Scattered to the Winds?: Strengthening the National Historic Preservation Act’s Tribal Consultation Mandate to Protect Native American Sacred Sites in the Renewable Energy Development Era

Abstract

As renewable energy development, and particularly wind energy development, ascends to
prominence in the United States’ national energy agenda, significant attention has been paid to
developing these resources on and adjacent to lands currently or ancestrally occupied by Native
American Indian tribes. While many tribes have demonstrated eagerness to develop renewable
energy resources, including in partnership with private developers, conflict has emerged where
tribes have not been adequately consulted under mandatory review procedures such as those
provided for under the National Historic Preservation Act (NHPA). This Article argues that tribal
communication and consultation requirements and procedures must be defined with greater clarity
and specificity in order to adequately protect tribes’ most sacred resources in the face of surging
interest in renewable energy development on tribal lands, particularly given the legacy of colonialist
exploitation perpetrated against Indigenous peoples and lands. Accordingly, this Article proposes to
revise key provisions of the regulatory guidance at 36 C.F.R. § 800 to better promote meaningful
tribal consultation and facilitate greater alignment between the legal frameworks that provide
protections for historic sites under the NHPA and the Indigenous knowledge systems that give
meaning to the resources that the law seeks to protect.