To protect sacred Native American Federal land from significant damage.

June 11, 2003

Mr. RAHALL (for himself, Mr. LARSEN of Washington, Mr. KILDEE, Mr. PALLONE, Mr. GEORGE MILLER of California, Mr. FILNER, Ms. LEE, Mr. FROST, Mr. ACEVEDO-VILA, Mr. MCNULTY, Mr. HOLT, Ms. MCCOLLUM, Mr. UDALL of New Mexico, Mr. HONDA, Mr. CARSON of Oklahoma, Mr. CASE, and Mr. GRIJALVA) introduced the following bill; which was referred to the Committee on Resources

To protect sacred Native American Federal land from significant damage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; DEFINITIONS.

(a) SHORT TITLE- This Act may be cited as the `Native American Sacred Lands Act'.

(b) DEFINITIONS- For the purposes of this Act, the following definitions shall apply:

(1) FEDERAL LAND- The term `Federal land' means any land or interests in land owned by the United States, including leasehold interests held by the United States, except Indian trust lands.

(2) INDIAN TRIBE- The term `Indian tribe' has the meaning given such term by section 4(e) of the Indian Self-Determination and Education Assistance Act.

(3) NATIVE HAWAIIAN ORGANIZATION- The term `Native Hawaiian organization' has the meaning given that term in section 301(18) of the National Historic Preservation Act (16 U.S.C. 470w(18)).

(4) NATIVE SCIENCE- The term `Native science'--

(A) means the oral knowledge of Native Americans gained throughout history by observation and experience;

(B) embodies traditional tribal lifestyles and values;

(C) is based on the fundamental belief of the sanctity of all life;

(D) is guided by principles that include interdependency, reciprocity, and the significance of place;

(E) is a living, spiritual knowledge of the relationships between the land, natural resources, and the environment; and

(F) is transferred from one generation to the next often through oral tradition and practice.

(5) SACRED LAND- The term `sacred land' means any geophysical or geographical area or feature which is sacred by virtue of its traditional cultural or religious significance or ceremonial use, or by virtue of a ceremonial or cultural requirement, including a religious requirement that a natural substance or product for use in Indian tribal or Native Hawaiian organization ceremonies be gathered from that particular location.

(6) UNDERTAKING- The term `undertaking' has the same meaning given that term in section 301(7) of the National Historic Preservation Act (16 U.S.C. 470w(7)).

(7) SIGNIFICANT DAMAGE- The term `significant damage' means any action or activity which results in the loss of the sacred meaning and value of the site to the affected Indian tribe or Native Hawaiian organization.

SEC. 2. PROTECTION OF SACRED LANDS.

Each department or agency of the United States with administrative jurisdiction over the management of Federal land shall--

(1) accommodate meaningful access to and ceremonial use of Indian sacred lands by Indian religious practitioners;

(2) avoid significant damage to Indian sacred lands; and

(3) consult with Indian tribes and Native Hawaiian organizations prior to taking significant actions or developing policies affecting Native American sacred lands.

SEC. 3. DESIGNATING INDIAN SACRED LANDS UNSUITABLE FOR DEVELOPMENT.

(a) IN GENERAL- Federal land shall be designated unsuitable for any or certain types of undertakings if the head of the department or agency with administrative jurisdiction over that Federal land decides, in accordance with this section, that by a preponderance of the evidence the undertaking is likely to cause significant damage to Indian sacred lands.

(b) PETITION-

(1) IN GENERAL- Any Indian tribe or Native Hawaiian organization shall have the right to petition any department or agency of the United States with administrative jurisdiction over Federal land to have Federal land under the jurisdiction of that department or agency designated as unsuitable for any or certain types of undertaking.

(2) SUPPORTING EVIDENCE- Such a petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations. Oral history and Native science shall be given no less weight than any other evidence. After an Indian tribe or Native Hawaiian organization has filed a petition under this section, and before the hearing as required by this subsection, any person may file allegations of facts, with supporting evidence, that are relevant to the petition.

(c) HEARING-

(1) IN GENERAL- Not later than 90 days after the receipt of such petition, the department or agency with administrative jurisdiction over that Federal land involved shall hold a public hearing on the subject of the petition in the locality of that Federal land after public notice, including publication of the date, time, and location of the hearing.

(2) WRITTEN DECISION- Not later than 60 days after a hearing held pursuant to this subsection, the head of the department or agency with administrative jurisdiction over that Federal land shall issue and furnish to the petitioner and any other parties to the hearing a written decision regarding the petition and the reasons for the decision.

(d) APPEAL- Not later than 60 days after a written decision is issued pursuant to subsection (c)(2), any petitioner or person filing under section 3(b)(2) may appeal the decision to the appropriate Federal agency appeals board or through a civil action in accordance with subsection (e). A decision regarding a petition shall not be considered final for the purposes of this section until--

(1) the deadline for filing an appeal to the decision has past and no appeal has been filed; or

(2) if an appeal was timely filed, the appeal has been heard and decided.

