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


  • Sarah A. Husk


As renewable energy development, and particularly wind energy development, ascends toprominence in the United States’ national energy agenda, significant attention has been paid todeveloping these resources on and adjacent to lands currently or ancestrally occupied by NativeAmerican Indian tribes. While many tribes have demonstrated eagerness to develop renewableenergy resources, including in partnership with private developers, conflict has emerged wheretribes have not been adequately consulted under mandatory review procedures such as thoseprovided for under the National Historic Preservation Act (NHPA). This Article argues that tribalcommunication and consultation requirements and procedures must be defined with greater clarityand specificity in order to adequately protect tribes’ most sacred resources in the face of surginginterest in renewable energy development on tribal lands, particularly given the legacy of colonialistexploitation perpetrated against Indigenous peoples and lands. Accordingly, this Article proposes torevise key provisions of the regulatory guidance at 36 C.F.R. § 800 to better promote meaningfultribal consultation and facilitate greater alignment between the legal frameworks that provideprotections for historic sites under the NHPA and the Indigenous knowledge systems that givemeaning to the resources that the law seeks to protect.