Comment on FR Doc # 2010-05283

This comment and Federal question Jurisdiction is in reference to ID # 124-AD68 NAGPRA regulations, 10.11, the disposition of culturally unidentifiable Native American human remains. I respectfully request that a Federal Judge rule on a Federal question jurisdiction regarding the rights of organized 25USC657 California Indian Tribes before you proceed to give away our ancestors. That question is, Do organized Bands of 25USC657 California Indians have a right to stand and make a claim for repatriation as is clearly articulated in the National NAGPRA preamble. “Indian Tribe defined” NAGPRA definitions, “Indian Tribe” defined. One commenter recommended clarifying the definition of Indian tribe in §10.2 (a)(9) (renumbered §10.2 (b)(2)) to ensure timely notification. Seventeen commenters recommended expanding the definition to include a broader spectrum of Indian groups than those recognized by the Bureau of Indian Affairs (BIA). Several commenters identified specific groups they felt should have standing, including: Various bands or tribes in California, Washington, and Ohio; Native American groups that ‘‘would be eligible for recognition by the BIA if they so chose to be’’; and ‘‘bands recognized by other Federal agencies.’’ Native American organizations such as the American Indian Movement; Section 12 of the Act makes it clear that Congress based the Act upon the unique relationship between the United States government and Indian tribes. That section goes on to state that the Act should not be construed to establish a precedent with respect to any other individual or organization. ----------------------------------------------------------------------------- (added comment) “Precedent” defined: a rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. The decision to deal with “California Indians “ in a federal jurisdiction legal status has already been made. by 25USC657 “California Indian” defined by 25USC1679 health care criteria. ------------------------------------------------------------------------------ NAGPRA, The statutory definition of Indian tribe, which specifies that such tribes must be ‘‘recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians,’’ precludes extending applicability of the Act to Indian tribes that have been terminated, that are current applicants for recognition, or have only State or local jurisdiction legal status. ----------------------------------------------------------------------------- (added comment) Federal question Jurisdiction. Cases arising under Constitution of United States, Acts of Congress, or treaties, and involving their interpretation and applications, and of which jurisdiction is given to federal courts , are commonly described as involving a “federal question” See U.S. Const., Art.III, Sec. 2, and 28U.S.C.A. ss1331 with respect to “federal question” jurisdiction of federal courts ------------------------------------------------------------------------------ NAGPRA, As was explained in the preamble of the proposed regulations, the definition of Indian tribe used in the Act was drawn explicitly from an earlier version of the bill (H.R. 5237, 101th Congress, 2nd Sess. sec. 2 (7), (July 10, 1990)) using a specific statutory reference. The final language of the Act is verbatim from the American Indian Self Determination and Education Act (25 U.S.C. 450b). The earlier statute has been carried out since 1976 by the BIA to apply to a specific list of eligible Indian tribes which has been published in the Federal Register. Four commenters found this interpretation unduly narrow and recommended interpreting the statutory definition to apply to Indian tribes that are recognized as eligible for benefits for the special programs and services provided by ‘‘any’’ agency of the United States to Indians because of their status as Indians. The Review Committee concurred with this recommendation. Based on the above recommendations, the definition of Indian tribe included in the regulations was amended by deleting all text describing the process for obtaining recognition from the BIA. In place of this text, the final regulations include a statement identifying the Secretary as responsible for creating and distributing a list of Indian tribes for the purpose of carrying out the Act. This list is currently available from Sherry Hutt, National NAGPRA program manager and will be updated periodically. ----------------------------------------------------------------------------- (added comment) Now read the Definition of "Indian Tribe" contained in National NAGPRA. ----------------------------------------------------------------------------- NAGPRA, (7) "Indian tribe" means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. ----------------------------------------------------------------------------- (added comment) I read this to mean, "Indian Tribe" means any tribe or band of organized 25USC657 California Indians.  We do receive health care services from the BIA. The original definition of Indian Tribe in National NAGPRA was discarded because it was too narrow of a list. Preamble to NAGPRA rule 10.11 Thus, when this proposed rule refers to ``Indian tribes,'' the drafters are using the existing definition of that term, which is not proposed for changes. That definition, at Sec. 10.2(b)(2), only refers to federally-recognized Indian tribes. The drafters of the proposed rule have been very careful to distinguish tribes that are not federally-recognized Indian groups when those groups are included in a provision of the rule in order to maintain a clear distinction. The only mandatory consultation or disposition in the rule, consistent with the Act, is to Indian tribes (i.e., federally-recognized) or Native Hawaiian organizations. This preference in both the regulations and the statute is based not on ``cultural lineage'' but on the plenary power of Congress to ``regulate commerce * * * with the Indian Tribes'' (U.S. Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-government relationship between the United States and Indian tribes. (Morton v. Mancari, 417 U.S. 535, 551-52 (1974)). Eric S Josephson NAGPRA Cooridnator Konkow Valley Band of Maidu 1706 Sweem St Oroville CA 95965 Eric@maidu.com