Sacred Land

8/3/2019 Sacred Land

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CorporateResponsibility

IS NOTHING SACRED?

for the

Protection of

Native American Sacred Sites


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SACRED LAND FILm PROjECT

P.O. Box C-11La Honda, CA 2www.sacredland.org..

Produced by the

Sacred Land Film ProjectPrincipal Author: Lyuba Zarsy

Research and Editing:Christopher McLeod

and Roz Dzelzitis

Cover and Section Opener photos:

Christopher McLeod

About the Sacred Land Film Project

Earth Island Institutes Sacred Land Film Projectproduces a variety o media and educationalmaterials lms, videos, DVDs, articles, pho-tographs, school curricula materials and Website content to deepen public understand-ing o sacred places, indigenous cultures andenvironmental justice. Our mission is to use

journalism, organizing, and activism to rekindle

reverence or land, increase respect or culturaldiversity, stimulate dialogue about connectionsbetween nature and culture, and protect sacredlands and diverse spiritual practices. For the

last decade, led by Project Director Christopher

(Toby) McLeod, we have ocused on the produc-tion and distribution o the documentary lm,

In the Light o Reverence . We are currentlydeveloping a our-part series on sacred placesaround the world Losing Sacred Ground.

Acnowledgements

Tanks to Newmans Own, Inc., GrousbeckFamily Fund and Nathan CummingsFoundation or supporting the research,writing and publication o this report.

Tanks to Winona LaDuke, Vernon Masayesva,Chris Peters, Mark LeBeau, Susan Peacock,Lloyd Kurtz, Lily Donge, Jessica Abbe, VickiEngel, Ashley indall, Michelle Berditschevsky,Edward Wemytewa, Jack rope and CourtneyCoyle, or reviewing and commenting on themany drats o the document.

Tanks to Marjorie Beggs o the San FranciscoStudy Center or editing the drat manuscriptand writing summaries, and to Pat Koren oKajun Design or graphic design and layout,and to Laurie Wigham or map design.

About the Author

Lyuba Zarsyis an internationally recognizedscholar and advocate or global sustainabledevelopment. rained academically as an econo-mist, she is currently Senior Research Fellow

at the Global Development and EnvironmentInstitute at uts University in Boston. She haspublished widely in the areas o internationalinvestment, human rights and the environment,and corporate social responsibility. Her mostrecent books areEnclave Economy: Foreign

Investment and Sustainable Development in

Mexicos Silicon Valley (with Kevin Gallagher)andHuman Rights and the Environment:Conicts and Norms in a Globalizing World.

2 Sacred Land Film Project.

All rights reserved.

You can download a copy o this report rom

www.sacredland.org/PDFs/CSR.pd


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Contents

Foreword by Winona LaDuke 2

Executive Summary 4

SACRED SITES 7

An Introduction 8

Sacred Sites and the Public Interest 9Corporations and Sacred Sites 10

Tools or Protecting Sacred Sites 11

CONFLICTS WITH CORPORATIONS OvER SACRED SITES 17

Introduction to Case Studies 18

Glamis Gold Ltd. and Indian Pass 19

Anschutz Exploration Corp. and Weatherman Draw 26

Calpine and Medicine Lake Highlands 31

Peabody Energy and Black Mesas Navajo Aquier 38Salt River Project and Zuni Salt Lake 45

Access Fund, Cave Rock and Devils Tower 52

TOWARD CORPORATE GOOD PRAC TICE 55

What Motivates Corporations? 56

Corporate Social Responsibility 58

What Is Good Corporate Practice on Sacred Land? 61

Conclusion 65

Bibliography 68

Appendix One: Principles or Environmental Responsibility 69

Appendix Two: Suncor Energys Aboriginal Aairs Policy 70

Appendix Three: Calverts Indigenous Peoples Rights Policy 73

Appendix Four: U.S. Laws Regarding Sacred Sites 74

Endnotes 77


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FOREWORD

Future Positive|Ji misawaabandaamingby Winona LaDuke

orporations are increasingly nding thatethical behavior is also good business

practice, and many are rising to the challengeo making that transition. Shareholders atGoldman Sachs, Calpine and Peabody Energy,along with major employee and pensionunds like Te Caliornia Public EmployeesRetirement System and members o theCoalition o Environmentally ResponsibleEconomies are demanding a higher standardor corporate behavior. Corporations are begin-ning to acknowledge that energy eciencysaves millions o dollars andprotects theenvironment; water eciencies reduce waterbills and create ethical relationships with com-munities; redesigning production systems to

recycle waste generates byproducts that createnew revenue sources. Developing productionsystems that do not destroy the natural wealthupon which we all rely is the key to longevity.

Starbucks rise to world dominance onenew store a day comes at the same time as itpurchases air trade coee and develops aworker benet package that challenges those ocorporations like Wal-Mart. CIGOs socialinvestments strengthen rural and indigenouscommunities, and corporations like BP haveseen the wisdom o shedding their baggage

in this case carbon by moving intorenewable energy, the astest growing sector inthe market. BHP Billiton, the largest miningcorporation in the world, has negotiated withthe Mole Lake band o Ojibwe in Wisconsin orreturn o their traditional territory rather thandigging a zinc and copper mine that wouldhave pollutedMushgigagamongsebe (Te LittleRiver o Medicines) and wild rice growing lakesdownstream that are essential to culturalsurvival.

Te terms o trade and relationship that ledto the rise o the major corporate world powersare no longer intact. Civic society will notaccept poisoning o water, spraying o schools,product malunctions, or corruption in corp-orate management. Nor should civic societytolerate the destruction o sacred places. Tereare no more rontiers to exploit, because withinall rontiers are civic societies perhaps notalways American suburbs, but societies andpeoples with rights, aspirations and deeprelationships to place.

In the Ojibwe language, omaa akiingmeans

C

ChristopherMcLeod

Foreword


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Foreword

making a positive uture, nurturing the healtho uture generations which one would hopeis a goal o our civic society.

Omaa akiing. From the past to the uturethis land has many stories: when the giant laydown to sleep, rom whence the bualo andrst humans came, where the Great ree oPeace stood. Each society, each community,each corporation has a dierent relationship tothe land, and through these arise todays

conficts.A society that consumes a third o the

worlds resources requires more land andmakes bigger handprints each year in succes-sion. Tose handprints have caused a great losso lie human, our-legged, winged, nned,and those with roots. We all must recognizethat the land is the natural wealth that sustainsour society, and its preservation is essential icivic society is to grow and survive.

Federal, state, county and corporate institu-tions all are relatively new on this land, and

these institutions are mostly unamiliar withthe stories o the land as they are rememberedand told by diverse indigenous communities.Tat is not surprising: Virtually none o thesestories, which are acets o North Americanhistory, are taught in high school or collegecourses.

Corporations, governments and nativecommunities may have dierent cultural

origins, yet we all rely on the same air, waterand land or our sustenance. Protecting sitessacred to indigenous peoples oers corporateand government institutions an amazingopportunity to oster a truly multicultural,sustainable society.

What sort o uture omaa akiing, here onthis land, will we make with our hands, ourmachines, our public policies, our minds?

Corporations and governments are part o

civic society, and they need to play a vital andpositive role. Tis report oers a starting placeor undamental change one that can createa healthy, multicultural societyomaa akiing.Te places and peoples on the ollowing pagesare an inspiration. Teir stories will continueto be told, and we welcome new, positivecharacters.

Winona LaDue (Anishinaabeg) lives onthe White Earth Reservation in northernMinnesota and is Program Director o Honor

the Earth and Founding Director o WhiteEarth Land Recovery Project. A graduate oHarvard, her books include:Last StandingWoman (ction),All Our Relations (non-c-tion),In the Sugarbush (childrens non-c-tion), Te Winona LaDuke ReaderandRecovering the Sacred: Te Power o Naming

and Claiming(non-ction). Winona is anadvisor to the Sacred Land Film Project.


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ExecutiveSumma

ry

onficts between Native Americans andU.S. corporations over threats to culturally

signicant places are escalating. NativeAmerican groups have been able to stop ormitigate the destructive eects o somecorporate developments, but each battle is long

and costly, and new threats continue to emerge.o raise the protection o sacred sites to thelevel o a social norm, innovations are needed not only in law but also in corporate prac-tice.

Part I o this report denes sacred sites places that hold signicant spiritual value orNative American tribes, nations and bands and suggests that protecting such sites is in thepublic interest. It is part o our guarantee oreedom o religion; it refects our cultural,historic and ecological values; it can be viewedas a restorative justice measure; and it is a goodt with the spiritual values o non-IndianAmericans, especially those in aith-based andenvironmental groups.

Although our ederal laws acknowledge thereligious and historic signicance o AmericanIndians sacred sites, no laws actually mandateprotection o those sites or Indians access tothem.

Corporations and native groups oten lookat the same landscape and see dierent things.In conficts, they typically sit on opposite sides

with the government serving as arbiter, andonly rarely do they conduct two-way consulta-tions aimed at a win-win resolution both sidescan live with.

Education and shaping societys values arekey in bridging the gap between sacred sitesand property rights.

In the past decade, an emerging corporatesocial responsibility (CSR) movement isdening new values and norms or goodpractice in relation to social and environmentalperormance. Te movement is composed o

investors, NGOs, aith-based groups, unions,business magazines, opinion makers, interna-tional environmental and human rightsorganizations, and companies themselves.

