Effective today, January 12, new regulations take effect under the Native American Graves Protection and Repatriation Act (NAGPRA). A more comprehensive analysis with accompanying guidance from NATHPO is forthcoming, but below is a note regarding a specific provision of the new regulations that directly applied to THPOs and takes immediate effect.

Subsection B which focuses on discoveries, excavations, and disposition of Native American human remains and cultural items on Tribal lands, including all within the exterior boundary of a reservation, now requires Tribes to:

• Designate one or more appropriate Tribal officials to carry out the duties under this subpart (43 CFR 10.4 (a)).
• Ensure that any permit, license, lease, right-of-way, or other authorization issued for an activity on Tribal lands, including all lands within the exterior boundary of a reservation, includes a requirement to report any discovery of Native American human remains or cultural items to the Tribe (43 CFR 10.4).
• Respond within three days of receiving written documentation of a discovery of Native American human remains or cultural items on Tribal lands (43 CFR 10.5 (c)).
• Make a reasonable effort to secure and protect discovered human remains and cultural items, verify any activity around the discovery has stopped, and notify the Bureau of Indian Affairs or other Federal agency with primary management authority (43 CFR 10.5 (c)).
• Provide a written authorization prior to any excavation of Native American human remains or cultural items on Tribal lands, including all lands within the exterior boundary of a reservation (43 CFR 10.6)).
• Ensure that any permit for excavation issued by another jurisdiction for the excavation or removal of Native American human remains or cultural items on any lands within the exterior boundary of the reservation is equivalent to the provisions of the Archaeological Resources Protection Act (43 CFR 10.6).
• As soon as possible, but no later than one year after discovery or excavation, determine the lineal descendant or Indian Tribe with priority for disposition of any Native American human remains or cultural items that are discovered or excavated from Tribal land (43 CFR 10.7 (b)).
• Complete and retain a written disposition statement (43 CFR 10.7 (b)(1)).

Some of these activities were recommended in the former regulations but are now required. Others are new requirements.

Of particular note are activities related to permitting, discoveries, and excavations on state and private lands within the exterior boundary of the reservation. In the preamble to the regulations, the Department acknowledges that the plain language of the definition of "tribal lands" includes private lands within the exterior boundary of the reservation consistent with the McGirt v. Oklahoma, 140 S. Ct. 659 (2019) as well as Tribal Trust land outside the exterior boundary of a formal reservation consistent with the Oklahoma Tax Comm'n v. Citizens Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991)).

NATHPO has been outspoken throughout regulatory process of the costs to Tribes associated with these activities but has been largely ignored by the Department. Our comments to the Office of Information and Regulatory Affairs at OMB regarding anticipated costs associated with these regulations is attached. The regulations do provide a mechanism for Tribes to delegate these responsibilities, in whole or in part, to the Bureau of Indian Affairs. We recommend that such delegations be sent to the Bureau of Indian Affairs Director Darryl LaCounte [202-208-5116/darryl.lacounte@bia.gov] and Federal Preservation Officer Tamara Billie [505-563-3013/tamara.billie@bia.gov]

Valerie J. Grussing, PhD
NATHPO Executive Director
valerie@nathpo.org | 202-628-8476