Indian Art Law Presentation

Indian Art: Protection of Tribal Cultural Resources

Connie Sue [email protected]


• Authority– Federal Law

• The obvious ones• The not-so-obvious ones

– State Law• The obvious ones• The not-so-obvious ones

Federal Authority (the obvious ones)

• Indian Arts & Crafts Act

• National Historic Preservation Act (HPA)

• Archaeological Resources Protection Act (ARPA)

• Native American Graves Protection and Repatriation Act (NAGPRA)

• Executive Order 13007, Indian Sacred Sites (5/34/1996)

Federal Authority (the not-so-obvious ones)

• Religious Freedom Restoration Act (RFRA)

• National Environmental Policy Act (NEPA)

• Federal Power Act of 1935 (FPA)

• Federal Trust Responsibility

Indian Arts and Crafts Act

• A truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States.

• Intended as a consumer protection act, but also protects the artist or the tribe in the same way that copy write and other intellectual property right laws do


• “Indian” is defined as a member of any federally or State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe.

• Covers all Indian and Indian-style traditional and contemporary arts and crafts produced after 1935.


• Illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian Tribe or Indian arts and crafts organization, resident within the United States.


• For a first time violation of the Act, an individual can face civil or criminal penalties up to a $250,000 fine or a 5-year prison term, or both.

• If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000.

Violations of the Indian Arts and Crafts Act

• Until 1990, the only sanction for violating the false-advertising provision was criminal; had been no prosecutions.

• In 1990, Congress authorized government and private civil suits, in which hefty damages can be awarded.

• First appellate opinion: 2005!

National Historic Preservation Act

• § 106 of NHPA requires federal agencies to assess effects of permitting decisions on historic properties

• § 101(d) of NHPA specifically provides that properties of traditional religious and cultural importance to Tribes may be eligible for inclusion on National Register


• Consultation required when a federal agency action may affect historic properties (1) located on tribal lands, or (2) to which any Indian tribe or Native Hawaiian organization attaches religious or cultural significance, regardless of the property’s location.


• When an undertaking occurs on tribal land, the federal agency must notify appropriate Indian tribes of the undertaking and give those tribal groups the opportunity to consult.


• If a tribe has assumed State Historic Preservation Officer (SHPO) responsibilities for tribal lands by designating a Tribal Historic Preservation Officer (THPO), federal agency must consult with the THPO rather than SHPO regarding projects on or affecting historic properties on tribal lands.


• If a tribe does not have a THPO, agency must consult with official representatives of the tribe as well as with the SHPO


• Frequently, historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands that are not on (and may be far removed from) lands currently held by a tribe


• Practical complication: What if the tribe has determined that the best way to protect its cultural resources or traditional practices is not to disclose them, or not to acknowledge them when they are discovered or identified? What do you, as the tribe’s attorney, do then?


• General principles for federal agencies in Section 106 tribal consultation include:– Tribes must have a reasonable opportunity to

• Identify concerns about historic properties, • Advise on the identification and evaluation of

historic properties, • Articulate views on the undertaking’s effects on

such properties, and • Participate in the resolution of adverse effects.


• Federal agency’s duty to make a reasonable and good faith effort to identify tribes that shall be consulted in the Section 106 process.

• Consultation should be conducted in a manner recognizing the unique government-to-government relationship that exists between the government and tribes

Archaeological Resources Protection Act

• Protects any historic or prehistoric ruin or monument, or any object of antiquity on land owned or controlled by the federal government (federal or tribal land)

• Civil and criminal penalties• Felony and misdemeanor• In rem forfeitures of equipment used in the

offense; regardless of criminal prosecution


• Prohibited Conduct:– Excavation, removal, damage, alteration or

defacement, or the attempted excavation, removal, damage, alteration or defacement

– of archaeological resources– located on public lands or Indian lands– without a permit (permits limited to to

museums, universities, colleges, scientific or educational institutions)


• Prohibited conduct:– Sale, purchase, exchange, transport,

receipt, or offer to sell, purchase, or exchange . . .