While leading CSR companies have insti-tuted environmental management policies,

ew have adopted codes o conduct on humanrights, and ewer still have policies that protectindigenous rights. Including sacred sitesprotection within a human rights rameworkwould situate advocacy on this issue at thecorporate social responsibility movementscutting edge.

Part II presents case studies o six confictsbetween Native Americans and corporations.In several o the conficts, the willingness oboth sides to engage each other in dialoguegenerated mutually acceptable outcomes. Mosto the cases stretch back decades, and all entailcomplex interactions between the participants.In brie:

b wenty years ago, Glamis Gold beganacquiring mining claims in Indian Pass insoutheastern Caliornia, the desert homelando the Quechan Indian Nation. Glamis open-pit, cyanide heap-leaching process can scar thelandscape and pollute groundwater withcyanide. Clintons Department o the Interior(DOI) secretary denied Glamis mining

proposals, but Bushs secretary rescinded it.Ater a 23 Caliornia law gave sites at IndianPass some protection, Glamis led suit againstthe U.S. government under the provisions oNAFA, asking or $ million in damages.(A hearing is scheduled or March 2.)

b Weatherman Draw in south-centralMontana is a 1,-year-old site sacred tomany tribes or its cli paintings. AnschutzExploration Corp. acquired two leases tomineral rights there in 1. Ater the Bureauo Land Management (BLM) approved an

ExECuTIvE SummARY

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exploratory well, leaders rom 1 tribes plusallied non-Indian groups appealed the decisionand launched an intensive media campaign.Anschutz dropped its plans and donated theleases to the National rust or HistoricPreservation.

b Various tribes have used Medicine LakeHighlands in northeastern Caliornia as asanctuary and place o healing or 1, years.

BLM granted Calpine Corp., the worlds largestsupplier o geothermal energy, 3 leases therestarting in the mid-1s. Between 2 and2, one power plant project was denied, thenrescinded; both sides led suits and appeals;native coalitions dropped opposition to oneproject in exchange or a -year moratorium onother projects; the tribes ound new allies inthe socially responsible investment community.A May 2 lawsuit brought by the Pit Riverribe and others against Calpine and theederal government is pending. Meanwhile,Calpine has led or bankruptcy.

b Beneath the surace o Black Mesa innortheastern Arizona, home to 2, Navajosand 1, Hopis, are billion o tons o coal anda huge underground lake. In a deal brokered byDOI 3 years ago, the two tribes agreed to leasecoal and water to Peabody Energy, the worldslargest private-sector coal company. By 21,Peabody had pumped billion gallons owater rom the aquier to slurry the coal.Surace water is disappearing and the tribestraditional liestyle is threatened with extinc-

tion. In a hard-won consensus, the two tribes,ormerly at odds with each other, demandedthat Peabody shut down the Black Mesa coalslurry line by the end o 2, and when theMohave power plant was shut down or airquality violations, the slurry ceased operation.

b For the 1, years that the Zunis havelived near Salt Lake in northwestern NewMexico, they and other tribes have collectedlake salt or religious ceremonies and used thearea surrounding the lake as a sacred, neutralsanctuary zone. In 1, the Zuni regained

control o the lake and some surrounding landrom the ederal government, which, alongwith the state o New Mexico and privateowners, still controls percent o the sanctu-ary area. Te Salt River Project (SRP), thenations third largest utility, got a permit tobuild Fence Lake Coal Mine 11 miles romZuni Salt Lake. For 2 years, the Zunis builtcoalitions and challenged SRP legally to stopproposed groundwater pumping that threat-

ened to dry up the lake. SRP dropped its mineplans in 23, but two months later, BLMannounced an auction o exploration rights orgas and oil on other land near Salt Lake.

b Cave Rock, an ancient volcanic remnanton Forest Service land on Lake ahoes easternshore in Nevada, is sacred to the Washoepeople, who have lived in the area more than1, years. Tey want to ban sport climbingat the rock, which attracts climbers rom allover the world. Unsuccessul voluntary banson commercial climbing were ollowed bylawsuits led on behal o climbers by theAccess Fund, a nonprot climbers group. In23, the Forest Service issued a decisionbanning rock climbing as well as o-roadmotorized vehicle use at Cave Rock.Opponents appealed, lost, then led aederal lawsuit, which the Federal DistrictCourt dismissed. Te case currently is onappeal. A similar confict on National ParkService land at Devils ower in Wyoming hasled percent o climbers to rerain romclimbing the sacred monolith during annual

Indian ceremonies each June.

Part III uses the lessons learned in the casestudies to dene what corporate good practicemight look like with regard to protectingsacred sites. At one time or another, the casesshared common threads, regardless o theiroutcome: unity among native groups; activepartnerships between Indian and non-Indianallies; counterproductive laws; tribal ground-ing in spirituality; perseverance and vigilance;regulatory oversight o the area; strong


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dependence on legal processes; legislativeadvocacy; economic sticking points; insistencethat tribes had no right to say no; and lack oearly consultation.Tis last element is where the most change ispossible regarding good practice. At the hearto air dealing is ree, prior and inormedconsent by indigenous communities to devel-opment on or near sacred places. Consultationis most productive when the involved parties

adopt these goals:

b Inorm Native Americans about proposedplans or a corporate project and consultwith both tribal government and traditionalpeople as early as possible in the projectplanning process.

b Build ongoing relationships betweencorporations and traditional culturalleaders and tribal ocials that transcendan individual project.

b Inorm tribal peoples about the corporationand its goals, objectives, values and ways odecision-making.

b Ensure that sensitive, condential inorma-tion is treated with respect and not madepublic.

b Educate corporations about why and howsacred places are important to NativeAmericans and why it is in the publicinterest to protect such places.

b Stimulate ongoing dialogue between theinvolved indigenous groups, corporations

and, where appropriate, ederal, state andother agencies.

b Share long-range planning and monitoringo cultural and other resources at sacredsites and ensure adequate unding ormonitoring.

b Involve all o the appropriate NativeAmerican leaders in decisions aboutmanagement practices that appropriatelyprotect sacred places and cultural resources.

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Sacred SitesAn Introduction

PART ONE


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Sacred sites are places o signicant spiritualvalue or Native American tribes, nationsand bands. Likened to naturally ormedchurches, they are, according to Indian rightsactivist Suzan Harjo, lands and waters wherepeople go to pray.

Sacred sites are integral to thepractice onative peoples land-based religions. In a 1report to Congress ollowing passage o theAmerican Indian Religious Freedom Act, the

Carter administration described the impor-tance o sacred sites:

Te Native peoples o this country believethat certain areas o land are holy. Teselands may be sacred, or example, because oreligious events which occurred there,because they contain specic naturalproducts, because they are the dwellingplace or embodiment o spiritual beings,because they surround or contain burialgrounds or because they are sites conducive

to communicating with spiritual beings.Tere are specic religious belies

regarding each sacred site which orm thebasis or religious laws governing the site.Tese laws may prescribe, or example, whenand or what purposes the site may or mustbe visited, what ceremonies or rituals may ormust take place at the site, what manner oconduct must or must not be observed at thesite, who may or may not go to the site andthe consequences to the individual, group,clan or tribe i the laws are not observed.

Te ceremonies may also require prepa-ratory rituals, purication rites or stages opreparation. Both active participants andobservers may need to be readied. Naturalsubstances may need to be gathered. Tosewho are unprepared or whose behavior orcondition may alter the ceremony are otennot permitted to attend. Te proper spiritualatmosphere must be observed. Structuresmay need to be built or the ceremony or itspreparation. Te ceremony itsel may bebrie or it may last or days. Te number o

participants may range rom one individualto a large group.

Some sacred sites are discrete geologicalormations, such as Bears Lodge/Devils owerin Wyoming, while others encompass entirelandscapes, such as the Black Hills o SouthDakota or the Indian Pass trails that spanhundreds o miles rom southern Caliornia tothe Mexican border. Te religious uses o

sacred sites also vary prayer circles, burials,visioning, purication and healing. In somecases, only religious practitioners or a tribesspiritual elders may use the sites.

Corporate leaders and government landmanagers oten ask: Where is the sacred site?Can its boundaries be delineated? Te answer isusually no. Furthermore, native activiststhemselves increasingly challenge the termsacred site as inadequate and inaccurate,because individual sites are usually part o aweb o culturally signicant spiritual locales

spread across a larger ancestral landscape. Tispaper uses interchangeably the terms sacredsite, sacred place, sacred land, cultural land-scape and sacred landscape.

Sacred places are ound on reservations,public lands and private lands. In the UnitedStates, many o the most visible and well-known sites are on public lands, especially inthe West. When Indians were relocated orconned on reservations in the 1th century,ownership o their ancestral lands was claimedby the ederal government to preserve uture

options or commercial development, especiallymining, logging, damming and grazing. Also,public land comprises a substantial portion othe Western states nearly percent, orexample, in Caliornia. I the sacred sites thatexisted prior to European colonization weredistributed evenly over the U.S. landscape, halwould be on public land.

o protect sacred places rom vandalismand excessive use, native people are keen toshield them rom publicity even withinnative communities some sites are accessible

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only to spiritual leaders. However, sites onpublic land are under the control o ederalland managers whose agencies encouragepublic recreational access to those lands, alongwith logging and mining.

