Pine Tree Legal’s Indigenous Peoples Unit was asked by the Wabanaki Intertribal Repatriation Committee to work with them on drafting comments to the United States Department of the Interior (Interior) on updating the regulations for the Native American Graves Protection and Repatriation Act (NAGPRA). These comments were submitted as a part of a Tribal Consultation comment session on a draft of proposed updated regulations. We sat down with Indigenous Peoples Unit Advocate Ryan Lolar to learn more.

What is repatriation and what is NAGPRA?
Repatriation, in this context, is the return of ancestors, objects, art, and any other form of tangible items that were taken from where they rightfully were or from the people(s) who rightfully had possession of them. Internationally, repatriation is acknowledged as a right of Indigenous People in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as is the right to protect culture:
  1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. UNDRIP, Art. 11(1).
  2.  Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. UNDRIP, Art. 12(1).

For Indigenous Peoples in the United States, efforts to repatriate have been ongoing since ancestors and objects were stolen in the first place. However, successful advocacy by Tribal Nations and Indigenous advocates led to the passage of NAGPRA in 1990. NAGPRA sets federal standards on excavation, documenting collections, consultation, and repatriation for federal agencies and museums that receive federal funding. NAGPRA is put into effect through a serious of regulations at 43 CFR Part 10. Ultimately, the best way to put how NAGPRA should work is to take the National Park Service’s (NPS) word for how it should work:

By enacting NAGPRA, Congress recognized that human remains of any ancestry "must at all times be treated with dignity and respect." Congress also acknowledged that human remains and other cultural items removed from Federal or tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, and Native Hawaiian organizations.

Outside of the legal framework, repatriation restores balance to the community and begins to right the injustice of stealing ancestors, funerary objects, sacred objects, and objects of cultural patrimony from traditional lands. Our ancestors and all our generations deserve dignity and respect, and that dignity and respect in this space starts and ends with repatriation.

What is the Wabanaki Intertribal Repatriation committee?
The Wabanaki Intertribal Repatriation Committee formed in the early 1990s following the passage of NAGPRA to engage in a coordinated effort to bring home Wabanaki ancestors and their funerary objects from museums and federal agencies. The Committee is composed of representatives from all of the federally recognized Wabanaki communities: the Penobscot Nation, the Passamaquoddy Tribe at Motahkomikuk, the Passamaquoddy Tribe at Sipayik, the Houlton Band of Maliseets, and the Mi’kmaq Nation. Every meeting begins with a smudge and prayer with an offering of tobacco to enlist the spiritual guidance of the ancestors. The Committee has successfully worked to get several museums to repatriate ancestors and funerary objects. They continue to work toward the repatriation of ancestors and funerary objects and look forward to bringing more ancestors home.

What is Tribal Consultation?
Here, the comments the Committee submitted were part of a Tribal Consultation comment session. If you’re reading this and have a background in Administrative Law, you may know about the public notice and comment process that the federal government and most state governments have. However, the Tribal Consultation comment period exists as a part of the Trust Responsibility and the government-to-government relationship between the United States and Tribal Nations. The Trust Responsibility requires the federal government to listen to the position of Tribal Nations whenever it takes actions that impact them. For the update to the NAGPRA regulations, the federal government held listening sessions with Tribal Nations and opened a comment period solely for Tribes and Native Hawaiian Organizations.

It would be more involved than there is space available in this newsletter to get fully into the Trust Responsibility, but at least when considering federal actions, federal agencies follow the Trust Responsibility based on legal precedent and through Executive Order 13175 (EO 13175). EO 13175 sets a baseline for consultation and coordination with Tribal Nations. It was re-emphasized this past year when one of the new administration’s first actions was to issue the Presidential Memorandum on Tribal Consultation and Strengthening the Nation-to-Nation Relationship. There are numerous forms of Tribal Consultation that can take place with federal actions and the strength and depth of the process can vary agency to agency and project to project.

There have been movements domestically and internationally to make a more robust form of Tribal Consultation that would implement a concept called Free, Prior, and Informed Consent (FPIC). FPIC would require the federal government, and any states that implement similar concepts, to more fully work with Tribal Nations to approve of projects before they occur. Currently, Tribal Consultation can be just a box that a federal agency or state agency has to check before advancing on the course it started out on. FPIC would make both Tribal Consultation and Tribal consent necessary for actions with implications for Tribal Nations.

What was Pine Tree Legal’s involvement with this Tribal Consultation process?
Pine Tree worked with the Committee on drafting comments based on what the Committee would like to see in updates to the NAGPRA regulations. The Committee’s thoughts were informed by the barriers the Committee has faced in trying to repatriate ancestors and funerary objects and were informed by a respect for the thoughts of Tribal Nations in other parts of Indian Country. One aspect we focused in on is the situation where museums identify ancestors and funerary objects as “culturally unidentifiable” because NAGPRA and the NAGPRA regulations impose the lowest burden on museums to repatriate “culturally unidentifiable” ancestors and funerary objects. The New York Times covered this exact problem in an article this past summer and specifically identified some institutions that are the most problematic when it comes to this practice ( Another problem that was of particular concern was who the consultation burden falls on between the museums and Tribes when it comes to everything from setting up meetings to identifying cultural affiliation.

We also worked with the Committee on incorporating some of what has been discussed above such as asking for a more robust consultation process with Interior and a fuller state mechanism for ensuring that the goal of repatriation at the heart of NAGPRA is more often the result of consultation with museums and federal agencies. It is no secret that despite the improvement NAGPRA has made since its passage that museums and federal agencies still hold thousands and thousands of ancestors and funerary objects in their collections that they have not worked to repatriate.

