Native American Graves Protection And Repatriation Act
AAIA played an integral part in the enactment of the NAGPRA in 1990. The following is a synopsis of some of the key provisions of the law.
Who and What Is Covered By NAGPRA
Who Can Make Claims
NAGPRA can be used to repatriate cultural items by the descendants of a deceased Indian individual, Indian tribes and Native Hawaiian organizations.
"Descendants" include both those individuals who, through blood or adoption, are directly related to the deceased person, as well as those who are considered descendants "by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization."
The term "Indian tribe" has been interpreted by the Department of the Interior to include only federally-recognized tribes and Alaska Native corporations. However, at least one court has indicated that the term also includes other "aggregations" of Indians (non-recognized tribes) which have received funds and assistance from other departments of the Federal government.
"Native Hawaiian organization" is defined as an organization which represents the interests of Native Hawaiians, has a primary purpose of providing services to Native Hawaiians, and has expertise in Native Hawaiian Affairs.
Who Can Claims Be Made Against
Claims can be made against museums and federal agencies.
The term "museum" is broad. It means any institution receiving federal funds after November 16, 1990 which has possession or control over Native American cultural items. This includes museums, state and local governments and colleges and universities. NAGPRA applies even if the museum itself has not directly received Federal funding if the museum is part of a larger entity (such as a local government or college) which has received Federal funds.
The term "federal agency" includes all departments and agencies of the federal government except for the Smithsonian Institution which is the subject of a separate law, the National Museum of the American Indian Act.
What Objects Are Covered By NAGPRA
NAGPRA applies to human remains, funerary objects, sacred objects and cultural patrimony. Human remains are not defined in the statute since it was assumed that the meaning would be clear. The other terms in the statute, however, are used differently in the statute than we would use them in everyday speech. Thus, it is important to understand the way that these terms have been described in the statute.
The statute divides the term "funerary objects" into two categories - "associated funerary objects" and "unassociated funerary objects". "Associated funerary objects" includes objects
- placed with or near individual human remains as part of a death rite or ceremony where the human remains and objects are now in the possession of control of a Federal agency or museum, or
- "exclusively" made for burial purposes or to contain human remains."
"Unassociated funerary objects" are those objects which were places with or near human remains as part of a death rite or ceremony, but the human remains are not presently in the possession or control of a Federal agency or museum.
"Sacred objects" are those ceremonial objects which are needed by traditional Native American religious leaders for the present day practice of traditional Native American religions. This includes both the use of the objects in ceremonies currently conducted by traditional practitioners and instances where the objects are needed to renew ceremonies that are part of a traditional religion.
"Traditional religious leader" is defined as a person "recognized by members of an Indian tribe or Native Hawaiian organization" as an individual who
- is "responsible for performing cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization", or
- exercises "a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe or organization's cultural, ceremonial or religious practices."
"Cultural patrimony" are those objects which
- have "ongoing historical, traditional, or cultural importance central to the Native American group or culture itself", and
- were owned by the tribe, or a subgroup of the tribe such as a clan or band, and could not be sold or given away by an individual.
Museum and Agency Inventories and Summaries
NAGPRA required museums and Federal agencies to complete an item-by-item inventory of human remains and associated funerary objects owned or possessed by them. The deadline for preparation of these museum and agency inventories has long passed. These inventories include information about where the remains and objects came from, their cultural affiliation, if known, and information about how and when each item was acquired by the museum or agency.
In the case of unassociated funerary objects, sacred objects and cultural patrimony, museums and agencies were required to provide a summary of these items and not an object-by-object inventory. The summaries provide general information about the kinds of objects held by the museum or agency, where they were, their cultural affiliation and how and when obtained. Museums and agencies have an on-going obligation to consult with Native American governmental and traditional leaders about the objects included in these summaries.
Repatriation of Cultural Items Possessed By Museums or Agencies
When Must Claims Be Made
There is no time limit for submitting a repatriation claim. However, a claim may not be made after an agency or museum has validly repatriated human remains or cultural items to another tribe, organization, or individual.