Sacred sites on public lands are subject tomore stringent ederal oversight than privatelands, which oers some protection leverage.In several cases involving sites on public land,native leaders have set aside the cultural

imperative to keep the sites secret and publiclyadvocated or their protection.

SACRED SITES AND THE

PubLIC INTEREST

Native Americans struggle to protectsacred sites has become increasingly visibleto the public. More support has ollowedthat visibility. As native leaders reach out toeducate the public and to partner with envi-

ronmental, preservation and human rightsgroups and, in some cases, with ranch-ers, hunters, shermen and rock climbers perception is shiting about who benets

when sacred sites are protected. No longeris protection only in the interest o nativegroups, but also in the public interest.

b Sacred sites can be viewed as part o theguarantee o reedom o religion. Te FirstAmendment to the Constitution provides thatCongress shall make no law respecting anestablishment o religion, or prohibiting theree exercise thereo Sacred places in nature

are integral to the practice o the spiritualtraditions o Native Americans whose land-based religions deserve no less protectionunder the law than other religions.

b Protecting sacred sites today is a restor-ative justice measure. Even though the Bill oRights guarantees reedom o religion, NativeAmericans were not allowed to practice theirtraditional religions or more than 1 years.Draconian civilization laws banned ceremo-nies and visits to sacred places, and condoned

conscation o sacred objects. Protectingsacred sites is an ethical and legal stance thatpromotes justice and strengthens the principleo non-discrimination.

ChristopherMcLeod

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b Te history and traditions o nativepeoples comprise the oldest part o Americanhistory; their sacred sites have historic andcultural value. Since the early 1s, the ederalgovernment has listed traditional culturalplaces (CPs) on the National Register oHistoric Places, which is managed by theDepartment o the Interior. Many CPs aresacred sites. Te National rust or HistoricPreservation, a private nonprot organization,

creates an annual list o the Eleven MostTreatened Historic Sites in the U.S., and inrecent years has placed Zuni Salt Lake, theMissouri River, Ocmulgee Old Fields andIndian Pass, all Native American spiritual land-scapes, on the list. Sacred sites are some o thecountrys most endangered historic sites.

b Te protection o sacred sites has ecologi-cal value. Many sacred places are in pristinenatural settings, tucked away rom develop-ment and serving important ecosystem

unctions, such as watershed protection andbiodiversity conservation. Others, such as Mt.Shasta, are in the public spotlight largelybecause o their spectacular geographicaleatures. Environmentalists oten ally withnative groups to protect sacred sites.

b Sacred sites have spiritual value or manyAmericans, not only or Indian tribes. Centralto native worldviews is the belie that long-termecosystem and human survival depend onrevering particular locales and nature in

general. Non-Indian environmental and aith-based groups easily relate to the words o aModoc elder working to protect the MedicineLake Highlands in northern Caliornia: ouchthe hearts o the people Let them know, ithey keep going on and on like this all over theworld, man will destroy man.4

CORPORATIONS AND SACRED SITES

Corporations and native groups typicallysit on opposite sides in a confict involvingpotential degradation o a sacred site withthe government serving as arbiter. ypically,too, there are winners and losers, and some-times the arbiter is not neutral. Only rarelydo companies and native groups conducttwo-way consultations aimed at a win-

win resolution both sides can live with.Te large gap between the worldviews o the

parties in confict makes negotiation dicult.Most corporations believe in their right toprot rom the private ownership o property.Some corporate managers give a nod tocorporate social responsibility, but most areocused on generating short-term value toshareholders rather than long-term value toboth shareholders and stakeholders. Teydene their mission as eliminating obstacles todevelopment projects, whatever the social

merits o the obstacles. Tey care about legalcompliance. Social and ethical issues aregenerally considered outside o companypurview. Most companies are blind-sided whenconronted with demands to dene an ethicalstance toward sacred sites.

Te great majority o companies around theworld have not thought careul ly about theirresponsibilities in relation to human rights,says Mary Robinson, the ormer heado the U.N. Human Rights Commission.

Most do so only in response to a crisis. As

William Miller, the vice-president o AnschutzExploration Corporation said at the conclusiono a consultation in which the companywithdrew rom Weatherman Draw, an oilproject in Montanas sacred Valley o theShields: Were happy to get it behind us.5

Companies and native groups oten look atthe same landscape and see dierent things. Acompany may see a gold mine, the potential orgarnering resources and company growth;

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a native group sees its history, identity andspirituality. Corporate managers typicallybelieve and argue that using the lands resourc-es is in the public interest. It is a view thatresonates deeply in the American psyche. Arecent article in the Yale Law Review arguedagainst sacred sites legislation on the groundsthat, by increasing Indian control over publiclands, large tracts o the West would be lockedaway and vulnerable to under-use.

Is there a way to bridge the gap betweensacred sites and property rights? Educationand shaping societys values are key. It was acultural resource we learned a lot more aboutand one that merits some level o protection,said William Miller o Anschutz Corp.sconcession at Weatherman Draw.7

Another hope or bridging the gap is thatcorporate behavioral norms are fuid.Companies are infuenced not only by thebroad values o the societies in which theyoperate, but also by benchmarks and market

conditions within their industry. Companymanagers watch what industry leaders aredoing. A perceived risk to a companys com-petitive advantage and broader license tooperate will propel voluntary action to changeaster than regulatory, legal and politicalcatalysts.

In the past decade, an emerging corporatesocial responsibility (CSR) movement hasarticulated new values and dened new normsor corporate good practice in relation toenvironmental and social perormance on

issues ranging rom toxic emissions andbiodiversity protection to child labor, workerhealth, product saety, lobbying and corrup-tion. Te movement made up o responsibleinvestors, NGOs, aith-based groups, unions,business magazines, opinion makers, inter-national environmental and human rightsorganizations, and companies themselves isparticularly active in the extractives industry,largely because o its legacy o substantialenvironmental and social harms. A number oextractive companies have embraced corporate

social responsibility and ound it gives them acompetitive advantage. Still, many companieslag ar behind in terms o understanding whatit takes to attain a social license to operate.

While leading CSR companies have devel-oped substantive environmental managementpolicies, ew have adopted codes o conduct orpolicies on human rights. Fewer still havepolicies that protect indigenous rights. On theother hand, many human rights organizations

and other NGOs in the United States andglobally are pressing corporations to explicitlyembrace human rights. Including sacred sitesprotection within a human rights rameworkwould situate advocacy on this issue at thecorporate social responsibility movementscutting edge.

TOOLS FOR PROTECT ING

SACRED SITES

Native American groups have used our toolsto protect sacred sites: laws, policies andregulations; the consultation process; alliancesand public education; and harnessing tradi-tional ways and knowledge.

1Te Law

Te most commonly used set o tools, thoughar rom adequate, is the law. (Please seeAppendix Four or a ull discussion o exist-ing legislation and legal tools.) Te main

problem is that, unlike several other countries,such as Australia and Canada, the UnitedStates has no substantive ederal sacred sitelegislation, and what exists lacks teeth:

b The American Indian Religious Freedom Act

(AIRFA) o 1 states orceully that it is thepolicy o the United States to protect andpreserve or American Indians their inherentright o reedom to believe, express, andexercise traditional religions including butnot limited to access to sites...8

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1

However, the Act does not mandate anyprocedures that ederal agencies must use toprotect Indian access and prevent damage tosacred sites. Because it imposes no penalties on

violators and doesnt provide a cause o actionenabling native people to go to court, the Act ismore a statement o intent than a practical toolor either Indians or ederal agencies. Accord-ing to Jack rope, executive director o theAssociation on American Indian Aairs, every

government agency dealing with Indian tribesrom the Deense Department to the ParkService has its own policy on sacred lands.9

en years ater the passage o AIRFA, theSupreme Court ruled that the construction o aForest Service logging road through a NativeAmerican sacred area in northern Caliorniawas a dispute about government property, notreligion.0 Te Court, however, asserted thatederal agencies could choose to accommo-date Native American religious practices andprotect sacred sites.

b National Historic Preservation Act (NHPA)

o 1 requires ederal agencies that issuelicenses or have jurisdiction over a ederalproject to consider the eect o their actions onany site in the National Register o HistoricPlaces or that might be eligible or inclusion init. Te ederal agency must consult with therelevant State Historic Preservation Oce andgive the Advisory Council on HistoricPreservation, a ederal agency, the opportunityto comment.

NHPA was amended in 12 to clariy thatproperties o traditional religious and culturalimportance to an Indian tribe or NativeHawaiian organization can be eligible orinclusion on the National Register; that ederalagencies consult with Indian tribes or NativeHawaiian organizations about such sites; andthat ederal agencies establish historic preser-

vation programs in consultation with Indiantribes and Native American organizations. Tereview process established by NHPA is open tointerpretation and is subject to the political

and economic pressures o the administrationin power. A sympathetic administration in theWhite House can and Bill Clinton did lean toward protection. When George W. Bushcame into oce in 21, things quickly leanedthe other way.

b The Federal Land Policy and Management

Act o 1 is another law relevant to sacred siteprotection. It allows or the designation o

Areas o Critical Environmental Concernwhere special management attention is neededto protect and prevent irreparable damage toimportant historic, cultural and scenic values,as well as to wildlie and the environmentgenerally. Te directive applies to the Bureau oLand Management (BLM), which has jurisdic-tion over millions o acres o public land, andBLM policies aect corporations seeking toextract resources on those ederal lands.

b International Labor Organization (ILO)

Convention No. 1 is the only binding interna-tional treaty ocused exclusively on indigenousrights. One o its general principles states: Tepeople concerned shall have the right to decidetheir own priorities or the process o develop-ment as it aects their lives, belies, institutionsand spiritual well-being and the lands theyoccupy or otherwise use Te ILO is anagency o the United Nations. Its conventionsare binding in countries that ratiy them andare guidelines or countries that do not. TeUnited States has not ratied ILO Convention

1.

b Caliornias SB 1, enacted in 2,requires local governments to include NativeAmericans in their municipal growth planningprocesses, allows tribes to hold conservationeasements, and calls or sacred areas to beconsidered and protected in open spaceplanning. In 2, Caliornia also enacted SB22, which expressly protects the condential-ity o site and consultation records rom publicdisclosure.