– any archaeological resource, if such resource was excavated or removed from public lands or Indian lands in violation of

• ARPA or any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.


• Prohibited Conduct:– Sale, purchase, exchange, transport,

receipt, or offer to sell, purchase, or exchange

– in interstate or foreign commerce – any archaeological resource excavated,

removed, sold, purchased, exchanged, transported, or received

– in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law

Native American Graves Protection and Repatriation Act (NAGPRA)

• Protects Indian cultural items, including remains, excavated or discovered on federal or tribal lands.

• Provides a process for museums and Federal agencies to return human remains, funerary objects, sacred objects, or objects of cultural patrimony – to tribes.

NAGPRA: Uncovering Remains

• Process for acting after the inadvertent discovery of human remains and affiliated cultural items– On tribal lands– On federal lands

• Does not apply to the inadvertent discovery of remains and cultural items on state or private land, but state or local law may


• Covers – Human remains– Associated funerary objects– Unassociated funerary objects– Sacred objects– Objects of cultural patrimony


• On tribal lands:– Immediately notify the responsible tribal

official– Stop work– Make reasonable efforts to protect the

remains and cultural items– Tribal official may either certify receipt and

take no further action, or take immediate steps to further secure and protect


• On tribal lands:– Tribe may decide to secure the site of

discovery, remains and other cultural items left in place

– Tribe may consent to excavation of remains and cultural items, must follow requirements of Archaeological Resources Protection Act and implementing regulations


• On federal lands:– Immediately notify the responsible federal

official– Cease activity– Protect the remains and cultural items– Federal official: Initiation of consultation

• Notify tribe• Engage in consultation• Disposition


• Consultation: – Notice to known lineal descendants

• Who are/likely to be culturally affiliated• On whose aboriginal lands remains were

discovered• Who are reasonably known to have a cultural

relationship with the remains

– Determine who is entitled to custody– Prepare written plan of action


• Written Plan of Action must document kinds of objects to be considered cultural items; planned treatment, care and handling (including traditional); and planned archaeological recording

• Must include specific information used to determine custody

• Must describe planned disposition


• Disposition: – Remains and cultural items may be left in

place; site of discovery is secured and disposition process does not continue; or

– Remains excavated or removed (ARPA)– Disposition options:

• Tribe takes physical custody• Remains are reburied on federal land• Tribe expressly relinquishes control

NAGPRA: Collections

• All Federal agencies are subject to NAGPRA.

• All public and private museums that have received Federal funds, other than the Smithsonian Institution

• The Smithsonian Institution is governed by the National Museum of the American Indian Act of 1989, 20 U.S.C. 80q.

NAGPRA: Collections

• The principle steps of the NAGPRA repatriation process include –– Identify, prepare inventories and summaries

of the items. – Consultation– Notices – Publish in the Federal Register.

NAGPRA: Collections

• Federal agencies and museums must identify cultural items in their collections that are subject to NAGPRA, and prepare inventories and summaries of the items.

• Law passed in 1990, some agencies and museums still have not prepared inventories

NAGPRA: Collections

• Federal agencies and museums must consult with lineal descendants, Indian tribes, and Native Hawaiian organizations regarding the identification and cultural affiliation of the cultural items listed in their NAGPRA inventories and

summaries.

NAGPRA: Collections

• Federal agencies and museums must send notices to lineal descendants, Indian tribes, and Native Hawaiian organizations describing cultural items and lineal descendancy or cultural affiliation, and stating that the cultural items may be repatriated.

• Secretary of Interior publishes notices in Federal Register

NAGPRA: Collections

• Tribe(s) respond to notices by requesting repatriation or disposition of remains

• Museum or federal agency files notice of intent to repatriate

• Remains and cultural items are returned to the tribe, disposed of according to tribal custom

NAGPRA: Collections

• Disagreements may be resolved through administrative process by submitting to Native American Graves Protection and Repatriation Review Committee

• Committee hears disputes on factual matters to resolve repatriation issues between tribes, museums and Federal agencies.

