Abstract

Excerpted From: Pai Liu, Expanding the Native American Graves Protection and Repatriation Act to the U.S. Territories, 27 NYU Journal of Legislation and Public Policy 869 (2024-2025) (342 Footnotes) (Full Document)

In an August 2021 memo, Pentagon officials wrote to local preservation authorities in Guam, “We kindly remind you that a local State Historic Preservation Office may not impose local statutes on Federal agencies.” These authorities had expressed concerns about a military base that was to be built on top of ancient burial grounds of the indigenous Chamorro (or “CHamoru”) people. Previous base expansion in Guam had unearthed Chamorro artifacts and human remains that the military had removed without indigenous consent. Removal of human remains and cultural items by a federal entity without tribal consent, consultation, or notification could not occur in the fifty states, which are covered under the NativeAmerican Graves Protection and Repatriation Act (“NAGPRA”).

Indian tribes and Native Hawaiian organizations in the fifty states have some legal protections for their cultural items and human remains through NAGPRA. Congress passed this landmark piece of legislation in 1990, and it provides ownership rights for indigenous cultural items and human remains excavated or discovered on federal or tribal lands after 1990. NAGPRA also promulgates regulations on federal agencies and institutions, as well as on state and local government agencies receiving federal funds, including institutions of higher learning.

One major limitation of NAGPRA is its jurisdictional language. The Congressional Bill does not contain any references to the U.S. Territories, so regulations have consistently excluded them. The Department of the Interior, the agency tasked with enacting the regulations, has stated that “[t]he rule of statutory construction stipulates that Federal law applies to United States Territories only when specifically indicated.” Current regulations define “United States” as “the 50 States and the District of Columbia.” The exclusion of the U.S. Territories from NAGPRA has been given scant consideration by the public. Neither the House nor Senate Reports on the legislative history of NAGPRA contain any references to the Territories. In the initial 1995 rulemaking process, only three out of eighty-two public comments asked about the application of NAGPRA to the Territories. In the 2023 revision process, only one out of 181 public comments mentioned the issue of the Territories. The lack of attention given to the Territories in the legislative process mirrors the lack of discussion around them in American society generally.

NAGPRA's exclusion of the Territories has led not only to the current controversy in Guam, but also to controversies in the other Territories. This Note focuses on the five inhabited U.S. Territories: Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. It argues that NAGPRA should apply in these jurisdictions. Much like indigenous people in the fifty states, indigenous groups in the U.S. Territories face similar cultural property theft from federal entities, museums, and private art dealers.

Cultural property protections for indigenous people are of utmost importance as they safeguard the rich heritage and traditions that have been passed down through generations and that have been suppressed by forced assimilation policies. NAGPRA helps to counteract the historical injustices of such displacement and forced assimilation. Such protections need to extend to the Territories, which currently exist in a legal limbo where they are part of the “United States” when it is convenient and not part of the “United States” when it is inconvenient. The indigenous people of the Territories are marginalized not only by the legacies of colonialism, but also by political disenfranchisement. Residents of the Territories cannot vote in federal elections and can only send one non-voting delegate to Congress. Furthermore, no indigenous people in the Territories are federally recognized.

In 2011, the United States announced support for the United Nations Declaration on the Rights of Indigenous Peoples (“the Declaration”). Article 12 of the Declaration states that indigenous people have “the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains” and that “States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with the indigenous peoples concerned.” Expanding NAGPRA to cover the indigenous people in the Territories would be the first step the federal government could take to show its commitment to the ideals in the Declaration.

Past and present NAGPRA scholarship has been limited to its application to NativeHawaiians and federally recognized tribes, while scholarship on indigenous issues in the U.S. Territories has only mentioned NAGPRA in passing. This Note will discuss the importance of applying NAGPRA to the U.S. Territories and outline possible ways of enacting the legislation in those jurisdictions. Section II of this Note introduces the legal theories surrounding cultural heritage and gives a brief overview of the history of indigenous cultural heritage dispossession in the fifty states. Section III discusses cultural heritage issues in the U.S. Territories and argues why NAGPRA needs to be extended to those areas. Section IV examines the text of NAGPRA, litigation since its passage in 1990, and existing cultural heritage laws in the Territories. Lastly, the Note proposes recommendations for the expansion of NAGPRA to the Territories and how to organize indigenous entities in those regions for the regulatory process, modeled on existing NAGPRA regulations in Hawaii.

[. . .]

While NAGPRA has many shortcomings in its implementation, expanding its jurisdiction can be one step towards rectifying the damage of ongoing indigenous cultural property loss in the U.S. Territories. While indigenous cultural objects have become commercialized, their worth to their respective communities has no monetary value; they are an invaluable part of tribal identity and cultural perseverance. Chamorro activist Cara Flores-Mays said, in response to military build-up in Guam, “I think there's a growing number of people who are realizing that money is not everything and that there are parts of our island that we'll lose that will be irreplaceable and that are much more valuable than money.” groups in the fifty states and Territories have a shared history of cultural dispossession stemming from colonization. Indigenous people of the Territories additionally suffer from political disenfranchisement and exclusion from the American historical narrative. Extending what little cultural property laws exist in the United States to its often-forgotten regions would be an important step in rectifying the historical and on-going expropriation of their cultural heritage.

J.D., 2025, Temple Beasley School of Law.