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1

Using existing laws toprotect sacred sites hasshortcomings. Te lack oa ederal governmentmandate, and the inabilityto go to court to enorceit, means that there is notrue and lasting protec-tion or sacred sites. Anadministrative decision to

reject a particulardevelopment proposal canbe reversed, and evenwhen one proposedproject is quashed, thesite remains vulnerable toa new one.

Tere has been an ongoing eort to passnew national legislation to protect sacredplaces, but the political obstacles are huge.Mining interests, developers, private propertyrights groups, and even ederal land manage-

ment agencies such as the National ParkService are resistant. On the tribal side, thegreat variety o circumstance and culturalpractice and the need or condentiality makesone-size-ts-all national legislation dicult towrite, let alone pass.

otal reliance on legal mechanisms also hasdrawbacks. Te legal system is inherentlyadversarial: Tere are winners and losers. Lawstend to be rigid and discourage negotiation andengagement. It is doubtul that a law could bewritten to cover all types o sacred sites.

Enorcement o law requires vigilance andresources. Te key to social and corporate acceptance o the legitimacy o Indian claimsto protect sacred sites is respect. Laws help tobuildrespect but they cannot mandate it.

2 Consultation

Federally recognized Indian tribes aresovereign nations, and all consultations andcommunications between them and the U.S.government are considered to be government-

to-government relations. Tis unique statuso holding sovereignty over tribal membersand lands gives native peoples a potentiallypowerul tool or protecting their sacred sites.

Over the last 2 to 3 years, many tribeshave created Cultural Preservation Oces and

ribal Historic Preservation Oces to conductresearch and mapping, create policies and issuepermits, and take the lead in managing sacredsites and consulting about their importance ascultural resources.

Education is a by-product o consultation.Te consulting ederal oversight agency, suchas the Bureau o Land Management, the ForestService or National Park Service, or in a ewcases the consulting private company, has anopportunity to learn about a sacred site or thedepth o an Indian communitys concern about

potential harm to it. For Indian advocates, theconsultation process also provides an opportu-nity to educate and mobilize their own com-munities. Education o the general public isoten an indirect outcome as well, due to mediacoverage o the confict and consultationprocess.

Despite the act that ederal agencies mustconsult with sovereign tribal governments andnative communities, the lack o a stronger legalbackbone reduces the native peoples relativebargaining power in a consultation process.

ChristopherMcLeod

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Te highly asymmetrical power relationsbetween the parties also can have the unde-sired eect o wearing down, rather thanbuilding understanding and accommodation onative concerns. In consultations with corpora-tions, which are motivated by short-termdemands, native people nd themselves acingadversaries that oten are impatient or results.Even with strong consultation protocols, suchas those being developed by the Lawyers

Advisory Committee to the Sacred LandsProtection Coalition, underlying powerimbalances are likely to impede the emergenceo a just outcome to a consultation process (seeable 1.1). Te credible threat o a lawsuit,however, can even out the imbalances, makingnegotiations more successul.

Additional refections on consultationappear in the Conclusion (see pages ).

3 Alliances and Public Education

o protect sacred sites, Indian advocates arereaching out to build unity among themselvesand to gain the support o the wider public byorganizing conerences and workshops; lobby-ing state and ederal lawmakers; building part-nerships with environmental and preservation

groups; producing radio and lm documenta-ries; and using the Internet and the media topublicize threatening development projects.

O note are Zuni Salt Lake Coalition, Mt.Graham Coalition, SAGE Council and BlackMesa rust in the Southwest, and NativeAmerican Rights Fund, Sacred Lands ProtectionCoalition, Seventh Generation Fund and Honorthe Earth at the national level.

4 Harnessing raditional Waysand Knowledge

Native peoples eel a community responsibil-ity to care or land and lie. Continuing theage-old cultural practices that refect thatresponsibility provides them with the motiva-tion to protect their sacred sites. Te practicesinclude prayer, ceremony, medicinal plantgathering, hunting, runs, easts, communitydeliberation and dialogue, tribal councils, vi-sion quests, storytelling, and language reten-

tion and revitalization programs. NorthernCheyenne attorney and activist Gail Smallsuccinctly captures this cultural imperativewhen she says, Our spiritual connectionto the land is the basis o our resistance.

Introduction


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1

1 Become inormed about the tribes and other

native organizations that have historical and/or

ongoing ties to the land under the agencys

jurisdiction.

2 Build ongoing consultative relationships.3 Make special eorts to establish relationships

with native religious leaders.

4 Fully engage tribes, Native Hawaiian organiza-

tions, and native religious practitioners in

planning processes.

5 Help the tribes understand the ederal agency.

6 Institutionalize consultation procedures.

7 Contact tribes, Native Hawaiian organizations

and native religious practitioners early and

oten.

Table 1.1

Draft PrinciPles for feDeral agencies for consultation toProtect native american sacreD Places

8 Provide nancial assistance i possible and

appropriate.

9 Provide or sensitive inormation to be treated

with condentiality.

10 Maintain honesty and integrity in consultationprocesses.

11 Establish training programs on consultation

with tribes, Native Hawaiian organizations and

also native religious practitioners.12 View consultation as an integral and essential

element o the agencys mission.

SOURCE : Consultation Protocols or Protecting Native

American Sacred Places, drat developed by attorneys

consulting to the Sacred Lands Protection Coalition,

October 28, 2003

Introduction


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ConflictsWithCorporations

Over SacredSites

PART TWO


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1

onfict between corporations andnative groups over sacred sites has

grown dramatically and become morevisible in recent decades. Given that theentire continent was populated by a

multitude o distinct native cultures or

millennia prior to European colonization,there are perhaps thousands o sacredsites in the United States. In 2002, theNational Congress o American Indiansidentied 23 ongoing disputes over sa-

cred lands.1 Many involved confictswith corporations.

Tis section presents six case stud-ies o corporate conficts with nativegroups over sacred sites. Five are pre-sented in detail: Glamis Gold at IndianPass in southern Caliornia; Anschutz at

Weatherman Draw in Montana; Calpine

at Medicine Lake Highlands in north-ern Caliornia; Peabody Energy at BlackMesa in Arizona; and Salt River Projectat Zuni Salt Lake in New Mexico. Anadditional case study, Access Fund at

Cave Rock in Nevada and Devils owerin Wyoming, is summarized in a sidebar.

CaseStudies

INTRODuCTION TO CASE STuDIES

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illEvarts

Glamis Gold Ltd.andIndian Pass

CASE STuDY #1


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0

THE SACRED SITE

In the southeastern desert o Caliornia,straddling the borders o Arizona and Mexico,lies the traditional homeland o the QuechanIndian Nation. Archaeological evidencesuggests that tribes have used the Indian Passarea and lived o the bounty o the ColoradoRiver or at least 1, years.

Originally spanning some square miles,Quechan homelands were seized by the UnitedStates and inundated by gold mining interestsin the 1th and 2th centuries. oday, some3, Quechan live on a ,-acre reserva-

tion, and make their living largely by leasinglands or agriculture and sand mining andthrough gaming and recreational supportenterprises.

o the mountainous north and west o thereservation lies the spiritual heartland o theQuechan, including the rail o Dreams inwhat the Bureau o Land Management (BLM)has designated the Indian Pass-Running ManArea o raditional Cultural Concern.Geographical and cultural eatures aroundIndian Pass, and the desert trails that connect

them, are integral to contemporary Quechanreligious ceremonies and pilgrimages, provid-

ing guidance through the spirit world as well asknowledge o Quechan origin, history anddestiny. Tis area is also considered sacred toother Colorado River tribes, including theMojave, Colorado River Indian ribes andCocopah.

Te Indian Pass area holds what theQuechan describe as prayer circles, ceremo-nial places, shrines, ceramic scatters, petro-glyphs, and spirit breaks linked by ancienttrails.4

I these sites are destroyed, says Willa Scott

o the Quechan ribes Culture Committee,we will lose our ability to pass down our belies our cultural gatherings, uneral rituals,singing, storytellings and teachings. Withoutthese practices, our people will lose the mostimportant part o who we are.5

Non-indigenous Americans also recognizethe cultural riches o the area. Te NationalRegister o Historic Places lists archaeo-logical sites at Indian Pass. In June 22,the National rust or Historic Preservationlisted Indian Pass as one o the Eleven Most

INDIAN PASS

CaseStudy#1

ndian Pass, homeland o the Quechan Indian Nation in the southeastern Caliorniadesert, is owned by the ederal government and managed by the Bureau o Land

Management. Glamis Gold Inc., which began acquiring gold mining claims in the area in

1, does open-pit, cyanide heap-leaching, a process that can scar the landscape andpollute groundwater with cyanide. Ater protesting or years, the Quechan compromisedand agreed to allow a limited portion o its land to be protected under National Register

standards. In 21, Secretary o Interior Bruce Babbitt denied the Glamis proposal ormining in Indian Pass; a year later, President George W. Bushs new interior secretary,Gale Norton, rescinded Babbitts denial. In 22, Caliornia legislators passed a bill to

protect Indian sacred sites and another bill to mandate backll and other environmentalmitigation measures in gold mining operations. Governor Gray Davis vetoed the rst billbut signed the second. In October 23, Glamis led suit against the U.S. government un-der the provisions o NAFA, asking or $ million in damages. A hearing is scheduledin March 2, with a decision months (or years) later.

