NHPA Doesn’t Trump NAGPRA

I encountered a situation yesterday that made me think there’s a need to clarify the relationship (such as it is) between compliance with Section 106 of the National Historic Preservation Act (NHPA) and the discovery provisions of the Native American Graves Protection and Repatriation Act (NAGPRA). In the case I encountered, a survey for NHPA purposes had revealed a “prehistoric” site whose surface and immediate subsurface expression amounted to a few flakes and a fragmentary projectile point. The site was determined not eligible for the National Register of Historic Places, so it was not further considered under NHPA. It was also not further considered under NAGPRA, and therein lies a problem.

The NAGPRA regulations, at 43 CFR 10.3(c), say:

(1) The Federal agency official must take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal lands. Prior to issuing any approvals or permits for activities, the Federal agency official must notify in writing the Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The Federal agency official must also notify any present-day Indian tribe which aboriginally occupied the area of the planned activity and any other Indian tribes or Native Hawaiian organizations that the Federal agency official reasonably believes are likely to have a cultural relationship to the human remains, funerary objects, sacred objects, or objects of cultural patrimony that are expected to be found. The notice must be in writing and describe the planned activity, its general location, the basis upon which it was determined that human remains, funerary objects, sacred objects, or objects of cultural patrimony may be excavated, and, the basis for determining likely custody pursuant to Sec. 10.6. The notice must also propose a time and place for meetings or consultations to further consider the activity, the Federal agency's proposed treatment of any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any excavated human remains, funerary objects, sacred objects, or objects of cultural patrimony. Written notification should be followed up by telephone contact if there is no response in 15 days. Consultation must be conducted pursuant to Sec. 10.5.
(2) Following consultation, the Federal agency official must complete a written plan of action (described in Sec. 10.5(e)) and execute the actions called for in it.

So in this case, should the presence of a small “prehistoric” site have caused the federal agency official to determine that the work planned at the location might “result in the excavation of human remains…” etc? I imagine that honorable people could disagree about this, and I for one would hate to see all the complicated requirements of 43 CFR 10.3(c) triggered every time an artifact, flake, or potsherd shows up in a survey; this would unreasonably complicate the lives of agencies and tribes (and Native Hawaiian groups) alike. But the point to keep in mind is that the presence or absence of a property that the agency and State Historic Preservation Officer (or Keeper of the National Register) judge eligible or not eligible for the National Register has nothing to do with NAGPRA. The two statutes are totally independent of one another. So an agency really has to make two separate, independent determinations: under NHPA it has to decide whether its project will affect anything eligible for the Register; under NAGPRA it must determine whether its project may unearth Native American graves or cultural items. Neither statutory requirement trumps the other.