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Thursday, December 14, 2006

Burnett on Native American Claims Under the NHPA

David Burnett (UVA School of Law) has posted The False Promise of the National Historic Preservation Act for Native Americans on SSRN.  Here's the abstract:

Native Americans have frequently relied on the First Amendment in defending their land rights against the federal government. However, tribes have generally failed to prove that disputed land is central to their religious beliefs and practice, as required by free-exercise jurisprudence, and therefore have not won many First Amendment claims. Consequently, several authors have recently recommended that Native Americans look to the National Historic Preservation Act (NHPA) as an alternative source of legal protection for land rights. This 1966 Act requires federal agencies to consider the impact of their actions on historic properties and requires agencies to consult with interested parties, including Native Americans, before undertaking such actions.

Surprisingly, no one has examined how Native Americans have fared with these NHPA lawsuits. This note remedies that shortcoming by surveying the history of Native American NHPA lawsuits. The result is not very encouraging for plaintiffs, since most of these claims have failed. However, the lawsuits have failed because of obvious and easily remedied shortcomings, such as weak facts or misuse of the statute (including suing the wrong party, suing too late, and suing based on economic rather than historic interests). In contrast, the few successful NHPA claims involve circumstances where Native Americans showed that the federal government clearly violated its duty to consult with tribes and clearly acted in bad faith. This history of Native American NHPA litigation, while not encouraging for plaintiffs, does provide helpful lessons of common pitfalls to avoid and should lead to greater success in the future.

Ben Barros

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