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o gold production to under $1 an ounce.7In 1, Glamis began acquiring gold

mining claims in the Indian Pass area. o getaround the requirement in the 12 MiningLaw that only U.S. citizens can mine on ederallands, Glamis established a wholly ownedsubsidiary, Glamis Gold Inc., incorporated inNevada. In turn, Glamis Gold Inc. establishedGlamis Imperial, which owns the Indian Passclaims as well as other claims in the Imperial

Valley.Glamis Gold Ltd. and its operating subsid-

iaries are dedicated to providing environmentalstewardship, while maintaining sound businesspractices, the company stated in inormationprovided to the New York Stock Exchange in1.8 However, unlike other mining com-panies, Glamis has never made public anenvironmental audit or sustainability report.No environmental, social or human rightspolicy is posted on the companys Web site, andnone o the corporations press releases or other

public inormation relate to social or environ-mental issues.

Moreover, Glamis does not belong to eitherthe Mining Association o Canada or theInternational Council on Mining and Metals,both o which have developed principles orsustainable mining, including relationships

Endangered Historic Places in America. IndianPass is today owned by the ederal governmentand managed by the BLM. It is part o theIndian Pass Area o Critical EnvironmentalConcern, the Indian Pass and PicachoWilderness Areas, and is adjacent to areasdesignated as Critical Habitat or the endan-gered desert tortoise. It also alls within areasprotected by the Caliornia DesertConservation Area and Caliornia Desert

Protection Act, passed in the 1s and srespectively.

THE COmPANY

Glamis Gold Ltd., a Canadian gold min-ing corporation based in Vancouver, BritishColumbia, describes itsel as a premierintermediate gold producer with low-costproduction, large reserves, and a consistent,strong growth prole. In 2, the companys

market capitalization amounted to $2. bil-lion. Focused on the Americas, the companysbusiness growth strategy entails the expansiono mines in Caliornia, Nevada, Honduras,Guatemala and Mexico.6 In 2, Glamisaimed to establish and operate new mines asecient low-cost producers, bringing the cost

glamis golD in HonDuras

SAN IGNACIO, Honduras Several hundred residents o a

Honduran town last week protested

against an open-pit mine run by a unit

o Canadas Glamis Gold Ltd., saying it

was damaging their environment.

It must go! It must go! some 700

protesters chanted outside the gates o

the San Martin gold and silver mine

that has operated in San Ignacio incentral Honduras since 1999.

The protesters said Thursdays

demonstration was the start o a move-

ment they hoped would lead to the

mines closure. They said the open-pit

mine was destroying their orests, and

threatening local water supplies.

Jose Sierra, head o the govern-

ments Department o MiningPromotion, said, however, the mine

was meeting all environmental require-

ments set out in the 10-year conces-

sion granted in 1999.

SOURCE :Reuters News Service, October 21,

2002

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with indigenous peoples (see able 3.). Glamisoperations in Central America have been thetarget o intense community criticism on bothenvironmental and human rights grounds (seesidebar on page 21).

THE ImPACT

Glamis mines gold using what it describes assimple, highly productive technology open-pit, cyanide heap-leaching. Te process entailsdigging up tons o ore, grinding it into neearth, heaping it onto open-air leach pads ona lining o plastic or asphalt, and spraying theheap with a solution o dilute cyanide. Tecyanide percolates down through the heap orseveral weeks, leaching out particles o gold,which drain into a pond and are then pumped

to a recovery plant.Te development o open-pit, cyanide heap-

leaching technology in the 1s opened up orebodies with a low gold content to economically

viable mining. However, environmentalconcerns have been raised on many counts.

First, the process yields a small amount ogold or a large amount o mined ore. A ton oore can yield as little as .1 ounces o gold,requiring hundreds o tons o ore to produceone wedding band. Unless companies arerequired to restore the land through measures

such as back-lling, the open-pit mines leave adeeply and permanently scarred and devas-tated landscape, a reality well-documented inNevada, Montana, Caliornia and elsewhere.9Moreover, even i sites are back-lled, originalland eatures, cultural sites and ecosystemsmay be lost orever.

Second, cyanide is highly toxic whendissolved in water, producing cyanide gas.Generally, mining companies work hard to

keep cyanide heaps rom leaking, since leakageentails loss o gold. However, leaks and spillsdo occur. A cyanide spill rom an overfowingtailings dam at a gold mine in Romania in 2killed thousands o tons o sh and other ma-rine lie, eectively rendering the isza Riverdead.0 In Montana, cyanide heaps leaking intolocal groundwater prompted passage o a voterinitiative in 1 that banned cyanide heapleaching in the state.

As originally proposed by the company, theGlamis Imperial project at Indian Pass entailed

three open pits on 1, acres with, on average,about one ounce o gold retrieved or every 22tons o ore extracted. Te largest o the openpits would have been about eet deep, withwaste rock piles as high as a 3-story building.Glamis did not propose to backll it. Te orebody at Indian Pass is o a lower-than-averagegrade, requiring a higher-than-average ratio omaterial disturbed to metal recovered. A lowgrade o ore means a low prot margin, sug-gesting that environmental protection ormitigation measures could make the venture

unprotable.Te combination o a large open pit, related

mine roads, power lines, waste rock piles, andwater wells draining the desert aquier, as wellas potential cyanide pollution o groundwater,would eectively mean the obliteration oIndian Pass as a place o spiritual practice andarchaeological signicance or the Quechanpeople. In a report prepared at the request othe BLM, the Advisory Council on HistoricPreservation concluded that, even with mitiga-tion measures proposed by the company, the

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project would be so damaging to historicresources that the Quechan ribes ability topractice their sacred traditions as a living parto their community lie and developmentwould be lost.

THE CONFLICT

From 1 to 2, the Glamis Imperial

Project wended its way through a virtualhurricane o tribal, NGO, community andgovernment opposition. Te rst hurdlewas the Caliornia Desert Protection Act(CDPA). Glamis asserts the company held osubstantial investment in Indian Pass until1, when the implementation o the Actwas nalized. Glamis claims it then becameclear that the project was outside the wilder-ness areas designated by the Act. Glamis leda plan o operation in December 1 withboth the BLM and the state o Caliornia to

obtain approval o its proposed gold mines.BLM spent six years reviewing the Imperial

Project, a process that included several publichearings, many cultural resource reports,two drats o an Environmental Statement/Environmental Impact Report (DEIS) in 1and 1, and a nal EIS/R in 2. Extensivepublic comment was received during each step,with the vast majority o comments in opposi-tion to the mining proposal.

Te BLM, however, consulted with theQuechan ribal Council and the Quechan

Cultural Heritage Committee on the surveysand environmental documents late in theprocess, only ater the rst DEIS/R wasreleased. Upon learning directly rom the tribeo the spiritual signicance o the site, the triberequested and BLM undertook a more inten-sive archaeological investigation and NativeAmerican consultation report, which led todesignating Indian Pass-Running Man as anArea o raditional Cultural Concern (ACC).Although the Quechan view their entiretraditional territory as continuous and without

boundaries, they agreed to the more limitedACC designation in order to more readilyconorm to National Register standards, and totry to protect the key areas under direct threatrom the proposed gold mine.

At each step o the process, and duringsubsequent government-to-government consul-tation between the BLM and the tribe, the

spiritual, cultural and archaeological values oIndian Pass were rearmed and immitigableenvironmental impacts were documented.In 1, at the petition o the BLM, the IndianPass-Running Man ACC was withdrawn romurther mining applications but the then-existing Glamis claims were grandathered in.In early 1, the Advisory Council on HistoricPreservation (ACHP) recommended that,Interior take whatever legal means [are] avail-able to deny approval or the project.4 ribaland other Native American groups joined with

a broad spectrum o preservation and environ-mental groups to make the case with the gov-ernment and the public.

Glamis remained unmoved, however. It rsttried to molliy the tribe by oering a job and apickup truck to a tribal member. It later, and tothis day, tries to minimize the tribes views bystating that its sacred area is too large. QuechanPresident Mike Jackson was oten quoted assaying, What part o no dont they under-stand?

In late 1, then DOI Solicitor John Leshy

CaseStudy#1

Indian Pass, cacti blooms

Bil

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issued a legal opinion nding that the BLMcould deny the mine, based upon the ACHPand other ndings. Glamis led suit in ederalcourt against DOI claiming that Leshys opin-ion was wrong. Te tribe moved to intervene inthe suit. Te court dismissed Glamis claim.Next, Glamis said it would not pay or the nalEIS/R to be produced. BLM ultimately providedthe unds and the nal report was issued inNovember 2.