NAGPRA: Collections

• Committee also monitors and reviews the implementation of the inventory and identification process and repatriation activities.

• Requests information on compliance and they makes annual reports to Congress.

NAGPRA: Collections

• Typical disputes under NAGPRA:– Failure to complete inventory– Incomplete or inaccurate inventory– Problems with identification of lineal

descendants– Disputes re: “funerary objects”– Intra-tribal disputes over remains– Treatment of remains– Delay in repatriation

NAGPRA: Collections

• Practical complication: What if a tribe’s spiritual practices forbid handling of the remains of ancestors, or the objects buried with them? Or, what about prohibitions against burying enemies in sacred ground – what do you do with remains that might, or might not, be an enemy?

NAGPRA: Collections

• Identified in Federal Register Notices (as of November 2006)– Human remains: 31,995 individuals– Associated funerary objects: 669,554– Unassociated funerary objects: 118,227– Sacred objects: 3,584– Objects of cultural patrimony: 281– Objects that are both sacred and

patrimonial: 764

NAGPRA in the News

http://www.msplinks.com/MDFodHRwOi8vcGhvdG9idWNrZXQuY29t

NAGPRA in the News

• Kennewick Man– Skeletal remains of a prehistoric man found

on a bank of the Columbia River near Kennewick, Washington, USA on July 28, 1996.

– Discovered on Corps of Engineers land by two men watching hydroplane races.

– Five tribes claimed the remains under NAGPRA (Nez Perce, Umatilla, Yakama, Wannapum, and Colville)

NAGPRA in the News

• Kennewick Man– Eight anthropologists sued the United States

for the right to conduct tests on the skeleton. – District court allowed, Corps and tribes

appealed– Ninth Circuit ruled that a cultural link

between the tribes and the skeleton was not met, allowing scientific study of the remains to continue.

NAGPRA in the News

• Tse-whit-zen– Washington state Department of

Transportation uncovered Tse-whit-zen in August 2003, while building a dry dock on the Port Angeles waterfront.

– After spending about $60 million — and finding 335 intact skeletons — the state abandoned the project.

NAGPRA in the News

• Tse-whit-zen– the largest Indian village ever discovered in

Washington– more than 10,000 artifacts found at the

ancient Klallam settlement

NAGPRA in the News

• Tse-whit-zen– No other Washington site has yielded so rich

an assemblage of artifacts from such a long period of time

– Thousands of stone and bone tools, hearths, structures and houses document at least 2,700 years of continuous use of the village

NAGPRA in the News

• Tse-whit-zen– In approving site for project, DOT’s

archaeologist concluded that finding archaeological deposits or human remains was "unlikely."

– Not a single cultural-resources expert was on the team reviewing the permits and construction sites for the project.

– No tribal elders were consulted

NAGPRA in the News

• Tse-whit-zen– Lower Elwah Tribe sued in August, 2005– Settlement agreement transfers ownership

or control of 17 acres of historic Klallam lands from the state to the tribe

– provides the tribe $5.5 million for the reburial of remains and materials and for site restoration (including the original $3 million).

NAGPRA in the News

• Tse-whit-zen– The state will provide an additional $7.5

million to both the City of Port Angeles and the Port of Port Angeles for capital investment in economic development initiatives.

– Reburial of the 335 sets of remains at the site has recently begun

Executive Order 13007, Indian Sacred Sites (5/34/1996)

• In managing Federal lands, each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.

Religious Freedom Restoration Act (RFRA)

• Federal government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the application of the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.


• “Exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” and specifically includes the “use, building, or conversion of real property.”


• Arizona Snowbowl Case– Tribes asserted claim under RFRA to

prevent Forest Service from allowing expansion of ski resort where proposed operations would use reclaimed water for snow making on San Francisco Peaks

– Prevailed at district court, on appeal the 9th Circuit reversed


• Ft. Sill Case – Oklahoma federal district court granted a

preliminary injunction against construction by the federal government of a Training Support Center at Fort Sill, Oklahoma.

