Cultural resource preservation law: the enhanced focus on American Indians.

• Author: Wright, Lauryne

To us the ashes of our ancestors are sacred and their resting place is hallowed ground. Our religion is the tradition of our ancestors--the dreams of our old men, given them in the solemn hours of night by the Great Spirit," and the visions of our sachems; and is written in the hearts of our people.

Seathl, Duwamish chief (1)

1. INTRODUCTION

   In 1831 the United States Supreme Court first characterized the relationship of Indian tribes to the United States as being like that of a ward to a guardian, making the federal government a trustee. (2) Today, the concept of "trust" with respect to American Indians is more aptly defined as a responsibility of federal agencies to foster trust among Indian tribes through a government-to-government relationship that reflects respect for their sovereign status.

   That evolution in the concept of trust has occurred over the past 30 years, as cultural resource preservation laws have gradually adopted an enhanced focus on American Indians, or Native Americans. (3) These laws have progressed from fostering scientific information gathering through protection of archaeological research and preservation of ancient cultures to recognition of American Indian cultural rights.

   American Indian cultural rights protected today include control over the disposition of human remains of lineal descendants, the return or repatriation of objects of cultural patrimony, (4) religious freedom and the practice of sacred rituals, access to sacred sites on federal property, and consultation with federal agencies regarding preservation and protection of cultural resources. (5) Additionally, the concept of American Indian tribes as sovereign nations is formally recognized through executive orders and official policy requiring that the Department of Defense (DoD) and its military services conduct affairs with American Indian tribes on a government-to-government basis.

2. FROM THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT (ARPA) TO THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)

   My people, before the white man came you were happy. You had many buffalo to eat and tall grass for your ponies--you could come and go like the wind. When it grew cold you could journey to the valleys of the south, where healing springs are; and when it grew warm, you could return to the mountains of the north. The white man ... dug up the bones of our mother, the Earth. He tore her bosom with steel. He built big trails and put iron horses on them. Wovoka, Paiute (6) A. The Archaeological Resources Protection Act

   1. Predecessor Provisions

      In the nineteenth century, American Indian personal property, including remains of their deceased, was routinely collected by the federal government, ending up in federal collections, public museums such as the Smithsonian Institution, and even personal collections. In the twentieth century, passage of the Antiquities Act of 1906 (7) set up a permitting requirement (enforceable through criminal sanction) for excavation on federal lands. This was to enable the government to control the data recovery of archaeologists. The Act protected any historic or prehistoric ruin or monument, or any object of antiquity situated on land owned or controlled by the federal government, to include American Indian lands. Although the Act protected antiquities, it did not protect cultural rights. It neither recognized tribal laws nor tribal jurisdiction over Indian lands. (8)

      In 1974, the Ninth Circuit Court of Appeals declared the Antiquities Act unconstitutionally vague for failing to define the term "object of antiquity." (9) Overall, the Antiquities Act is still used for the regulatory purpose of declaring national monument land, (10) but the Archaeological Resources Protection Act has essentially superceded its permitting and prosecution sections.

   2. Passage of the Archaeological Resources Protection Act

      In 1979, passage of the Archaeological Resources Protection Act (ARPA) (11) strengthened federal control over "archaeological resources found on non-Indian federal lands. (12) Like the Antiquities Act before it, ARPA prohibits unauthorized excavation, requiring private persons to obtain permits to excavate on federal lands. (13 Additionally, Indian tribes14 must be notified 30 days prior to issuance of a permit if excavation may result in harm to a tribal, religious, or cultural site. (15) Indian tribes are not required to obtain ARPA permits to remove resources from their own reservations, and a tribe may issue permits to its own members, (16) Archaeological resources on Indian lands belong to Indian tribes. (17)

      ARPA was devised by scientists to preserve and protect archaeological sites, to include American Indian sites. No American Indians, however, were involved in its drafting. In addition to prohibiting actual or attempted excavation, removal, alteration, damage or defacement of archaeological resources without a permit, ARPA provides for criminal (18) and civil penalties for selling, purchasing, exchanging, transporting, receiving, or offering to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated or removed from federal or Indian land. (19) Moreover, ARPA requires the federal government to keep the location of archaeological sites confidential if disclosure would create a risk of harm to the site. (20) Therefore, information regarding the location of ARPA sites on federal land is not subject to Freedom of Information Act requests. (21) Tribal notification is not considered to be a public disclosure.

