Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

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)

B. 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)