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163 Chapter 7 NAGPRA’s Impact On Non-Federally Recognized Tribes ANGELA NELLER, RAMONA PETERS, and BRICE OBERMEYER Introduction The Native American Graves Protection and Repatriation Act (NAGPRA)1 gives standing to federally recognized Native American tribes, Alaska Native villages, and Native Hawaiian organizations. There is no statutory basis under NAGPRA for the repatriation of human remains, funerary objects, sacred objects, or objects of cultural patrimony to a non-federally recognized Indian group or tribe that has stated a claim based on a relationship of shared group identity. Their status as non-federally recognized does not give them the right to make decisions about repatriation even if the ancestors and cultural items are culturally affiliated with them. However, this does not exclude non-recognized Indian groups from participating in the NAGPRA process. Nothing in NAGPRA prevents a museum or agency from including a nonfederally recognized Indian group in the consultation process or a non-federally recognized tribe from participating in decisions about Native American human remains or cultural objects. Federally recognized tribes are those tribes that appear on the list of federally recognized tribes maintained by the Bureau of Indian Affairs (BIA) and published in the Federal Register.2 There are three possible routes that a tribe can follow in order to be included on the BIA list and thus hold status as a federally recognized tribe. A tribe can be acknowledged to hold a government-to-government relationship with the United States through the passage of a congressional bill. Another option is to pursue recognition through the federal courts as a judicial ruling that confers or upholds federal recognition for tribal governments. The final possibility is to achieve recognition through the executive branch either by executive order or by successfully petitioning for federal recognition through the federal acknowledgment process (FAP). Although congressional and judicial routes are still available to tribes, the FAP has largely secured a primary place as the model for tribal recognition.3 164 CHAPTER 7 The FAP was established in 1978 within the BIA to investigate the validity of tribal petitions for federal recognition or acknowledgment. The assessment of tribal petitions was first carried out by the Federal Acknowledgment Project office in 1978. The FAP was later renamed the Branch of Acknowledgment and Research (BAR) (Miller 2004:44). The BAR was later reorganized and became the Office of Federal Acknowledgment (OFA) and was recently moved to the Office of the Assistant Secretary of Indian Affairs within the Department of the Interior. Petitioning tribes must meet seven criteria in order to be acknowledged through the FAP; failure to meet any one of the criterion will result in a negative finding for the potential tribe. The first two criteria ask the petitioner to demonstrate that it has existed as an Indian community from historic times to the present (now revised to have existed from 1900 to the present), and that its existence is identified by outsiders and insiders alike as being distinct from other non-Indian and Indian communities. The final criterion , referred to as termination criterion, requires that neither the petitioner nor its membershipbethesubjectofanylegislationthatterminatedfederalrecognition.The middle four criteria deal with the characteristics of the tribal government. The governmental criteria require that the petitioning tribe (1) show evidence of a governing body that has maintained authority over its membership, (2) possess a governing document or rules for political organization, (3) demonstrate that its membership consists of individuals that descend from an Indian tribe that functioned as an autonomous entity, and (4) is comprised principally of persons not already enrolled in a federally recognized tribe. Non-federally recognized Indian groups either cannot meet the FAP criteria (often as a result of assimilation pressures that coerced groups to forgo the very characteristics that are now sought as proof of federal recognition), were refused federal recognition based on their inability to meet the FAP criteria, or had their tribal status revoked through various forms of governmental mischief. In some cases, non-federally recognized Indian groups chose not to give up their inherent rights as sovereign entities by choosing not to sign treaties with the federal government. Thus, while federally recognized tribes make up a significant portion of the Native American population, they do not represent the breadth of Native American communities , and do not possess the closest cultural affiliation to many Native American individuals currently in museums and federal agencies. In fact, the NAGPRA Review Committee has noted that cultural affiliation would in many instances be established with a non-federally...


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