      Military installations encompassing archaeological sites must strive to balance the right of public access with preservation and protection responsibilities, including Indian tribe requests for non-disclosure of site locations for religious or cultural reasons. (22)

      2. The Native American Graves Protection and Repatriation Act

      It was not until 1990, with passage of the Native American Graves Protection and Repatriation Act (NAGPRA), (23) that the American Indian community was united with the scientific community in balancing science with cultural rights. Congressman Morris Udall said it was the greatest piece of legislation he had ever been associated with, advancing a civil rights standard that hadn't been seen since the mid-1960s. (24)

      NAGPRA acknowledges a government-to-government relationship between the United States and Indian tribes. (25) It requires all federal agencies, with the exception of the Smithsonian Institution, (26) to consult with lineal descendants, Indian tribes, (27) and Native Hawaiian (28) organizations prior to intentional excavations and immediately following inadvertent discoveries of cultural items on federal or tribal lands. (29) It also requires federal agencies and museums that receive federal funds to inventory and, if requested, to repatriate (30) Native American cultural items to lineal descendants or culturally affiliated Indian tribes and Native Hawaiian organizations. (31) Cultural items under NAGPRA include human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony. (32)

   1. Consultation Requirement

      With respect to planned excavations on federal lands, NAGPRA requires federal land managers to engage in prior consultation with potentially affected lineal descendants, Indian tribes, and Native Hawaiian organizations. (33) Consultation, in addition to immediate notification, must also take place with appropriate Indian tribes upon inadvertent discovery of cultural items on federal lands. (34)

      Federal agency responsibility with respect to inadvertent discoveries includes an initial cessation of activity for 30 days, reasonable efforts to protect the discovered items, and immediate oral notification to culturally affiliated Indian tribes, followed by written confirmation. (35) It is at this point that consultation with Indian tribes takes place.

      The purpose of such consultation is to positively identify and confirm that what has been discovered is in fact a cultural item subject to disposition under NAGPRA. Once such confirmation is achieved, Indian tribes direct how, within the parameters of NAGPRA, the items are to be (36) Protected or repatriated. Upon certification from an appropriate authority that tribal notification has been accomplished, the federal activity leading to the inadvertent discovery may be resumed, and disposition of cultural items will be carried out pursuant to NAGPRA repatriation procedures. (37) Federal agencies cannot delegate these responsibilities under NAGPRA, except to the Secretary of the Interior upon his/her consent. (38)

      NAGPRA expressly provides that, "[t]his Act reflects the unique relationship between the Federal Government and Indian tribes and Native Hawaiian organizations and should not be construed to establish a precedent with respect to any other individual, organization or foreign government." (39) The notion, however, that NAGPRA has established a trust or fiduciary relationship between the government and American Indians has been rejected. The U.S. District Court for the District of Hawaii has held the preceding statutory language to be a "disclaimer intended to ward off tangential repatriation claims from groups other than Native Americans or Native Hawaiians rather than as establishing a fiduciary obligation on the federal government." (40)

      1. NAGPRA Jurisdictional Area--Federal or Indian Lands

         As indicated above, NAGPRA's reach is limited to cultural items found on federal or Indian land. In Romero v. Becken, (41) for example, human remains were inadvertently found during construction of a golf course in Universal City, Texas. The plaintiff claimed to be a lineal descendant of the Lipan Apache (42) chief Cuelgas de Castro. Ultimately, the Court held that the remains were found on municipal land. (43)

         Universal City had acquired the land through gifts of private landowners and, pursuant to the Clean...