"Recent tribal challenges to development projects have highlighted the need for developers to be vigilant about the role that Indian law can play in their projects. In Arizona, six tribes representing twenty-two Indian Nations have banded together to challenge federally approved snowmaking activities at a ski resort on the highest of the San Francisco Peaks, while in the Dakotas, members of the United Sioux Tribes of South Dakota have objected to the location and development of the TransCanada Keystone Oil Pipeline because it will cross over corridors once used by their ancestors.
Notably, neither the Snowbowl Ski Resort nor the path of the TransCanada pipeline are on tribal lands. Yet the tribes have found footing to challenge these projects because of the religious and/or cultural significance afforded to the respective lands by the tribes that, the tribes argue, must be respected under the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq ("RFRA") and the National Historic Preservation Act of 1966, as amended through 1992, 14 U.S.C. §§ 470 et seq ("NHPA"). For the time being, at least one court agrees.
The RFRA and Section 106 of the NHPA require consultation with Native American Tribes whenever projects for which federal approval is required may have an effect on archaeological and/or traditional cultural properties of historical or religious value to tribes. The RFRA prohibits the federal government from imposing a "substantial burden" on a person's exercise of religion, even if its acts are not specifically directed at the person or a religious group, unless the is furthering a "compelling interest" in the most practical way possible that has the least impact on the person's exercise of religion. 42 U.S.C. § 2000bb-1. NHPA Section 106 requires federal agencies to consider the effects of projects on archaeological sites, historical sites and locations that are significant because of the role the property plays in a community's historically rooted beliefs, customs and practices."
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Nancy Appleby and Laura Fellow: Indian Law Can Be Implicated Even For Projects On Non-Tribal Land