Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

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)

a. 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 Water Act, was required to conduct an archaeological survey of the project site prior to building the golf course. Consequently, the Army Corps of Engineers (Army Corps) began oversight of the project. (44) The Court held that, "The fact that the U.S. Army Corps of Engineers, a federal agency, was involved in a supervisory role with the Texas Antiquities Commission does not convert the land into 'federal land' within the meaning of the statute." (45)

b. Distinguishing 30-day Cessation Period from Period for Reasonable Protection Efforts

Although NAGPRA requires a 30-day cessation of activity upon the inadvertent discovery of cultural items on federal or Indian lands, efforts at protecting the items may be required to extend beyond the 30-day period. In Yankton Sioux Tribe v. United States Army Corps of Engineers, (46) the plaintiff tribe alleged the Army Corps failed to satisfy its duty to secure and protect inadvertently discovered human remains embedded in frozen lakeshore soil. The Army Corps filed a motion to dismiss, arguing that it had satisfied NAGPRA's notification, tribal certification, and 30-day cessation of activity requirements, and that it took reasonable efforts to protect the accessible remains by removing those that were "loose and scattered" before resuming activity. (47) Further, the Army Corps asserted the Court lacked authority to address long-term protection of remains that might be exposed in the future. (48)

The Court denied the Army Corps' motion to dismiss, finding that neither NAGPRA nor its implementing regulations (49) relieved the Army Corps of its duty to secure and protect inadvertently discovered human remains upon the lapse of the 30-day cessation-of-activity period. (50) The Court determined that NAGPRA regulations do not specify a time period within which a federal agency is relieved of the duty to secure and protect inadvertently discovered human remains. (51) The Yankton Sioux Tribe went on to obtain an injunction against the Army Corps, requiring it to cease all construction in that area, and prohibiting it from denying tribal member access to the area. (52)