Proposed Changes Put Alaska Native Burial and Cultural Sites at Risk

Published 10/6/2021. Modified 05/02/2023.

New rules proposed by the U.S. Department of the Interior eliminate certain obligations of federal officials to notify local Alaska Native villages and tribes when burial sites and related objects are found on federal land.

The federal Native American Graves Protection and Repatriation Act (“NAGPRA”) is the keystone of protection for Native American remains and related sacred and cultural objects found on federal lands. Under current regulations, federal officials must notify an affiliated tribe within three days after such cultural items are discovered.[1]

The proposed regulations remove this requirement such that a federal official does not need to notify and begin consultation with an affiliated tribe unless (i) the federal official determines further excavation is necessary[2]; or (ii) the cultural items are being disposed of.[3] The practical effect of this revision is that a federal official can take a variety of actions with respect to the cultural items without notifying or consulting the lineal descendants or affiliated tribe. This includes determining whether and how to cover and stabilize the cultural items; evaluating the need for further excavation; and certifying that a ground-disturbing activity in the area may resume.[4]

This change has important implications for tribes with cultural, historical, or archaeological sites on federal land. The effect of this change is particularly acute for Alaska Native villages and tribes because over 60% of the land in Alaska is federal land.[5] By delaying the notification and consultation requirements, the proposed changes remove tribal input from the early decision-making stages.

The proposed change to the notification rule is among a series of changes being proposed by the Dept. of the Interior. A copy of the proposed draft regulations can be found here. Although Interior is not currently soliciting input, tribes and other interested individuals will have an opportunity to comment on the proposed regulations when the Department issues a proposed rulemaking for public comment. The Department has indicated that it intends to issue its proposed rulemaking for public comment before the end of 2021.

[1] 43 C.F.R. § 10.4(iii), (iv).

[2] Draft Regulations for Consultation § 10.6(b).

[3] Draft Regulations for Consultation § 10.7(d).

[4] See Draft Regulations for Consultation § 10.5 (c), (d), (e).

[5] Cong. Rsch. Serv., R42346, Federal Land Ownership: Overview and Data 19 (2020). Although the proposed revisions retain the notice and consultation requirements for cultural items encountered on tribal lands, much of the land in Alaska is not considered to be Tribal Land as defined by NAGPRA. See 25 U.S.C. § 3001(15).