Tribal Cultural Property

Ninth Circuit Fails To Protect Tribal Sacred Sites

The Ninth Circuit Court of Appeals recently sustained the long-standing federal policy of subordinating Tribal sacred sites and culture to economic pursuits. The Te-Moak Tribe of Western Shoshone Indians of Nevada v. U.S. Department of the Interior decision highlights the general lack of enforceable protections codified in federal and state laws for Tribal cultural resources, and the inadequacy of President Clinton’s Executive Order 13007 in actually accomplishing what President Clinton ordered–that is, to “protect and preserve Indian religious practices.”

In the case, the Te-Moak Tribe among other Tribes and interested parties appealed the BLM’s approval of a plan to expand gold mining in and around traditional Native sacred sites where religious ceremonies are still held to this day.


The thrust of the Ninth Circuit’s recent holding is that E.O. 13007 “requires only that sacred sites be accommodated ‘to the extent practicable.’  [BLM] determined that further accommodation was not practicable given the lack of specificity as to location and as to the number of Tribal members who use any particular site on the pediment for religious activities.”

Finding no “arbitrary or capricious agency action,” the Ninth Circuit upheld the district court’s summary judgment against the Tribes and other appellants, paving the way for more mining and the destruction of Native American sacred sites.

The sole dissenter hit the nail on the head regarding the majority’s flawed and anti-Tribal reasoning that:

the analysis failed to recognize that comments regarding the proposal did point to the area where the mine is being built as an area in which worship occurs; it demanded quantification of that use as a condition of Executive Order coverage, when no such quantification is necessary; and it required greater specificity of location than comports with Shoshone religious practices. As to the last point, to require greater specificity would interfere with Shoshone religious practices, as those practices appear to regard certain recognized natural areas, rather than specific set locations, as places for worship.

In essence, without teeth (i.e. actual enforcement mechanisms and concrete directives to federal and state governmental agencies), all federal laws and executive orders purporting to “protect and preserve Indian religious practices” and cultural resources have no real authority to effect positive change and truly protect Tribes and their threatened cultures.   As such, Tribes must take a by-any-means-necessary approach to fending off government or private attacks upon Indian religious practices and ways of life.

The entire Ninth Circuit decision in Te-Moak may be found here.  E.O. 13007 may be found here.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and  

Northwest Tribal Lawyers Litigate To Protect Indian Chief's Grave

As featured on Turtle Talk, Galanda Broadman recently defeated summary judgment in a San Juan Superior Court case in which we are representing tribal member plaintiffs who directly descend from a Lummi/Clallam Chief. The Chief's grave and headstone sits on waterfront fee land on San Juan Island in Washington State, where that ancestor has lied in rest since the year 1900. In December 2012, the tribal plaintiffs allege that the Chief's headstone was disturbed, in violation of the state Indian Graves and Records Act and a covenant running with the land.

The case asks the question: who holds what sticks in the bundle of property rights, regarding an American Indian ancestors grave?

Galanda Broadman, an Indian Country Law Firm, is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with offices in Seattle, Washington and Bend, Oregon, represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.

Pechanga Has Legal Rights to Protect and Preserve Sacred Mountain Peak

Sacred places are the foundation of all other beliefs and practices because they represent the presence of the sacred in our lives. They properly inform us that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires ... There probably is not sufficient time for the non-Indian population to understand the meaning of sacred lands . . . We can but hope that . . . protection be afforded these sacred places before the world becomes wholly secular and is destroyed. - Vine Deloria Jr., God is Red

According to the Los Angeles Times and related headlines, a construction company challenges the Pechanga Band of Luiseno Indian's testimony that the proposed site for a massive rock quarry would destroy Pechanga cultural properties, specifically a mountain peak where the Tribe's creation story arose.

Federal law recognizes the Tribe's right to protect and preserve that sacred mountain peak, even though it sits on private lands off of the Pechanga Reservation. Tribes can arguably regulate ''off-reservation activities that have significant effects within the reservation,'' which would include the disturbance or destruction of sacred sites on private lands (Wisconsin v. EPA). Tribes also retain usufructuary rights - i.e., rights to enjoy properties that belong to somebody else - in their off-reservation cultural properties (Minnesota v. Mille Lac Band of Chippewa Indians). Among those rights, tribes have reserved access rights to their cultural properties on non-tribal lands, particularly within historic fishing, hunting and gathering grounds (U.S. v. Washington).

Hopefully these tribal rights, recognized at federal common law, will be also be honored by the Riverside County Planning Commission before the world, or at least Riverside County and the Inland Empire, becomes wholly secular and is destroyed.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via

Oak Harbor's Not So Inadvertent Discovery

Ignoring SHPO's warning of Indian remains does not an inadvertent discovery make. Oak Harbor claims that its disturbance of Coast Salish ancestral remains was "not intentional." In other words, the city claims they inadvertently unearthed the Ancestors.

RCW 27.44.050 subjects Oak Harbor and its contractors to civil liability. That is because the city knew or should have known tribal ancestral remains would be uncovered through excavation, especially due to SHPO's warning. Having ignored that warning, Oak Harbor's acts were neither accidental nor inadvertent per RCW 27.44.050.

Oak Harbor and its contractors can now be subject to class action litigation for a potentially staggering amount of imputed and punitive damages under RCW 27.44.050, given Judge Robert Lasnik's decision in Lummi Nation v. Golder. The imputed/actual damages calculus alone could go like this:

Number of defendants X Number of remains X $500 or actual damages, whichever is greater X Thousands of Coast Salish Indians with ancestral ties to the Oak Harbor Ancestors

Hopefully the threat of a class action lawsuit for millions of dollars (nothwithstanding the Supremes' Wal-Mart decision) will cause Oak Harbor to remedy the situation. That said, the harm already inflicted upon Coast Salish People is irreparable.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via

Washington State Bill Seeks to Exempt Local Governments from Indian Grave Protection

House Bill 1713 seeks to categorically exempt city and county development or redevelopment efforts from compliance with the State Environmental Policy Act (SEPA). Among other environmental protections, this bill could allow cities and counties to sidestep protocols intended to protect Indian burial grounds, graves, skeletal remains and relayed cultural patrimony pursuant to the State Indian Graves and Records Act, RCW 27.44. Washington Indian tribes should categorically oppose House Bill 1713. Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via