 106, Advisory Council on Historic Preservation, https://www.achp.gov/integrating_nepa_106 [https://perma.cc/6C8P-KRDA].
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id.
[xxiv] The Relationship Between Executive Order 13007 Regarding Indian Sacred Sites and Section 106, supra note 12.
[xxv] Id.
[xxvi] Id.
[xxvii] John MacCormack, Native American Group Plans to Sue San Antonio and Texas Over Cemetery Issue at Alamo, San Antonio Express-News (Sept. 11, 2019), https://www.mysanantonio.com/news/local/article/Native-American-group-suing-San-Antonio-and-Texas-14424977.php. [https://perma.cc/M467-YR9P].