The Committee and many in Indian Country would like to see NAGPRA live up to its full potential, and to see similar programs implemented in other countries where Indigenous Peoples do not currently have a law on the books, such as Canada.

What has happened with the case so far?
We were able to work with the Committee and their allies to submit comments to Interior on the updates to the NAGPRA regulations. The timeline that Interior set was relatively quick for getting through a set of new regulations. There are differing views in Indian Country on whether Interior’s short timetable for these updates is the right approach, but many Tribal Nations requested that Interior take more time to do another round of Tribal Consultation before opening up the draft of the proposed regulations to public comment. Now we are waiting to hear from Interior on what their next steps are so we can continue to work on this project and make sure that the Committee’s voice and the voice of Wabanaki people are heard by Interior on the important process of repatriation in sync with other Tribes throughout the land. There is a common goal among all Tribes to repatriate their ancestors that have been taken and held for too long without the Tribes’ free, prior, and informed consent.
Micmac Nation Vice Chief Silliboy
PTLA Board Member

How long have you been on the board?
Eight months currently, and two years in the mid-90s.

Do you have any hobbies?
Playing pool with friends twice a week; I've been playing pool for most of my life.

What is your favorite song?
The Micmac honor song.

What is your favorite time of year?
Spring and summer, my least favorite is winter.

What is your favorite place in Maine?
Mount Desert Island area.

What is a culturally significant place in Maine?
Sprucehaven in Caribou where the annual Micmac powwow is held.

Is there any specific practices or traditions from the Micmac traditional heritage that is part of your day-to-day life?
I am a master basket maker.

Why are you a member of the Pine Tree board?
The first time I was invited, I decided to step forward [for the community]. Whenever there is a Native American issue [I will always step forward]. I have served on many other committees and boards. Pine tree was looking for another Native American representative this year.

Is there anything about Native American heritage that other people might find interesting or might not know?
We are losing our culture and our language. We are fighting hard to preserve the culture and language, but we compete against a new way of life, the lifestyle of young people. Children and youth are now more independent and less interested in an old lifestyle. Computers, social media, and video games are hard to compete with; it is hard to attract young people to the art a basket making.

Are there any specific areas that Indigenous peoples of Maine need more support in?
Wabanaki people are treated differently than other tribes across the nation. There is a damaged relationship between tribe and state. We do not have the same jurisdiction and authority to do things. The way the settlement act was written puts restrictions on Wabanaki people. If the 1626 new bill gets through it should change that. Micmac’s have shown interest and support but have not signed onto it yet and we plan to this year or next year.

Are there any specific areas in Indian country or for Micmac’s and Wabanaki people that need more awareness brought to it?
The public is not aware of the politics within tribal relations. There’s a very small turnout [for NA issues meetings], there are small groups that will support a candidate but not a topic; it’s more about the individual and their popularity and not the actual issue. The biggest political issue is climate change; most people are ignoring that it’s such a big problem. 
Ryan Lolar
Advocate, Indigenous Peoples Unit

Office: Bangor

Number of Years at Pine Tree: Three months and counting! I also was an undergrad intern while at Colby College back in 2017, and I was a law student intern in spring this past year.

Law school: I recently graduated from the University of Colorado Law School at the University of Colorado Boulder. 

Where is your favorite place in Maine?
This is cheating as an answer, but I’m going to say the Penobscot River Watershed. Some of the best places I’ve ever been are in that stretch from the Katahdin Region down to Penobscot Bay

What are some hobbies you enjoy outside of work?
I mostly like to travel, hike, paddle, and ski. 

What is your most memorable case, or favorite memory from working at Pine Tree?
I just generally enjoy getting to work with people in the Wabanaki Tribes and with everybody here at Pine Tree. It's a real joy to see all of the great work that people do week in and week out for communities across Maine and with the Wabanaki Tribes.

Why did you want to work at Pine Tree? What brought you to Pine Tree and what did you do before?
I wanted to work at Pine Tree for a couple reasons. First, I grew up in a single parent household on SSDI and several other public benefits, so I know how crucial some of this work is for the people we work with and I wanted to be part of increasing access to justice and services for those folks. Second, I went to law school knowing I wanted to practice Indian Law. This position was one of several on my mind because it would allow me to also work in my family's community, the Penobscot Nation. It was serendipitous that the position was open when it was. In law school, I worked for Office of University Counsel for the CU System, the Colorado Law American Indian Law Clinic, The Wilderness Society, and the National Audubon Society. 

Tell us about your pet(s):
We have a tuxedo cat named Rosie that we adopted when we lived in Denver. She’s been a solid coworker when working from home, definitely holds up the company morale. 

If you could pick one song to play every time you enter a room, what would it be?
This one is tough because it’s so vibe dependent. Because I already kind of cheated on the ‘Favorite Place’ question, I’ll stay faithful to the prompt, but semi-unserious and say Losing It by Fisher.
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Pine Tree Legal Assistance is a non-profit, is a 501(c)(3) organization incorporated on June 14, 1966. Our tax ID number is 01-02 79387. Pine Tree Legal Assistance is funded in part by the Legal Services Corporation (“LSC”). As a condition of the funding received from LSC, Pine Tree Legal Assistance is restricted in certain activities in all of its legal work, including work supported by other funding sources. Pine Tree Legal Assistance may not expend any funds for any activity prohibited by the Legal Services Corporation Act, 42 U.S.C §2996 et. seq. or by Public Law 104-134. Public Law 104—234 §504(d) required that notice of these restrictions be given to all funders or programs funded by the Legal Services Corporation. For a copy of these laws or any further information, please contact: Executive Director, Pine Tree Legal Assistance, PO Box 547, Portland, Maine 04112; Tel. 207-774-4753.