Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

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)

I. 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.

II. 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.