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

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In November 2021, 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) have entered into a voluntary Memorandum of Understanding (MOU) to “enhance protection of and access to Indigenous sacred sites through strengthened and improved interdepartmental coordination, collaboration and action”.

The MOU provides, as context, that Indian tribes, the Native Hawaiian community, and Indigenous peoples have creation stories that emphasize connection to place through practice and development. a spiritual existence. The desecration of these sacred places and the displacement of many of these community members from their ancestral lands has had lasting negative impacts on their social, cultural, spiritual and physical well-being. The MOU defines a “sacred site” as follows:

Any specific, discrete, and tightly bounded location on Federal lands that is identified by an Indian tribe or Native Hawaiian organization, or a Native Indian or Hawaiian individual determined to be a duly authorized representative of a Native Indian or Hawaiian religion, as sacred by virtue of its established religious meaning or ceremonial use by an Indian or Native Hawaiian religion; provided that the Native Hawaiian tribe or religion has notified the agency of such site.

As federal agencies responsible for certain land management activities, including on reservations and other culturally significant sites, participating agencies committed to “a forward thinking approach”, under which they would seek not only to avoid harmful actions, but also to “cooperate with Indian tribes and Native Hawaiian organizations to ensure good stewardship of their lands and permit their lawful access to and use of certain public lands through agency agreements tribal and co-management, to the extent possible.

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:

  • Develop mechanisms to share subject matter expertise among agencies;
  • Establish a subgroup of lawyers to facilitate inter-agency coordination on legal matters;
  • Prepare reports to the White House Council on Native American Affairs on the implementation of the Memorandum of Understanding;
  • Develop and improve best practices, procedures and guidance for the management, treatment and protection of sacred sites;
  • Identify obstacles to the protection of sacred sites at the federal level;
  • Develop and enhance public awareness focused on the importance of maintaining the integrity of sacred sites and the need for public stewardship;
  • Develop and improve best practices for working with Indian tribes and Native Hawaiian organizations on the management of sacred sites;
  • Develop and improve best practices for maintaining the confidentiality of sensitive information at sacred sites; and
  • Develop and improve best practices for building the organizational capacity of Hawaiian tribes and Natives to meaningfully engage in consultation with participating agencies.

The MOU also includes certain limitations, including that no additional funding will initially be provided to implement the MOU (but budget requests may be made to support MOU activities), and that it is a voluntary agreement and not legally binding.

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