Finally, in January 21, Secretary o InteriorBruce Babbitt denied the Glamis Imperial pro-posal due to its cultural and environmentalimpacts the rst time a proposed mine proj-ect was denied under the 12 Mining Law.

wo months later, Glamis led suit againstthe Department o Interior in the Washington,D.C., District Court challenging Babbittsdecision on the grounds that it misinterpretedthe law. Glamis lawyers argued that, while theDepartment o Interior had ollowed its ownpolicies, the mining law does not generally

allow a mine to be denied and that specialregulations required or the protectedCaliornia desert had not been promulgated byDOI. In November 21, the tribes motion tointervene by right was granted by the court.Just days later, without public notice or consul-tation with the Quechan, George W. Bushsnewly appointed interior secretary, GaleNorton, rescinded Babbitts denial o the mineso that the mine could be reconsidered. Glamisquickly withdrew its lawsuit.

As a result o intense public outcry and

Quechan-led organizing, Caliornia statesenators introduced two state bills in 22, oneprotecting Indian sacred sites and the othermandating backll and other environmentalmitigation measures to restore mining sites topre-mining conditions. Largely due to multi-stakeholder consultations involving Indian andbusiness leaders, both bills passed theCaliornia legislature.5 However, bowing topressure rom developers and business groups,ormer Governor Gray Davis vetoed the sacredsites protection bill. Te environmental

legislation requiring backlling and recontour-ing, which specically aimed to make mines inthe desert more environmentally responsible,was signed into law by Gov. Davis in April 23.

In October 23, Glamis again led a claim,this time against the U.S. government underChapter 11 o the North American Free radeAgreement (NAFA). Glamis claims that it wasexpressly targeted by the Caliornia miningmeasures and, thereore, it asserts the Caliornia

law breaches NAFAs provision or MinimumStandard o reatment or oreign investors.Moreover, Glamis claims that the legislationconstitutes a measure tantamount to expro-priation, causing the company to lose $million in preparatory investment and assessed

value o the mine. NAFA allows expropriationonly or a public purpose and on a non-dis-criminatory basis. Still unwilling to concedethat protection o a sacred site constitutes apublic purpose and wanting to deliver share-holder value, Glamis is seeking $ million in

damages.6

LESSONS LEARNED

b Political climate can infuence a tribalgroups success in engaging with the govern-ment. When representatives o the governmentare willing to listen, tribal groups can intervenein government processes and protect a sacredsite. Under the Clinton administration, theconcept o sacred site protection made legaland moral headway, and protection o Indian

Pass was dened as being in the public interest.Te change o administrations essentiallyreversed this course at the ederal level.

b Partnerships between Indian, preservationand environmental groups can eectively pressor sacred site protection in both administra-tive processes and legislative action at thenational and state levels. Intratribal coopera-tion where the tribal government and itscultural or spiritual leaders work toward acommon goal and invest resources in it can

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% View rom Blac Mountain

BillEvarts

be critical to successes. Intertribal cooperation where leadership rom many tribes pulltogether technical and political resourcestoward a common goal also can be animportant actor.

b Direct engagement between Indian andbusiness leaders can be the key to drating andpassing legislation. With a longer and widerconsultation process in Caliornia, business

leaders who eared and largely misunder-stood the implications o the sacred sites billmight have been persuaded to drop theiropposition. Working with these diverse groupsultimately proved worthwhile when the laterbills, SB 1 and SB 22, were passed andenacted through bipartisan support.

b Te lack o national and state legislationthat specically protects sacred sites is aundamental, structural weakness or sacredsite protection advocacy. Without a legislativebackbone, even high-level administrative

decisions can be quickly overturned whenpolitical winds change. Moreover, nationallegislation with one overarching policy de-signed to protect sacred land would correct thecurrent situation o inconsistent multiple-agency policies. Even Glamis Vice PresidentCharles Jeannes argued, Tere needs to besome coordination among governmententities as to how this is resolved.7

b National or state-level sacred site legisla-tion is especially important in cases involving

low-cost, low-prot margincompanies, especially oneslacking a product that consumerscan readily boycott. Companieslike Glamis tend to reject

voluntary initiatives becausetheir reputation or socialresponsibility is unimportant.On the contrary, they generallydo not take no or an answer,

no matter how loudly and otenthey hear it. Tis makes it

considerably more dicult to devise advocacystrategies that are eective in exerting pressureon the corporation.

b New legislation or policies should, as muchas possible, expressly extend to pre-existingclaims and licenses; without them, no matterwhat level o protection is achieved or theseplaces, the entitlement issues remain. Morethought should be given to the easibility and

appropriateness o allowing land exchanges orestablishing unds to retire claims and licenses.Any such policies, however, should assiduouslyavoid creating incentives to site industrial usesin culturally sensitive areas.

b Te power o harnessing traditionalknowledge and practices is key. Te Quechanused gatherings, spirit runs, and seekingknowledge rom the elders and ancestors toinorm their strategy and sustain their eort.Bringing in knowledgeable, caring consultantsand advisers to supplement these eorts is also

helpul, though outsiders must respect thetraditional ways and understand the need orcondentiality.

b When consultation is neglected, under-taken late, or intentionally avoided, confict isguaranteed. Tis case study shows it wouldhave been in everyones best interest to involvetribal entities early and oten in both planningand project development processes. Te

viability o collaborative problem solvingeorts also should be explored.

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CASE STuDY #5CASE STuDY #2

Anschutz Exploration Corp.andWeatherman Draw

Scott

Prinzing


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7

THE SACRED SITE

Nestled in south-central Montana is a smallcanyon that contains the largest collection oNative American rock art on the continent.

Called the Valley o the Shields or the Valley othe Chies by native people, the canyons wallseature paintings o large, multi-hued draw-ings o shields, animals and humans createdby members o a dozen dierent tribes overthe last thousand years. Some shields havehands and eet, perhaps representing specicindividuals who can be traced to Mexico.

Te canyon is sacred to many tribes, includ-ing the Crow, Blackeet, Comanche, NorthernArapaho, Northern Cheyenne and EasternShoshone, and is historically a place o peace.

In winter, tribal members still engage in visionquests, burials, prayers and the gathering omedicinal plants there. Tis isnt just someplace on a hill, says Jimmy Arterberry, aComanche preservation leader. Tis is a livingspiritual center. Te church is alive here.8

Te valley is known as Weatherman Drawto non-native people because it was namedater the Weathermon amily that immigratedrom Germany and settled in the area. (A drawis a gully or ravine.) Te area spans about,2 acres and once was part o the Crow

Reservation. oday, it is owned by the ederalgovernment and managed by the BLM. Untilrecently, when the area was thrust into the na-tional spotlight, it was unknown to the generalpublic. Indeed, the remoteness and wildness

kept away even large concentrations o tribalmembers. In 1, in recognition o its signi-cant cultural values, the BLM designatedWeatherman Draw as an Area o CriticalEnvironmental Concern (ACEC).

THE COmPANY

Te Anschutz Exploration Corp. is a Denver-based oil company owned by billionaire PhilipAnschutz. Both the corporation and its owner

shun publicity: Neither the corporation nor itsparent company, Anschutz Co., has a Web site.Philip Anschutz has given no interviews since1.

What is known is that Philip Anschutz is oneo the richest people in the United States hisnet worth was estimated to be nearly $ billionin 21. He is a strong supporter o the Repub-lican Party, contributing $3, to the partyand the Bush campaign between 1 and21.9 Anschutz owns or has major stakes inhigh-prole companies including United Artists,

CaseStudy#

WEATHERmAN DRAW

Weatherman Draw in south-central Montana, owned by the ederal government andmanaged by BLM, is a 1,-year-old cultural site sacred to many tribes or its clipaintings o shields, animals and humans. Anschutz Exploration Corp. acquired twoleases to mineral rights there in 1, expecting drilling to yield 1 million barrels o oil

over 2 years. Te exploration work had the potential to increase vandalism in this remotelocation, destroy the canyons serenity and irreparably damage a living spiritual center.

Leaders rom 1 tribes plus environmental and preservation groups decided to ght theleases publicly ater BLM approved one exploratory well. Tey appealed the decision toDOI, launched a media campaign and enlisted congressional help. Ater meeting with itsopponents, Anschutz dropped its plans and donated the leases to the National rust or

Historic Preservation.


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Qwest Communications andthe Los Angeles Lakers. He isdeeply involved in energydevelopment and is one o themost active players in oil andgas exploration in the RockyMountain region. He also isan avid art collector.

In 1, AnschutzExploration Corp.acquired

two leases, issued originally in1, to mineral rights inWeatherman Draw. Te leasescost Anschutz $1 per acre per

year. I successul, the explo-ration was projected to yieldabout 1 million barrels o oilover 2 years. According toAnschutz estimates, the probability was one inseven that oil would be discovered throughexploratory drilling.

THE ImPACT

Oil drilling, like any other commercial devel-opment o Weatherman Draw, would exposethe area to a much higher level o publicity andpublic access. Anschutz planned to improvean abandoned cattle road that passes within ahal mile o the canyon and the rock art. Withincreased public usage the potential or vandal-ism grows. At other sacred sites, and indeedin Weatherman Draw itsel, non-native visitors

have drawn grati on or near petroglyphs, andhave even used them or target practice. Rockart panels are sometimes removed entirelyand sold on the international black market.

