Friends of America's Past

The Earliest Americans | Challenges to Preserving the Past

Prehistory's future - will politics bury science?

Proposed state and federal legislation concerning public and private land would limit the number of policy decision makers to a select few and exclude public review and appeal.

The spectrum of natural sciences may be affected if access to an area is prohibited. For example, modern archaeological research encompasses a variety of scientific fields from geology and climatology to paleo-botany, -zoology, and -entymology.

We thank Alan Schneider, Attorney for the following analysis of this legislation.

Proposed California Cultural Sites Law

A bill is currently pending in the California legislature that would create new, possibly insurmountable, barriers to the excavation of archaeological sites in that state. Senate Bill No. 18 would create a new classification called a "Traditional Tribal Cultural Site" (or "TTCS"). If an archaeological site located on public land qualifies for treatment as a TTCS, it could not be disturbed without tribal consent or unless very limited, exceptional circumstances exist.

Decisions to list sites as a TTCS will be made by the Native American Heritage Commission whose members are predominantly representatives of tribal organizations. The public could be excluded from Commission proceedings, and information used in reaching decisions would be exempt from public disclosure.

Under some circumstances, the requirements of the Bill would also apply to archaeological sites located on private land. Limitations are also imposed on the excavation and study of Native American human remains found on private land.

Some of the salient features of the Bill include the following:

• A TTCS is defined as "a site that is traditionally associated with, or has served as the site for engaging in activities related to, the traditional beliefs, cultural practices, or ceremonies of a Native American tribe." Bill, Section 13 pertaining to Public Resources Code 5097.10 (m). This definition is broad enough to encompass almost all prehistoric archaeological sites since most sites are locations where a "cultural practice" occurred.

• Six of the nine members of the Native American Heritage Commission must be "elders, traditional people, or spiritual leaders of California Native American tribes." Bill, Section 15 pertaining to Public Resources Code 5097.92 (a)(1).

• The Commission can appoint regional committees of three members, two of which must be tribal members of the Commission. The decisions of such regional committees will be final unless appealed to the full Commission. Bill, Section 15 pertaining to Public Resources Code 5097.92 (c)(1).

• The Commission will maintain a Register of sites that qualify as a TTCS. Bill, Section 17 pertaining to Public Resources Code 5097.96 (a). The list of sites on the TTCS Register and all documents pertaining to the list is exempt from disclosure as a public record. Bill, Section 17 pertaining to Public Resources Code 5097.96 (e).

• Hearings by the Commission on nominations of sites for listing on the TTCS Register can be closed to the public. Bill, Section 17 pertaining to Public Resources Code 5097.96 (c)(4). Notice of hearings of nominations must be given only to Native American tribes and owners of property located within the site’s boundaries. Bill, Section 17 pertaining to Public Resources Code 5097.96 (c)(2).

• Decisions of the Commission may be appealed only by a Native American tribe that nominated a site to the TTCS Register, owners of property within the site’s boundaries or "other consulting parties". Bill, Section 21 pertaining to Public Resources Code 5097.96.4 (a).

• Public agencies can approve or carry out projects that would result in a substantial adverse change in a TTCS if "there is an overriding environmental, public health, or public safety reason." Bill, Section 29 pertaining to Public Resources Code 21097 (j).

• The term "substantial adverse change" means any direct or reasonably foreseeable indirect change to "the physical characteristics of a TTCS" that would diminish the site’s "traditional cultural significance." Bill, Section 13 pertaining to Public Resources Code 5097.10 (l).

• Native American human remains found on private land must be reintered "in a location not subject to further subsurface disturbance" if the Commission cannot identify a descendant of the remains, or the descendant does not make a recommendation for treating or disposing of the remains, or the landowner rejects the recommendation of the descendant. Bill, Section 24 pertaining to Public Resources Code 5097.98 (b).

• The Commission will determine which persons are "most likely descended from the deceased Native American" whose remains are found on private land. Bill, Section 24, pertaining to Public Resources Code 5097.98 (a).

In 2002, the California legislature passed a bill that would have prohibited government projects that might "damage" a Native American "sacred place." That bill was vetoed by then Governor Gray Davis. Senate Bill 18 is broader than the 2002 bill in terms of the types of sites covered and it has fewer procedural safeguards to protect against abuse.

Link to California SB18

Similar Federal Sacred Lands Legislation is Pending

Efforts also continue to pass federal legislation to grant special status to sites on federal land that are claimed to be sacred. A bill has been introduced into the House (H.R. 2419 – Native American Sacred Lands Act) to prohibit activities that would adversely affect sites which are considered sacred because of their "traditional cultural or religious significance or ceremonial use" or because of a "ceremonial or cultural requirement."

This bill has a number of alarming features.

• "Native science" (i.e., oral traditions) must be given "no less weight than any other evidence" in proceedings to have federal land declared sacred. If interpreted liberally, this requirement would mean that even obviously unreliable oral accounts would be entitled to the same weight as the strongest scientific data.

• Persons (such as scientists) who are impacted by a decision declaring a site sacred but were not parties to the agency's proceedings would not have standing to contest the decision.

• Information relating to agency hearings under the Act would be exempt from disclosure under the Freedom of Information Act if such information refers to a "specific detail" of a traditional cultural practice or religion, or to the significance or location of the sacred site. As a result, outside parties will never be able to determine the factual basis, if any, for decisions under the Act.

H.R. 2419 has been referred to the House Committee on Resources. Whether the bill has any prospects of being voted out of committee is unknown. However, it is not the first attempt to secure legislation of this kind at the federal level. A similar bill was proposed in the preceding Congress.

Link to HR 2419 Native American Sacred Lands Act introduced June 11, 2003 and referred to the Committee on Resources

Sponsors: Mr. Rahall (for himself, Mr. Larsen of Washington, Mr. Kildee, Mr. Pallone, Mr. George Miller of California, Mr. Filner, Ms. Lee, Mr. Frost, Mr. Acevedo-Vila, Mr. McNulty, Mr. Holt, Ms. McCollum, Mr. Udall of New Mexico, Mr. Honda, Mr. Carson of Oklahoma, Mr. Case, and Mr. Grijalva)

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