Native American Graves Protection and Repatriation Act (NAGPRA)

1
Native American Graves Protection and
Repatriation Act (NAGPRA)

• Jack F. Trope, Executive Director, Association on
  American Indian Affairs

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NAGPRA

• Applies in three contexts
• (1) repatriation of human remains and
  cultural items from museums and
• federal agencies,
• (2) protection of burial sites and cultural
• items located on federal and tribal
  
• land, and
• (3) trafficking in Native American
• human remains and cultural items.

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NAGPRA Legislative History

• Human rights legislation
• Based upon trust relationship
• Compromise between museum, scientific, Indian
  communities

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NAGPRA Who has rights

• Lineal descendants
• Indian tribes
• Native Hawaiian organizations

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NAGPRA Definitions

• Associated funerary objects Objects made
  exclusively for burial purposes or that are
  associated with specific human remains in the
  custody of the agency or museum
• Unassociated funerary objects Objects removed
  from a burial site where the human remains are
  not in the custody of the agency or museum

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NAGPRA Definitions (cont.)

• Sacred objects Ceremonial objects needed for
  the practice of traditional Native American
  religions by present day religious leaders
• Objects of cultural patrimony Object having
  ongoing historical, traditional or cultural
  importance central to the tribe/culture and which
  was inalienable at the time it was separated from
  the tribe

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NAGPRA Who Has Responsibilities

• Museums federally funded
• Federal agencies (excluding the Smithsonian which
  is covered by its own law)

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NAGPRA - Responsibilities

• Item by item inventory of human remains and
  associated funerary objects
• Summaries of unassociated funerary objects,
  sacred objects and cultural patrimony

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NAGPRA - Repatriation

• Human remains and associated funerary objects
  must be repatriated to direct descendants and
  culturally affiliated tribes
• Cultural affiliation relationship of shared
  group identity which can be reasonably traced
  between a present day tribe and an identifiable
  earlier group

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NAGPRA - Repatriation

• Cultural affiliation determined through
  inventory/summary or based on evidence submitted
  by a tribe/NHO
• Types of evidence may include geographical,
  kinship, biological, archaeological,
  anthropological, linguistic, folkloric, oral
  traditional and historical evidence

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NAGPRA - Repatriation

• Recent regulations govern repatriation of human
  remains whose cultural affiliation cannot be
  determined.
• Museum or federal agency must offer to return
  culturally unaffiliated remains if removed from
  tribal land or tribal aboriginal territory
• Culturally affiliated tribes that are not
  federally recognized may repatriate if no
  federally recognized tribe who could make a claim
  objects

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NAGPRA - Repatriation

• Repatriation of unassociated funerary objects,
  sacred objects and cultural patrimony a 4 step
  process
• 1. Show that the item meets the definition for
  one of the categories
• 2. Show cultural affiliation or (in case of
  sacred objects and cultural patrimony) that the
  item was previously owned or controlled by the
  tribe or a member of the tribe (lineal
  descendants may seek return of sacred objects)

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NAGPRA - Repatriation

• 3. Present prima facie evidence that the museum
  or agency did not have right of possession, i.e.,
  did not obtain the items with the consent of an
  individual or group that had the right to
  transfer title.
• 4. If prima facie case made, then burden shifts
  to museum or agency to prove it has the right of
  possession.

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NAGPRA What types of sites are covered

• Sites that contain human remains or Native
  cultural items
• Cultural items include funerary objects
  (associated and unassociated), sacred objects,
  and cultural patrimony

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NAGPRA Lands Covered

• Federal lands
• Tribal lands defined to include all lands
  within reservation boundaries regardless of land
  ownership, all dependent Indian communities and
  lands administered for Native Hawaiians.
• State land in one circumstance land transferred
  to South Dakota in the Water Resources Act

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NAGPRA Intentional Excavations

• Tribal land tribal consent required
• Federal land notice and consultation with tribe
• Party must obtain an ARPA permit

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NAGPRA Inadvertent discovery

• Person who discovered the items must cease
  activity for 30 days, make reasonable efforts to
  protect the items discovered, and notify the
  federal agency (if federal land) or the
  tribe/Native Hawaiian organization (if tribal
  land)
• When federal agency receives notice, it must
  notify appropriate tribe/NHO

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NAGPRA Consultation procedures federal lands

• Notice must be sent to known lineal descendants,
  tribes/NHOs that are likely to be culturally
  related to the items at the site and tribes that
  aboriginally occupied the land notice shall
  propose a time and place for meeting and include
  relevant information
• Agencies should also seek to identify traditional
  religious leaders

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NAGPRA Possible outcomes

• Commentary to the regulations states that in
  situ preservation of sites should be considered
  wherever possible
• But NAGPRA does not prevent excavation.
• If excavation, ownership and control of the items
  can pass to descendants or tribe/NHO if legal
  criteria met it not, becomes property of the
  United States

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NAGPRA Action Plans

• Where excavation is to occur, agencies must
  develop written action plans that include (1)
  information about kinds of objects considered
  cultural items, and (2) how custody will be
  determined and items disposed of, (3) how
  cultural items will be handled and analyzed and
  recorded (if applicable), and (4) how tribes will
  be consulted.

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NAGPRA Ownership/Control Rules for
Remains/Objects Unearthed on Federal/Tribal lands

• Human remains and associated funerary objects
  Lineal descendents
• Unassociated funerary objects, sacred objects and
  cultural patrimony (or if no lineal descendents
  determined)

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NAGPRA Ownership/Control Rules for
Remains/Objects Unearthed on Federal/Tribal lands
(cont.)

1. Tribe or NHO with the closest cultural
   affiliation,
2. The tribe/NHO on whose land the object or remains
   were found
3. Tribe that obtained an Indian Claims Commission
   or Court of Claims judgment recognizing the land
   on which the object or remains were found as its
   aboriginal land, unless there is another tribe
   with a closer cultural relationship.

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NAGPRA Ancient human remains

• Bonnischen v. United States, 367 F.3d 864 (9th
  Cir. 2004)
• Interpreted statute to apply only to human
  remains and cultural items that bear a
  significant relationship to a presently existing
  tribe, people or culture
• Not adopted by any other Circuit to date

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NAGPRA Trafficking

• Prohibits trafficking in human remains without
  consent of the next of kin, tribe or NHO
• Prohibits trafficking in cultural items if
  obtained in violation of the Act

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NAGPRA Review Committee

• 7 member committee, 3 Native American (at least 2
  traditional Native American religious leaders), 3
  from museum and scientific community, 1 chosen by
  list compiled by the other 6.
• Makes recommendations to Secretary on
  regulations, monitors inventory process, makes
  recommendations to parties in disputed cases,
  submits report to Congress.

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International Repatriation

• Increased focus on issue by tribes
• Right to repatriation recognized by the United
  Nations Declaration on the Rights of Indigenous
  Peoples