The Historic and Present Government Failure to Protect Native American Graves
The Native Americans Grave Protection and Repatriation Act (“NAGPRA”) was enacted in 1990 to “provide for the protection of Native American graves, and for other purposes.” It states that the ownership of cultural items, including human remains, “excavated or discovered on Federal or tribal lands after the date of enactment” to either the Indian tribe where lineage can be ascertained, the tribe whose tribal lands the find was made, or the tribe that can be historically linked to the area that the find was made. NAGPRA goes into more detail on what items count and how to tell which Indian tribe has priority, discusses what to do with unclaimed cultural finds, and also dictates how to get permission excavating these finds and what to do if the discovery is accidental. The National Historic Preservation Act (“NHPA”) was enacted in 1966. It calls for federal agencies to consider the effects any planned activities may have on property that contains historic significance—a class that includes cultural items of significance to Indian tribes, such as human remains. NHPA also requires that agencies consult with Indian tribes that attach religious or cultural significance to property if a Federal or federally assisted project takes place on said property. On November 6, 2009, President Barack Obama signed Executive Order 13175 (“E.O. 13175”) which proscribed that “executive departments and agencies . . . are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.”
NAPGRA, NHPA, and E.O. 13175, taken together, should have been an important tool for the Standing Rock Sioux Tribe’s fight against the Army Corp of Engineer’s permission to construct the Dakota Access pipeline. However, on September 9, 2016, a federal judge denied Standing Rock’s motion for an injunction, a legal move made by the tribe over concern of the potential destruction of their ancestral lands which had been identified as sacred tribal burial grounds. While construction was halted in much of the contested territory, a small section of land containing the burial site was still in contention. In making this decision, the judge discussed the historic background of several pieces of law including NHPA, but not NAGPRA or E.O. 13175. Standing Rock argued that the Army Corp of Engineers had not engaged in tribal consultations required by NHPA, but the District Court for the District of Columbia refuted that argument for the specific area of land containing the burial site, stating “the Corps has likely complied with the NHPA and . . . the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.” This decision was largely influenced by the fact that the land containing the burial site "was not under the jurisdiction of the U.S. Army Corp" and therefore did not fall under the category of land susceptible to federal agency action in order to trigger NHPA protections. However, the Justice Department swiftly released its own statement calling a halt on the pipeline’s construction, contradicting the sentiment of the D.C. district court.
The district court’s decision most likely did not take the full picture into account when making its decision, which is shown by its disregard of legislative and executive materials like NAGPRA and E.O. 13175 which, while maybe not exactly on point for the issue at hand, shows the government has an interest in protecting Indian cultural materials and engaging in meaningful conversation in collaboration so as to best respect the culture and history of these tribes which have largely suffered from our government’s machinations in the past. This sentiment was expressed in an open letter signed by over 1,500 archaeologists, museum directors, historians, anthropologists, and other professionals with an interest and expertise in culture and history. While the Justice Department rightly acted in time to put a halt to things, the fact that the injunction was denied shows that Native American graves are still at risk, especially if they are discovered by private companies on land which is considered neither tribal or federal (See: If Native American remains are discovered during a construction project, does NAGPRA apply?).
The process for excavating, exhuming, or constructing on the site of other historic or ”legitimate” cemeteries usually has more protections in order to avoid disturbing the “quiet” of the dead. It is an egregious oversight of law that has allowed and still allows Indian human remains to be disturbed and/or destroyed without any input on the people who, according to their culture, have the appropriate Right of Sepulcher and arguably a Right of Interment, due to their historic claim to the land and a common law presumption that the tribe itself is the closest kin. The issue is that lands considered culturally significant to tribes do not fall under the letter definition of "tribal land" or "federal land," largely due to the negligent wording of the historic treaties which parted the tribes from their land; the boundaries in these treaties do not match what tribes consider tribal land. The law needs to catch up to this simple and ancient gaffe in order to adequately protect the rights of these tribes and their deceased.