Practical Exercise #4

May 06 2008

Posted at 11:34 am under PresLawEcon

All,
I was wrong about the last email business – I wanted to send some comments about the last PrEx.

1. Re: repatriation of the artifacts and remains – yes, it is required. The key is in the statute; I’m sorry if I confused any of you with my answer regarding a “retroactive clause”. No, there is not clause that says explicitly NAGPRA is retroactive, but there doesn’t need to be. What it says is that museums have to summarize and inventory their collections at the time the law was passed and repatriate in certain conditions. That’s not retroactive per se, so I struggled to answer the question I was asked.

3. I was looking for the triggering of any or all of the following laws:

NHPA and NEPA – not triggered because it’s not a federal action. It doesn’t matter that it’s not federal land. One of you pointed out the tribe might be federally subsidized. If that’s true, then the subsidy might be subject to NHPA or NEPA, such as a grant to build the memory pile, but absent that fact, there’s no trigger.

ARPA and NAGPRA – is this Indian land?

I didn’t expect any of you to bring up AIRFA, as it is primarily instruction to the agencies to provide access. Here there’s really no need for the tribe to be required to give itself access, right?

4(b). What I mean by “internal nature” is the fact that this could be said to be a civil dispute. Does Hague apply to civil (internal) disputes? Yes – any armed conflict, not just “war”. Does NHPA 402 apply if we say this is internal, or is it still 106? I don’t know. Many of these questions (#4) are to test your reasoning. This one had fewer right answers than any other practical exercise.

4(c). Remember that the waiver has two aspects.

Is one party is using the resource in a way that exposes it to danger? If yes, the immunity or protection is waived, but really only if…

It is of unavoidable military necessity that the resource be risked (attacked). That doesn’t mean was it UMN for Naylor to use the buildings as shields; it means is it UMN for the U.S. to attack and risk or cause damage.

4(d). WHL or former NR status may make a difference primarily under 402, but also under the Hague convention. How you answer this will depend largely on your previous answers.

I hope that helps.
All the best!

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