Form H-8120-1 - Guidlines For Conductiong Tribal Consultation - Bureau Of Land Managment Page 11
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45II - 5
H-8120-1 - GUIDELINES FOR CONDUCTING TRIBAL CONSULTATION – (Public)
A site "having religious or cultural importance" is probably at least as likely to occur
in the absence of archaeological resources as in their presence. If the Federal land
manager were to notify tribes only with respect to archaeological resources, a location's
religious or cultural importance could go unheeded, and inadvertent harm or destruction
could occur.
"Having religious or cultural importance" is an American Indian Religious Freedom
Act (AIRFA) concept, not an archaeological resource one. The phrase came into the
1979 ARPA bill after a hearing where testimony was given by advocates for Indian
religious freedom and traditional religious practitioners, shortly after the American Indian
Religious Freedom Act of 1978 became law. The language in Section 10(a) of ARPA,
requiring the rule makers to consider AIRFA when drafting uniform implementing
regulations, was included in the ARPA bill at the same time. It reads, "Such rules and
regulations may be promulgated only after consideration of the provisions of the American
Indian Religious Freedom Act (92 Stat.469; 42 U.S.C. 1996)." The purpose of AIRFA is to
ensure access to religious sites and freedom to worship through ceremonials and traditional
rites, unhindered by Federal infringement, restriction, or intrusion. (See III.C.)
Therefore, when implementing Section 4(c), the focus of notification and consultation
should not be just the archaeological resources that are the subject of a permit
application. Rather, we should be considering the location, nature, scale, and timing of
permitted activities that would occur under the permit – e.g., presence of work crews;
surface disturbance – relative to places on the landscape that members of an Indian tribe are
known, through consultation, to regard as important for their traditional cultural and
religious observances.
Would permitted activities in the area, at the time proposed, hinder or intrude on
legally (AIRFA) protected religious use? If the Federal land manager is confident, based
on previous consultation, that permitted activities would not hinder such use, there would
be no reason to notify an Indian tribe before processing an ARPA permit application.
Would permitted activities in a specific place, including an archaeological site, raise
cultural concerns? For example, a ruin that an applicant has selected for excavation might
be recognized in cultural tradition as a venerable ancestral home; or an archaeological site
might contain features that are always considered important for cultural or religious
reasons. Those kinds of concerns should influence the BLM decision about issuing a permit
for excavating and/or removing archaeological resources.
Also, a tribe might have concerns about the potential for disturbing human remains
and funerary objects. This would be subject to consultation under NAGPRA (see II.C.).
BLM Manual
Rel. 8-75
Supersedes Rel. 8-65
12/03/04
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