Public access and commercial exploitationwould also destroy the quietude and serenity othe site. Noisy road trac, drilling equipmentand oil workers would, rom the NativeAmerican perspective, disturb the power othe spirits. In a statement to the BLM, theNorthern Cheyenne ribe pointed out that,I the spirits that exist in the area were driven

away, important Northern Cheyenne ties withthe spiritual realm would be irreparablysevered. Disturbance o the site could aectnon-native peoples as well. An Eastern

Shoshone tribal member warned the BLM thatIndian rock art is spiritually potent andexposure to the power o these places can andwill bring harm to people.0

THE CONFLICT

For six years, Anschutz application to drill oroil was kept in limbo while the BLM consideredwhether and how to protect the site. riballeaders made their concerns known quietly to

the BLM. In an August 1 letter to the BLM,odd Kulstrom, the companys land manager,warned that Anschutz patience had ended.Under the terms o the ACEC, oil, gas and min-eral exploration is not al lowed in WeathermanDraw. However, the leases were grandatheredbecause they pre-dated the tighter regulations.

In February 21, 12 days ater PresidentBushs inauguration, the BLM approved asingle exploratory well in Weatherman Draw.Permission to drill was based on an Environ-mental Assessment that considered only the

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impacts o exploration, rather than a morestringent Environmental Impact Statement,which would have had to consider the potentialeect o ull-blown oil development.

Te BLMs decision catapulted WeathermanDraw into the national spotlight. Previouslyreluctant to reveal much about the sites loca-tion and sacred characteristics, tribal leadersdecided to ght the decision, including launch-ing a major media campaign, even i it meantexposing the site to more publicity. As JimmyArterberry said, We decided to try to protect itat all costs.

en tribes joined together to appeal theBLM decision, along with environmental andpreservation groups. Teir appeal was based

on the limited scope o the EnvironmentalAssessment, but the tribes also questionedwhether the BLM had ullled its statutoryobligation to consider the projects culturalimpacts. Anschutz land manager has acknowl-edged that the company worked closely withBLM ocials to tailor the original proposal ina way that would allow BLM to avoid anenvironmental impact review, thus deliberatelyavoiding the issue o what would happen tocultural resources should oil be discovered.4

For Anschutz, the BLM approval represent-

ed long overdue relie rom regulatory limbo.We understood this was a sensitive area, saidthe companys land manager, and we wantedto work with the people in the area. But he

ound the Native American response vagueand without clarity.5

In May 21, the BLM upheld Anschutzright to dril l or oil in Weatherman Draw. Witha nod to the opposition, the BLM stipulatedthat there should be a ence around the rock artareas and a security guard and locked gate onthe companys access road. ribal leaders,however, argued that the obscurity aorded bywilderness would protect the site ar betterthan a modern sentinel and chain link ences.A Sierra Club organizer said the measures were

like putting lipstick on a pig its still a pig.6Te tribes and their allies then took threesteps: Tey appealed the decision to theDepartment o Interior, garnered mediacoverage pointing out the irony o a billionaireart collector threatening Native American art,and sought help rom Congress. In June 21,Representative Nick Rahall (D-WV), intro-duced HR 2, Valley o the Chies NativeAmerican Site Preservation Act o 21. Rahalllikened Anschutz Weatherman Draw projectto placing an oil rig in the Sistine Chapel.

Cli painting o three shields in Weatherman Draw

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0

Are we really that desperate? Are we reallythat greedy? he asked his congressionalcolleagues.7

Faced with a potentially lengthy and expen-sive legal challenge, as well as increasingly crit-ical public exposure, Anschutz entered intodirect negotiations with concerned tribes andthe National rust or Historic Preservation.Te negotiations led to a precedent-settingagreement on April 23, 22: Anschutz

dropped its oil drilling plans or WeathermanDraw and donated the leases to the Nationalrust, which will hold them until they expire.

Considering the size o the resource, thetime and eort it would take to get it, and the

value o the cultural resource, we chose toorego the opportunity, said company VicePresident William Miller. Its simply riskmanagement.8

In February 23, the National rust orHistoric Preservation publicly honored theAnschutz Exploration Corp. with a National

rust Presidents Award.Anschutz did the right thing, and thereby

provided a model or other corporations toollow, said rust President Richard Moe.Te sensitivity and good citizenship that thiscompany has demonstrated deserve the thankso everyone who cares about preservingAmericas heritage.9

LESSONS LEARNED

b Te media is potentially a powerul andvaluable tool. Te decision by the tribes to gopublic was crucial in gaining widespreadsupport and shining a critical spotlight oncorporate behavior. While most companies aresensitive to having their reputation damaged,Anschutz both the company and the man is especially publicity-shy. However, publicitypresents a dilemma to tribes seeking to protectsacred sites rom vandalism through anonymity.

b A third party trusted and respected byboth the corporation and the Native Americanstakeholders can help acilitate the process.Te Anschutz-Weatherman Draw confict wasresolved through a direct negotiation betweena corporation and tribes, mediated by theNational rust, in this case a mutual ally.Factors in this successul negotiation included:the large number o tribes and the unity theymaintained as to the goals o the negotiation;strong, active partnerships and alliances withthe environmental and preservation communi-

ties; the threat o a credible, well-groundedlegal challenge; and the prospect o new protec-tive legislation.

b Coalition-building and the ability tomaintain the coalitions unity are greatlyenhanced by clearly articulated, ocused goalsreiterated throughout the process.

% Weatherman Draw / Valley o the Shields

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ScottPrinzing


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CASE STuDY #5CASE STuDY#3

TomSem

ple

CalpineandMedicine Lake

Highlands


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mEDICINE LAkE HIGHLANDS

medicine Lake Highlands in northeastern Caliornia has been used by various tribesas a sanctuary and place o healing or 1, years. Calpine Corp. is the worldslargest supplier o geothermal energy. In the mid-1s, without consulting local tribes,the BLM granted geothermal developers 3 leases covering square miles in the

Highlands. In 1, Calpine and CalEnergy (later purchased by Calpine) began consultingwith tribes about their plans or two geothermal power plants at Medicine Lake, plants

that the environmental impact statements said would orever damage native traditionaluses as well as the pristine environment. In May 2, one project, elephone Flat, wasdenied by the ederal agencies at the local level, but the denial was overturned in 22 bythe Bush administration ater Calpine led a $1 million takings claim. Te Fourmile

Hill Project was approved with the condition that there be a ve-year moratorium onurther geothermal development in the Highlands. Te Pit River ribe and the NativeCoalition or Medicine Lake Highlands Deense led appeals and lawsuits. At the time othe reversal, the DOI set mitigation measures or the projects, and the tribes ound newallies through grassroots organizing and the socially responsible investment commu-

nity. Lawsuits led in June 22 and May 2 by the Pit River ribe and environmentalgroups against Calpine and the ederal government are still pending. Meanwhile, Calpine

has led or bankruptcy.

THE SACRED SITE

Medicine Lake Highlands is a volcanic area innortheastern Caliornia, 3 miles east o Mt.Shasta, that encompasses orests, lakes, springs,caves and glass-like lava fows. Te MedicineLake Caldera is the continents largest shield

volcano a volcano with broad, gentle slopesbuilt by the eruption o fuid basalt lava.

Te Medicine Lake Highlands region issacred to many o the native people in northernCaliornia, including the Pit River, Modoc,Shasta, Karuk and Wintu, who recognize itsstrong healing energy. According to GenePreston, ormer chairman o the Pit Riverribal Council, the Highlands are a placewhere the ull magnitude o the Creatorspresence can be experienced, a place where theCreator let messages or the people on how tolive.40

Native people believe Medicine Lakes

waters have the power to heal and renew.For at least 1, years, they have used theHighlands or ceremony, vision questing,prayer, medicinal plant gathering, healing,hunting and obsidian trading activities thatcontinue today. raditionally, the Highlandsarea was considered a sanctuary, a place opeace, where tribal members put down theirweapons to be calmed and cleansed by the landand water.4 Te area continues to have apowerul impact, elt by non-natives andnatives alike. As Modoc elder Charlene Jacksonput it, Medicine Lake belongs to all peopleonce they get to know what the spiritual part olie is all about.4

Medicine Lake Highlands is located withinthe Modoc, Klamath and Shasta-rinityNational Forests and is 1 miles south o LavaBeds National Monument. In 1, theMedicine Lake Caldera was designated as araditional Cultural District by the Interior

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Departments Keeper o theNational Register o HistoricPlaces.

THE COmPANY

Calpine Corp., based in SanJose, Caliornia, is an energycompany that develops and

operates power plants utilizingnatural gas and geothermalsteam. Founded by CEO PeterCartwright and a team o ourin 1, Calpine is one o thelargest independent power pro-ducers in the United States. Aso mid-2, Calpine had 3,employees and operated 2power plants with the capacityto generate 2, megawattso electricity. With 1 plants in

Te Geysers region o north-ern Caliornia, Calpine is theworlds largest supplier o en-ergy rom geothermal sources.In December 2, Calpine ledor bankruptcy protection, butcontinued to operate ater CEOCartwright let the company.

According to the companysWeb site and annual report,Calpines business strategy isbased on rapid growth as a

supplier o clean, reliable power. Te companyclaims that it has the lowest emissions o allU.S. power companies. In 22, the companyincreased its generating capacity by more than percent. At the end o 2, Calpine wasconstructing eight new acilities, expanding itscapacity by an additional 3, megawatts.

