Federal Agencies Sign Memorandum of Understanding for the Protection of Indigenous Sacred Sites

Troutman Pepper

Troutman Pepper

In November 2021, the secretaries of the U.S. Department of the Interior, Department of Agriculture, Department of Transportation, Department of Energy, Environmental Protection Agency, White House Council on Environmental Quality, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority (the participating agencies) entered into a voluntary Memorandum of Understanding (MOU) to “improve the protection of, and access to, Indigenous sacred sites through enhanced and improved interdepartmental coordination, collaboration, and action.”

The MOU provides by way of background, that Indian Tribes, the Native Hawaiian Community, and Indigenous peoples have creation narratives that emphasize the connection to a place as part of a spiritual practice and existence. Desecration of these sacred places and the relocation of many of these community members from their ancestral homelands has had enduring negative impacts on their social, cultural, spiritual, and physical wellbeing. The MOU defines a “sacred site” as:

Any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian Tribe or Native Hawaiian organization, or Indian or Native Hawaiian individual determined to be an appropriately authoritative representative of an Indian or Native Hawaiian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian or Native Hawaiian religion; provided that the Tribe or Native Hawaiian religion has informed the agency of the existence of such a site.

As the federal agencies responsible for certain land management activities, including on reservations and other culturally significant sites, the participating agencies committed to “a forward-thinking approach,” pursuant to which they would not only seek to avoid adverse actions, but “collaborate with Indian Tribes and Native Hawaiian organizations to ensure good stewardship of their lands and allow their rightful access and use to certain public lands through Tribal-agency and co-management agreements, where possible.”

The participating agencies also committed to establish a working group to consult with Indian Tribes and Native Hawaiian organizations to implement the provisions of the MOU, including by:

  • Developing mechanisms to share subject matter expertise among agencies;
  • Establishing a subgroup of attorneys to facilitate interagency coordination on legal issues;
  • Preparing reports to the White House Council on Native American Affairs on MOU implementation;
  • Developing and enhancing best practices, procedures, and guidance for the management, treatment, and protection of sacred sites;
  • Identifying impediments to federal-level protection of sacred sites;
  • Developing and enhancing public outreach focused on the importance of maintaining the integrity of sacred sites and the need for public stewardship;
  • Developing and enhancing best practices for collaborating with Indian Tribes and Native Hawaiian organizations on the stewardship of sacred sites;
  • Developing and enhancing best practices for maintaining the confidentiality of sensitive information about sacred sites; and
  • Developing and enhancing best practices for building Tribal and Native Hawaiian organizational capacity to meaningfully engage in consultation with the participating agencies.

The MOU also includes certain limitations, including that no additional funding will be initially provided to implement the MOU (but that budgetary requests may be made to support MOU activities), and that it is a voluntary, non-legally binding agreement.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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