Of Their Own Choosing: Helping Tribes Develop Cultural Preservation Laws

This blog is part two of a two-part series highlighting burial and cultural property law templates drafted to support Tribal Nations’ protection of their heritage on their lands. This second blog focuses on burial and cultural property preservation laws and Tribes. If you’d like to read about Tribal sovereignty, self-determination, and self-governance as general legal concepts here in the United States, click here. 

Updated 7/28/2025

ARPA, the Archaeological Resources Preservation Act (18 U.S.C. § 470ee), and NAGPRA, the Native American Graves Protection and Repatriation Act (18 U.S.C. § 1170), are among the World’s foremost cultural preservation laws. However, they can only be prosecuted by a Federal Prosecutor in Federal Court. And almost all states have cultural preservation laws. What with all the amazing historical and archaeological features located on reservations, Tribes need these laws too.  

Many Tribes already have excellent laws of this kind. The Navajo Nation has a comprehensive set of statutes which includes establishment of a Historic Preservation Department, a Tribal Museum, a set of definitions, including those for Cultural Property and Cultural Resource and site, a permit system for persons with legitimate needs to be present at those sites, and a system of criminal and civil penalties for offenders who are present on those sites without a permit or authorization. Another example is the Eastern Cherokee. The Tribe has their own set of laws establishing a Historic Preservation Office and a similar, but different from the Navajo, permit regime which protects burials and skeletal remains found on their land. All have the same goal, to protect sacred sites and burials, which are of interest to looters and grave robbers. That same goal but in language of their own choosing.  

That’s one of the goals of the templates we have developed. To establish comprehensive cultural property protection laws for Tribes which do not already have such laws on the books. In doing so, we have focused on what has worked for others and give Tribes options which fit their own geography, landscape and traditions. Thus far, three comprehensive cultural property protection templates have been drafted. As is customary for modern day statute drafting, all have a set of detailed definitions of terms as to what is being protected, and the lines of authority for the issuance of permits for persons who seek to conduct archaeology on Tribal land, and those who are constructing road, waterline and other construction projects. Finally, there is a right of appeal for those who feel their permit has been denied or revoked without due process of law. All create a Property Preservation Office or Tribal Historic Preservation office. In every likelihood these offices already exist, but the law must be clear on who has authority to issue or revoke a permit (the Tribal Chairman, Council, or Court) and likewise where a hearing on this authority may be held (the full Tribal Council or the Tribal Court system). 

One statutory template establishes a register of cultural properties and landmarks. Only these sites are protected and the Tribal Historic Preservation Officer (THPO) “creates, maintains and expands” this list of protected places and oversees several classes of permits by which persons may visit, study, collect or even engage in construction of projects upon within the limitations stated in the permit. Another addresses the issue of protecting cultural property by protecting burials wherever they may exist and items placed within those burials at the time of death or later. A third template addresses both archaeological sites on tribal land and burials in separate provisions. All the statutory templates create criminal penalties and civil fines for persons who either dig or disturb sites without or in violation of a permit. I’ve mentioned the importance of establishing sound definitions in modern statute drafting. Even the definition of the term “person” can be meaningful. The term may include an individual member of a Tribe, but it can also include persons who are not Tribal members. Some Tribes exclude their own members from needing permits if they are present on a sacred site for religious purposes. That is their right to do so! A person, if included in the definition, may also be a corporation or partnership. So, if a contractor, present on a reservation to perform a service, commits an offense, then that “person” may be held liable for a fine and any damages and restitution that one or more of their employees have caused. That can only happen if the Tribal statute in question allows for this. 

A note on penalties. Generally, by Supreme Court law, Tribal authorities lack criminal jurisdiction over non-Indians (see, Oliphant v. Suquamish Tribe, 435 U.S. 191 [1978]). However, Tribes can exert civil authority over non-Indians, that is they can cite and fine them when their conduct threatens the health or welfare of the Tribe. Also, the Supreme Court has recently clarified and expanded the authority of Tribal police over non-Tribal members. Before, all they could do was detain a person believed to have committed an offense until State or County officers arrived. In, United States v. Cooley, 141 S. Ct. 1638 (2021), the Court held that Tribal police can both detain and search persons believed to have committed an offense on reservation land until other authorities, including Federal agents, such as Bureau of Indian Affairs agents, arrive. It is also worth noting that by including the term “any Indian” in its definition of “person,” a Tribe may also prosecute, to the fullest extent of the law, members of other Tribes in addition to their own. United States v. Lara, 541 U.S. 193 (2004). That’s an option, if a particular Tribe wishes to do so. By the way, the legal definition of the term “Indian” is found at Title 25, United States Code, Section 1301 and includes only members of a Federally recognized U.S. Tribe. Likewise, “Indian Land” must be land occupied by a recognized Tribe. (25 USC § 1302). 

Another goal of this effort is to develop a template for a Tribal regulation, ordinance or statute which excludes non-Tribal members from reservation land who commit violations. These violations may be related to looting and grave robbing offenses but can also relate to any violations the Tribe sees fit to include in their list of prohibitions. On one reservation I am aware of, a certain individual has looted historic and pre-historic sites for many years. When he was last caught by Tribal game rangers, he was digging in a site sacred to that Tribe, had dirt on his hands and clothes, and left digging tools in the site. This person was not prosecuted by the U.S. Attorney’s office. Even though not convicted of a crime, what if the Tribe could just say “enough is enough” and bar him from being present on their land? That way, Tribal police could arrest him on sight and not have to prove a criminal purpose. That’s what another Template sets out to do. Create a process by which persons may be excluded from Indian land. The Supreme Court has held that a Tribe has the unrestricted right to exclude persons from reservation land they regard as “undesirable.” U.S. v. Cooley, 141 S. Ct. at 1216. 

In conclusion, this effort is another part of our Save History mission to end archaeological resource crime on Tribal lands. United States Attorney’s offices must do their part too. Theirs is a larger role since they enforce both ARPA and NAGPRA on the public as a whole. But, with increased awareness of the looting problem, Tribes have a role to play as well, and we stand by to assist them. Even before this blog was posted, we began working with two Tribes to establish a working archaeological/burial crime statute. Now, another Tribe has asked for all four of our Templates and we’ve offered to help in drafting a statute which meets their needs. All, a good sign!

By Randy Ream

Are you interested in advocating for your own Tribal Nation to pass these kinds of statutes to protect sacred sites and burials? Reach out to us at [email protected].

Click here to continue to the first part of these blog posts to learn more about Tribal sovereignty and Tribal self-governance. 

Review and download the customizable templates here

Tribal Cultural Preservation Act Template 1

Tribal Cultural Preservation Act Template 2

Burials and Burial Site Preservation Template

Tribal Exclusion and Removal Code Template