United States: Indian Law Can Be Implicated Even For Projects On Non-Tribal Land

Recent tribal challenges to development projects have highlighted the need for developers to be vigilant about the role that Indian law can play in their projects. In Arizona, six tribes representing twenty-two Indian Nations have banded together to challenge federally approved snowmaking activities at a ski resort on the highest of the San Francisco Peaks, while in the Dakotas, members of the United Sioux Tribes of South Dakota have objected to the location and development of the TransCanada Keystone Oil Pipeline because it will cross over corridors once used by their ancestors.

Notably, neither the Snowbowl Ski Resort nor the path of the TransCanada pipeline are on tribal lands. Yet the tribes have found footing to challenge these projects because of the religious and/or cultural significance afforded to the respective lands by the tribes that, the tribes argue, must be respected under the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq ("RFRA") and the National Historic Preservation Act of 1966, as amended through 1992, 14 U.S.C. §§ 470 et seq ("NHPA"). For the time being, at least one court agrees.

The Law

The RFRA and Section 106 of the NHPA require consultation with Native American Tribes whenever projects for which federal approval is required may have an effect on archaeological and/or traditional cultural properties of historical or religious value to tribes. The RFRA prohibits the federal government from imposing a "substantial burden" on a person's exercise of religion, even if its acts are not specifically directed at the person or a religious group, unless the is furthering a "compelling interest" in the most practical way possible that has the least impact on the person's exercise of religion. 42 U.S.C. § 2000bb-1. NHPA Section 106 requires federal agencies to consider the effects of projects on archaeological sites, historical sites and locations that are significant because of the role the property plays in a community's historically rooted beliefs, customs and practices.

The Projects

The Snowbowl Ski Resort, Arizona

The Snowbowl Ski Resort is a private resort located on land leased from the United States Forest Service. It has been in operation since the 1930s. Faced with hard times because of dwindling snowfall, in 1997 the owners of the Snowbowl proposed to expand the resort by making snow using treated effluent. In March 2005, following environmental studies and a public comment period in which various tribes participated, the U.S. Forest Service issued its final environmental impact statement approving Snowbowl's plan. Six tribes, including the Navajo and Hopi, sued to stop the expansion.

The tribes contend that the entire San Francisco Peaks landscape is a pure, sacred, indivisible living entity and that the Peaks are central to tribal origination myths, provide herbs used in tribal religious ceremonies and are home to a number of tribal deities. They argue that if the Snowbowl plan is allowed to proceed the entire mountain will become infected, both by osmosis and by runoff from the melting effluent into the otherwise pure natural aquifer on the Peaks. Therefore, the tribes argue, even though the Snowbowl is not a geographical part of any tribal lands and comprises only 1% of the San Francisco Peaks, under the RFRA, the tribes' exercise of religion will be substantially burdened if any part of the Peaks is sullied with effluent impurities.

In January 2006, in Navajo Nation v. United States Forest Service, 408 F. Supp. 2d 866 (D. Ariz. 2006), the United States District Court for the District of Arizona considered the tribes' RFRA argument (and an NHPA argument, which it summarily dismissed), and ruled in favor of the Snowbowl. On appeal, a three-member panel of the Ninth Circuit sided with the tribes, holding that the Forest Service's approval of the Snowbowl's plan to make snow from effluent would contaminate the Peaks and undermine the tribes' spiritual connection to the Peaks and their rituals, in violation of the RFRA. Navajo Nation v. United States Forest Service, 479 F.3d 1024 (9th Cir. Ariz. 2007).

Faced with an outcome that challenged the federal government's ability to manage its own land and which gave the tribes dominion over non-tribal land, the Forest Service appealed for an en banc hearing with the entire Ninth Circuit. That request was granted in October 2007, and arguments were held in December 2007. A ruling is expected shortly.

The TransCanada Keystone Pipeline, South Dakota

Days after the Department of State issued its final environmental impact statement approving the Keystone pipeline, two years since representatives of TransCanada first began meeting with tribal parties, and nearly three years after the project was first made public, members of the United Sioux Tribes of South Dakota again are raising concerns about the possible cultural and environmental impacts of the Keystone pipeline.

The Keystone pipeline is a proposed 1800+ mile pipeline intended to carry crude oil from Alberta, Canada to Oklahoma and Illinois. Its route takes it across federal and private lands in Canada and the United States. Though the pipeline will not run through any tribal land, the United Sioux Tribes are concerned that it could be located on an ancient travel pathway purportedly used by their ancestors. The tribes contend that in light of this ancient travelway's cultural significance to them, the federal actions thus far taken pursuant to the NHPA have been grossly inadequate and are demanding that the agency complete an NHPA Class III cultural pedestrian survey from the Canadian origination point of the pipeline to its ultimate termination points in Oklahoma and Illinois.

The United Sioux Tribes of South Dakota has not yet announced whether it will sue to stop the pipeline, on the grounds that the government allegedly violated the NHPA by not conducting proper cultural surveys of non-tribal land. The tribe has suggested that its decision may be forthcoming by March 2008, just one month before the pipeline's scheduled start of construction.

Conclusion

At least two lessons can be learned from the Snowbowl and TransCanada projects. First, developers can no longer assume that tribal influence is restricted to the boundaries of the tribally-owned land. Rather, they should be prepared to consult with Indian tribes not only as owners of tribal lands, but also as neighbors. Second, developers are well advised to become familiar with the cultural and religious significance of land impacted by their projects and to make Indian cultural and religious issues part of their project due diligence.

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