On July 5, 2011, the Department of the Interior issued an interim final rule revising the regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA) by changing the definition of the term “Indian tribe.” 76 Fed. Reg. 39007 (July 5, 2011). A copy of the FEDERAL REGISTER notice is attached; it is also available at www.gpo.gov/fdsys/pkg/FR-2011-07-05/pdf/2011-16788.pdf. While this rule became effective upon publication, comments will be accepted until September 5, 2011.
The reason for issuing this rule is that the NAGPRA regulations had previously used the definition of “Indian tribe” in the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. § 450b(e), instead of the definition in the statutory language of NAGPRA, 25 U.S.C. § 3001(7). The difference between these two definitions is that the ISDEAA definition includes regional and village corporations “as defined in or established pursuant to the Alaska Native Claims Settlement Act” (ANCSA), while the NAGPRA definition does not include such corporations. The interim final rule resolves this discrepancy by deleting the definition of “Indian tribe” from the NAGPRA regulations. The legal effect of this change is that only the statutory definition will be used in implementing NAGPRA. This issue was raised in a report issued last year by the Government Accountability Office (GAO), Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act (GAO-10-768, July 2010), available at www.gao.gov/new.items/d10768.pdf. In response to a recommendation from GAO, the Solicitor’s Office in the Department of the Interior analyzed the issue and concluded that the legislative history of NAGPRA demonstrated that it was the intent of Congress to exclude ANCSA corporations from the definition of “Indian tribe” for NAGPRA. Accordingly, the Solicitor’s Office recommended that the regulatory definition be changed.
Incidentally, in addition to the GAO report cited above, the GAO recently issued two other reports on repatriation: Smithsonian Institution: Much Work Still Needed to Identify and Repatriate Indian Human Remains and Objects (GAO-11-515, May 2011), available at www.gao.gov/new.items/d11515.pdf; and Indian Issues: Key Federal Agencies’ and the Smithsonian Institution’s Efforts to Identify and Repatriate Indian Human Remains and Objects (GAO-11-755T, June 2011), available at www.gao.gov/new.items/d11515.pdf. The June 2011 report was submitted as testimony for the Senate Committee on Indian Affairs’ June 16, 2011, hearing on NAGPRA implementation.
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