Updated: Aug 26, 2021
Recently, I was asked why so many Native American sacred sites are not protected. That's a complicated matter. But the simple answer is this: On public land, it takes an act of Congress to establish solid legal protections for sacred lands, or the President can set aside National Monuments via the Antiquities Act. On private land, protecting Native American sacred sites is often left up to the landowner. There is more to it than that, so let's dig in.
On federal land, if a developer submits an application to a federal agency to develop a mine, pipeline, wind facility, oil/gas drilling operation, or some other such project, then that typically triggers the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) Sections 106 and 110. During these processes, Tribes can work to protect sacred lands with the federal agency, the developer, or both. But often times, little is actually done during the NEPA and NHPA process to protect sacred sites. So what's the alternative?
There are many alternatives, but for this article I focus on the following options, if applicable:
Nominate site to the National Register of Historic Places (e.g. TCP)
Nominate site as a National Historic Landmark, if applicable
Submit proposal for an Area of Critical Environmental Concern pursuant to the Federal Land Policy and Management Act (FLPMA)
Identify a site as an Indian Sacred Site (Executive Order 13007)
Evaluate options provided in relevant Cultural Resource Management Plans.
Request federal agency to amend their land management plan (RMP) to remove specific sacred lands from being available for oil/gas drilling, mining, infrastructure projects, and other surface occupancy categories.
Again, these are just a few options. None of them actually provide strict legal protection of a site. The reason being: they address land management plans and decisions. And those are often subject to change. But assuming an act of Congress or direct action from the President is unlikely, then these above options are solid starting points.