(e) CIVIL ACTIONS; JURISDICTION; RELIEF-

(1) IN GENERAL- The United States district courts shall have original jurisdiction over any civil action or claim against the Secretary of the Interior or the head of another Federal agency, as appropriate, arising under this section. In an action brought under this paragraph, the district courts may order appropriate relief, including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this Act, or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this Act or regulations promulgated hereunder.

(2) APPLICATION OF EQUAL ACCESS TO JUSTICE ACT- The Equal Access to Justice Act (Public Law 96-481; Act of October 1, 1980; 92 Stat. 2325; 5 U.S.C. 594; 28 U.S.C. 2412) shall apply to actions brought under this Act.

(f) EFFECT OF DECISION OF UNSUITABILITY-

(1) IN GENERAL- A final decision that Federal land identified by a petition considered pursuant to subsection (b) is unsuitable for any or certain types of undertakings shall be immediately effective and the undertaking shall be prohibited.

(2) WITHDRAWAL OF LANDS- Subject to valid and existing rights, the Secretary of the Interior shall (with the consent of the department or agency other than the Department of the Interior in the case of Federal land not under the administration of the Secretary of the Interior) withdraw Federal land included in a decision of unsuitability under this section pursuant to section 204 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1714). The Secretary's decision under this section shall constitute the documentation required to be provided under section 204(c)(12) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1714) and in compliance with section 4.

(3) LAND USE PLANS- Any decision of unsuitability made for Federal land under the administrative jurisdiction of the Secretary of the Interior or the Secretary of Agriculture (with respect to National Forest System lands) shall be incorporated into the appropriate land use plan when such plan is adopted, revised, or significantly amended pursuant to the Federal Land Policy and Management Act of 1976 or, as the case may be, the Forest and Rangeland Renewable Resources Planning Act of 1974.

SEC. 4. CONFIDENTIALITY.

(a) IN GENERAL- Notwithstanding section 5 of title 5, United States Code (commonly known as the Freedom of Information Act) or any other law, no information obtained as a result of or in connection with a petition filed or a hearing held under this Act that contains a reference pertaining to a specific detail of a Native American traditional cultural practice or religion, or the significance of an Indian or Native Hawaiian sacred land, or the location of that sacred land, shall be released except as provided in subsection (c).

(b) RELEASE OF INFORMATION-

(1) INITIAL VIOLATION- Any person who intentionally releases any information knowing that it is required to be held confidential pursuant to this section shall, upon conviction, be fined not more than $10,000, or imprisoned not more than 1 year, or both.

(2) SUBSEQUENT VIOLATIONS- In the case of a second or subsequent violation of this section, a person shall, upon conviction, be fined not more than $100,000, or imprisoned not more than 5 years, or both.

(c) EXCEPTION- This section shall not apply in any case in which all persons filing pursuant to section 3(b), including the petitioner, waive the application of this section.

SEC. 5. GRANTS.

(a) AUTHORITY TO PROVIDE GRANTS- The Secretary may provide grants to Indian tribes to assist the Indian tribes in carrying out activities related to this Act. Such activities may include the acquisition or management of sacred lands deemed unsuitable for undertaking under this Act.

(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section.

SEC. 6. TRANSFER OF LAND.

(a) AUTHORITY- The head of the department or agency with administrative jurisdiction over Federal land which is sacred land may take the Federal land into trust for the benefit of the Indian tribe or Indian tribes for which the land is considered sacred on the condition that the Indian tribe or Indian tribes for which it is taken into trust manage the land in perpetuity to protect that sacredness.

(b) REVERTER- If the head of the department or agency that has taken Federal land into trust under this section determines that the land is not being managed in perpetuity to protect its sacredness as required by subsection (a), the land shall be removed from trust and shall be managed under this Act by the the head of the department or agency that transferred land under subsection (a).

SEC. 7. COOPERATIVE AGREEMENTS.

The head of the department or agency with administrative jurisdiction over Federal land which is sacred land may enter into cooperative agreements with one or more Indian tribes for which the land is considered sacred to provide for the Indian tribe or Indian tribes to manage--

(1) that Federal land; and

(2) any adjacent Federal land, if including the adjacent Federal land would facilitate management of the sacred land by the Indian tribe or Indian tribes.

SEC. 8. REGULATIONS.

(a) CONSULTATION WITH INDIAN TRIBES- In developing regulations under this Act, the Secretary shall use--

(1) an effective process to permit elected tribal officials, traditional Native American practitioners, and other representatives of Indian tribal governments to provide meaningful and timely input in that development; and

(2) where appropriate, consensual mechanisms, including negotiated rulemaking.

(b) EFFECTIVE DATE- This Act shall become effective on the date of the enactment of this Act. Any failure of the Secretary to promulgate regulations under this section shall not affect such effective date.

SEC. 9. CONSULTATION UNDER OTHER LAWS.

Nothing in this Act shall affect any consultation process under the National Historic Preservation Act or any other Federal law.

END