– Proposed construction was near Medicine Bluffs, a site of religious significance to members of the Comanche tribe. The court held that plaintiffs had demonstrated a substantial likelihood of success on their claim under the Religious Freedom and Restoration Act.


• Ft. Sill Case – Court concluded that "the record is utterly devoid ...

of facts tending to demonstrate that the construction of the TSC in its current location is the least restrictive means of furthering the compelling governmental interest."

– Court also concluded that plaintiffs had shown a substantial likelihood of success on their claim under the National Historic Preservation Act.

National Environmental Policy Act

• Requires an Environmental Impact Statement (EIS) for major federal actions that significantly affect the quality of the human environment

• Subject to judicial review under the administrative procedure act

• BUT does not require a federal action to be environmentally or culturally friendly


• “Human environment” means the natural and physical environment and the relationship of people with that environment. 40 C.F.R. 1508.14.

• A thorough environmental analysis under NEPA should systematically address the social and cultural aspects of the environment.


• In considering whether an action may "significantly affect the quality of the human environment," an agency must consider, among other things:– Unique characteristics of the geographic

area such as proximity to historic or cultural resources


• In considering whether an action may "significantly affect the quality of the human environment," an agency must consider, among other things:– Degree to which the action may adversely

affect districts, sites, highways, structures, or objects listed in, or eligible for listing in the National Register of Historic Places


• NEPA regulations also require that to the fullest extent possible, agencies shall prepare draft EISs concurrently with and integrated with environmental impact analyses and related surveys and studies required by the National Historic Preservation Act

Federal Power Act of 1935

• Centralized the planning and regulation of hydroelectric power in single agency (now known as Federal Energy Regulatory Commission, or FERC)

• Amended in 1986 to require same consideration in licensing to protection of fish and wildlife, preservation of aspects of environmental quality as to power

Federal Power Act

• National Historic Preservation Act requires FERC to assess the effects of relicensing decision on historic properties

• FERC must consider impact of license on religious and cultural uses in determining whether proposal is best adapted for beneficial public uses of river In re Northern Lights, Inc., 39 FERC ¶ 61,352

Federal Trust Responsibility

• Executive owes duties to– Act with care and loyalty– Make trust property income productive– Enforce reasonable claims on behalf of

Indians– Take affirmative actions to preserve trust

property


• Trust Responsibility Doctrine imposes fiduciary standards on the conduct of the Executive

• Executive’s duty is carried out through executive agencies such as DOI and its bureaus


• Requires only compliance with generally applicable statutes and regulations. Gros Ventre Tribe v. BLM, (9th Cir. 11/13/06)

State Authority for Tribal Cultural and Historic Resource Protection

• The obvious ones. . . – State Historic Preservation Act– Indian Graves and Records Act

• The not-so-obvious ones:– State Environmental Policy Act (SEPA)– Growth Management Act (GMA)– Shoreline Management Act (SMA)

State Historic Preservation Act

• State goal to protect, rehabilitate, restore, and reconstruct sites, buildings, structures and objects significant in American and Washington state history, archeology or culture

Indian Graves and Records Act

• Class C felony to knowingly remove, mutilate, deface, injure or destroy any Indian cairn or grave, or any glyptic or painted record of any tribe or peoples is guilty of a class C felony

• Tribe or member may bring civil claim for injunctive relief or damages

State Environmental Policy Act (SEPA)

• Ensures that environmental values are considered by state and local permitting agencies when making decisions

• Permit may be conditioned or denied in order to preserve important historic and cultural resources

Growth Management Act

• State planning goals include the identification and the encouragement of the preservation of lands, sites and structures that have historical or archeological significance

Shoreline Management Act

• Requires Shoreline Master Programs to include:– Element for the preservation of natural

resources including but not limited to scenic vistas and aesthetics

– Element for preservation of buildings, sites and areas with historic or cultural values

A note about Tribal Codes

• Tribes may have their own set of ordinances to protect cultural resources, or natural resources with cultural significance

• Tribal regulatory authority MAY extend to non-Indians within the exterior boundaries of the reservation


Questions?

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Indian Art Law Presentation