However, nancial analysts questionedCalpines growth strategy, and in October23, Moodys downgraded Calpines debtrating, citing among other actors that thecompany was nancially over-leveraged.4

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In 2, the company attempted to reduceits debt by selling oil and gas properties andnatural gas power plants but not its geothermalleases.

Between the mid-1s and 21, Calpineobtained 3 leases covering some squaremiles o the Medicine Lake Highlands. BLMinitially granted the leases to various geother-mal companies without consulting any localNative American tribes. By 1, Calpine wasseeking approval or a geothermal power plantproject at Fourmile Hill, just outside the


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Medicine Lake Caldera, while CalEnergyproposed another at elephone Flat, in theheart o the caldera. Te -megawattelephone Flat project would encompass eightsquare miles and occupy one-ourth o theraditional Cultural District. Te FourmileHill geothermal power plant project wouldencompass six square miles and be located justoutside the Cultural District. Calpine pur-chased CalEnergys leases in October 21.

Calpine describes itsel as committed toullling the continuing need or clean,ecient, reliable electricity in an environmen-tally responsible manner.44 In March 2, theUniversity o Colorado selected Calpine or asustainable business award or its environmen-tal perormance in Colorado.45 In addition toenvironmental responsibility, Calpines Code oConduct emphasizes integrity and goodcommunity relations.

According to then-CEO Cartwright,Calpine is committed to being regarded as a

welcome member o every community wherewe have power plants, oces or other acilities.46

THE ImPACT

Te ederal government reviewed the environ-mental and cultural impacts o geothermaldevelopment at Medicine Lake, and conductedconsultations with local tribes starting in 1.An environmental impact statement concludedthat Native American traditional uses would

suer irreversible adverse eects rom geother-mal development, which led to Medicine Lakes1 designation as a raditional CulturalDistrict. However, beore this designationwas made, the BLM renewed Calpines leasesin 1 without consulting local tribes.

o tribal practitioners, any drilling o thesacred Medicine Lake lands constitutes adesecration. According to Gene Preston, then-chairman o the Pit River ribal Council, the

scale o Calpines proposed development wouldturn the area into an industrial zone.47 Calpinehas publicly announced intentions to developup to 1, megawatts o capacity at MedicineLake. Approval o the rst project wouldsmooth the way or additional plants. Beyondthe roads, clear cuts, drill rigs and transmissionlines, each power plant would entail a 1-oottower, operating 2 hours around the clock, litby bright lights at night.

Despite its clean, green image, geothermalpower can have signicant environmental im-pacts, including disruption o wildlie, loss omedicinal and other plants, air emissions otoxic hydrogen sulde, boron, mercury andarsenic, and groundwater contamination.Water pollution is o special concern. Te purewaters o the Medicine Lake Highlands, includ-ing the Fall River and Pit River, fow into theCaliornia aqueduct system, which provideswater to millions o users throughout the stateas ar south as San Diego, miles away.48

In addition to its spiritual and culturalimpacts on native peoples, damage to theremote, pristine area would impair recreationaluses and what environmental economists callexistence value the value that people placeon the existence o wild places, pure water,animals, biodiversity and more. Te environ-mental, social, cultural and historical impactso the proposed power plants at Medicine Lakeare so severe, according to Clancy enley o theU.S. Environmental Protection Agency, thatyou could not by any stretch o the imagina-

tion call it green energy.49While environmental and cultural values

are expected to be harmed, the power plantscould bring local economic benets. Calpinehas promised jobs and college scholarships tolocal tribal members, as well as nancialsupport to the Shasta ribein its lobbying othe Bureau o Indian Aairs or ederalrecognition.50


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Chri

stopherMcLeod

THE CONFLICT

Te confict between nativegroups and Calpine overMedicine Lake erupted in1, when the Pit Riverribal Council and otherIndian groups were rstconsulted by the BLM. TePit River ribal Council

passed a resolution oppos-ing geothermal develop-ment ater the BLM hadalready begun a review othe two proposals. Sincethen, tribes have engagedin what ormer Pit RiverChairman Gene Preston calls ater-the-actconsultations and environmental review.5

Many tribal councils and groups opposeddevelopment at Medicine Lake, though someavored it, concluding that economic benets

outweighed cultural concerns. More than percent o public comment letters opposed thegeothermal projects.5 In 1, BLM renewedCalpines leases, again without consulting localnative people.

In May 2, during the nal year o theClinton administration, the BLM announced acompromise, approving the project at FourmileHill but imposing a ve-year moratorium onurther geothermal development in theHighlands and blocking the elephone Flatproject because o concerns about intrusions in

the raditional Cultural District.5 In response,Calpine sued the ederal government or $1million (or taking a private property rightwithout compensation).

In June 21, with a new administrationsetting policy, the BLM lited the moratorium.In April 22, the government settled thelawsuit with Calpine and agreed to reconsiderthe May 2 compromise. On June 13, 22,the Pit River ribe, the Native Coalition orMedicine Lake Highlands Deense and envi-ronmental organizations led a lawsuit chal-

William (Jimbo) Simmons protests at Calpine headquarters in

San Jose, Caliornia, January 00

lenging the approval o the Fourmile Hillproject in the 2 decision. (Tis lawsuit wasdenied in February 2 and was appealed tothe Ninth Circuit Court o Appeals.)

In November 22, the Bush administration

ocially overturned the compromise agree-ment. According to Mark Rey, an undersecre-tary in the Agriculture Department, thedecision was heavily infuenced by the Calpinelawsuit. Te Justice Department had advisedthat Calpine had a strong legal position andboatloads o taxpayer money would be lost ithe Clinton-era denial was not overturned.54

With a nod to native concerns, a Record oDecision in 22 approved the originally deniedelephone Flat project with new conditions.Calpine was required to realign a 13-mile power

line to make it run parallel to an existing road,thus avoiding the raditional Cultural District.Calpine also modied the plant design toreduce environmental impacts by re-injectingwater into the underground geothermal pool tobe reheated and re-used.55

In spite o these mitigations, the Pit Riverribal Council sought help rom Congress. In apublic statement, Sen. Barbara Boxer (D-CA)wrote, I the project were to proceed, theunique and sacred character o the MedicineLake Caldera will orever be lost.56


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In its ocial statements, the InteriorDepartment claimed: Te increased nationaland state ocus on renewable energy, along withthe urther mitigation measures required, justi-ed approval o the project. On the samegrounds, the Caliornia Energy Commissionprovided nearly $ million in subsidies to thetwo projects. Opponents point out the ironythat the electricity generated by the plants willbe exported out-o-state to the Bonneville

Power Administration or use in Idaho,Oregon and Washington.57

Subsequent actions taken by both partiesurther escalated the confict. In October 23,Calpine applied to the Forest Service orpermission to conduct 2 surveys in the areaaround Medicine Lake in search o urthergeothermal potential.58 Native American andenvironmental groups, on the other hand,reached out to a new ally, the social ly respon-sible investment community. Calvert, thenations largest amily o socially responsible

mutual unds, led a shareholder resolutionrequesting Calpine to cease and desist devel-opment in the Medicine Lake Highlands anddevelop, implement and publish a writtenpolicy on the rights o indigenous peoples.59Amid substantial publicity, the resolutionreceived more than million votes at CalpinesMay 2 shareholders meeting. Representing.3 percent o the total number o votes,this was insucient to pass the resolution.However, the eort made the company awarethat investors placed value on the protection o

sacred sites. Awareness did not translate intoaction. In June 2, Calvert divested its shareo Calpine, citing the act that the company didnot meet the requirements o the mutual undspolicy on the rights o indigenous peoples.

In May 2, the Pit River ribe, the NativeCoalition, the Mount Shasta BioregionalEcology Center and a coalition o environmen-tal organizations led two lawsuits against theederal government and Calpine challengingapproval o the elephone Flat project.60 In thesuits, the plaintis alleged that the BLM and

the Forest Service violated ederal laws pertain-ing to geothermal development, the environ-ment, historic preservation, religious reedomand the Indian trust doctrine. Te lawsuits arepending and have been stayed by CalpinesChapter 11 bankruptcy protection.

Grassroots organizing also continued toexpand and gain momentum, targeted atmonitoring Calpines compliance with theconditions o its 22 project approval. Te

elephone Flat Geothermal Project OversightCommittee was ormed, comprised o repre-sentatives rom the Pit River ribe, Klamathribe, Shasta Nation, Native Coalition, SaveMedicine Lake Coalition, Mount ShastaBioregional Ecology Center, Medicine LakeHomeowners Association, and an administra-tor representing Siskiyou County. At aSeptember 2 meeting to review Calpinescompliance with the 22 Record o Decision,the U.S. Forest Service and BLM heard numer-ous strong objections rom the committee

regarding:

b Failure to involve Native American tribalmembers in the archaeology plans.

b Failure to adequately survey or endangeredbirds such as northern spotted owls andgoshawks.

b Inadequate plans to control hazardousmaterials, monitor hydrology and reclaimnative ecosystems.

Beyond the inadequacy o Calpines compli-

ance with the conditions o the Record oDecision, the Committee re-opened largerconcerns about the project itsel. In its deense,Calpine argued that geothermal energy is acleaner a

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