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55 Chapter 2 “The Secretary Shall”: Actual and Apparent Delegation of NAGPRA’s Implementation Responsibilities C. TIMOTHY McKEOWN When the Native American Graves Protection and Repatriation Act (NAGPRA) was signed into law on November 16, 1990, it contained provisions requiring the Secretary of the Interior to carry out certain administrative duties and authorizing the secretary to carry out others. Required duties relate to the Review Committee, regulations, and notices. The secretary was directed to establish a committee to monitor and review the implementation of the summary, inventory, and repatriation provisions of the act by February 16, 1991, and to promulgate implementing regulations by November 16, 1991. The secretary was also required to publish in the Federal Register a copy of the notification prepared by each federal agency or museum regarding the identity, acquisition, and cultural affiliation of Native American human remains and associated funerary objects in its possession or control. The secretary was authorized to carry out certain discretionary duties related to inventory deadlines, grants, civil penalties, and disposition of certain excavated or discovered cultural items. The secretary could extend the November 16, 1995, deadline for any museum that made a good faith effort to complete its inventory of Native American human remains and associated funerary objects. The secretary was authorized to make grants to assist museums, Indian tribes, and Native Hawaiian organizations in conducting summary, inventory, and repatriation activities, and to assess a civil penalty on any museum that failed to comply with the requirements of the act. Lastly, upon the request of the secretary of any other U.S. department or the head of any other agency or instrumentality, the Secretary of the Interior was authorized to accept responsibility for the certification and disposition duties related to inadvertent discovery of Native American cultural items on lands controlled by another department or agency. 56 CHAPTER 2 The Secretary of the Interior was in many ways a logical choice to carry out NAGPRA’s assigned administrative duties. The secretary serves as the head of the Department of the Interior, the nation’s principal conservation agency, which manages 500 million acres of surface land (about one-fifth of the land of the United States); curates 140 million historical and cultural objects and documents (second in size only to the Smithsonian Institution); and honors the nation’s trust responsibilities to American Indians and Alaska Natives. Since 1990, six individuals have served as Secretary of the Interior and been responsible for carrying out these duties: Manuel Lujan Jr. (February 3, 1989–January 20, 1993), Bruce Babbitt (January 22, 1993–January 2, 2001), Gale Ann Norton (January 31, 2001–March 30, 2006), Dirk Kempthorne (May 29, 2006–January 19, 2009), Ken Salazar (January 21, 2009– April 12, 2013), and Sally Jewell (April 12, 2013–present). Each Secretary of the Interior appoints a number of assistant secretaries to carry out duties in particular areas. The Assistant Secretary for Fish and Wildlife and Parks is responsible for the development, conservation, and utilization of fish, wildlife, recreation, historical, and national park system resources of the nation. The Assistant Secretary for Policy, Management and Budget is responsible for management, budget , and other administrative activities, including overseeing how the department’s museumpropertyismanaged.TheAssistantSecretaryforIndianAffairsexercisesthe authorities and responsibilities of the secretary relating to Indian tribes, individual Indian tribal members, and Indian affairs in general. Taken together, the department’s expertise and infrastructure seemed custommade for implementing the act. The reality was somewhat more complex. While the department had testified before Congress on other repatriation bills, represented by a senior official from the National Park Service, it declined to provide a witness for the hearing on H.R. 5237, the bill that would become NAGPRA (U.S. House of Representatives 1990b: 2). Executive correspondence to the House of Representatives made it clear that the department opposed passage of H.R. 5237 without extensive amendments, including removal of provisions applying to sacred objects and objects of cultural patrimony, disposition of discovered cultural items based on the “closest” cultural affiliation, or discovery on aboriginal lands. This required the Review Committee to compile a list of culturally unidentifiable human remains and make recommendations regarding their disposition. It also authorized open-ended and unlimited grants to tribes and museums involved in the repatriation process (U.S. Department of the Interior 1990). Congress ignored the department’s objections in the final legislation, but nevertheless retained the provisions entrusting implementation of the act to the secretary. Any vestigial ambivalence on being charged with implementing the provisions of the...


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