Claims for Human Remains and Associated Funerary Objects
Federal agencies and museums must repatriate human remains and associated funerary objects
- Upon request of a descendent of the deceased person, or
- Upon request of a "culturally affiliated" Indian tribe or Native Hawaiian organization.
"Cultural affiliation" means that there is a reasonable connection ("shared group identity") between the present-day tribe or organization making the request and the tribe or group to which the dead person belonged at the time that he or she was living. Cultural affiliation can be
- determined by a museum or Federal agency in its inventory based upon information within its current possession (additional scientific research is not required); or
- proven by a tribe or Native Hawaiian organization.
Many types of evidence can be used to prove cultural affiliation, including "geographical, kinship, biological, archeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion."
A finding of cultural affiliation need not be established with scientific certainty. Instead, the tribe or organization must simply show that it is more likely than not that there is an affiliation based upon all of the evidence presented. It is possible to find cultural affiliation even where there is a gap in the historical record.
Upon request, museums and agencies must provide Indian tribes and Native Hawaiian organizations who may be culturally affiliated with a particular item with documents and information in its possession which might be relevant to a repatriation claim.
Unassociated Funerary Objects, Sacred Objects and Cultural Patrimony
There is a four-step process for repatriating unassociated funerary objects, sacred objects and cultural patrimony.
- The claimant must show that the item claimed is an unassociated funerary object, sacred object or item of cultural patrimony.
- In the case of unassociated funerary objects, cultural affiliation must be determined.
In the case of sacred objects and items of cultural patrimony
- If the claim is made by an individual for a sacred object, that individual must show that he or she is a descendant of the person who owned the object.
- If the claim is made by a tribe or Native Hawaiian organization, the tribe or organization must show that the object was previously owned or controlled by the tribe, organization or a member of the tribe or organization. If the claim is based upon prior ownership or control by a tribal member, the tribe must show that there are no direct descendants of the individual or that the descendants have been notified and have failed to make a claim.
- The tribe, organization or individual must present at least some evidence indicating that the Federal agency or museum did not have the "right of possession" of the items. "Right of possession" means that the object was obtained with the voluntary consent of an individual or group that had the right to sell or transfer the object.
- If the claimant satisfies the requirements of steps 1 through 3, the museum or agency must prove that it has a right of possession in regard to the items in question in order to defeat the repatriation claim.
(In one rare circumstance - where the United States Court of Claims has ruled that use of the "right of possession" definition would be an unconstitutional taking of property without compensation - state or tribal property law would apply to the claim rather than these "right of possession" rules.)
Exceptions to Repatriation
There are two exceptions to the repatriation requirement:
- Where the remains of objects are "indispensable for completion of a specific scientific study, the outcome which would be of major benefit to the United States"; in such case, the items must be returned within 90 days after the completion of the study.
- Where more than one tribe, Native Hawaiian organization or descendant makes a claim and the Federal agency or museum "cannot clearly determine which requesting party is the most appropriate claimant"; in such case, the federal agency or museum may retain the item until the parties agree or a court decides who should receive the items.
When and How Repatriation Takes Place
Repatriation must take place within 90 days of a valid request. A Federal Register notice must be published at least 30 days prior to repatriation. The transfer of items must take place using appropriate procedures which respect traditional customs and practices.
The repatriation provisions in NAGPRA are not meant to limit the general repatriation authority of Federal agencies and museums which may have existed prior to NAGPRA, although there is the potential for conflict between existing laws and NAGPRA. Tribes or organizations also have the option to choose not to repatriate and instead to enter into an agreement regarding how cultural items will be treated by the museum or agency.
Grave Sites and Embedded Cultural Items
What Land Is Covered
NAGPRA establishes certain rules governing grave sites and other cultural items embedded on federal and tribal lands.
"Federal land" is defined as land controlled or owned by the United States, but does not include tribal land.
"Tribal land" is defined to include
- all lands within the boundaries of a reservation, regardless of whether the land is owned by the tribe, Indian individuals or non-Indians,
- all dependent Indian communities, and
- any lands administered for Native Hawaiians pursuant to the Hawaiian Homes Commission Act of 1920 and the Hawaii Statehood Bill.
Whenever anyone wants to intentionally excavate a site for any purpose:
- That party must obtain a permit pursuant to the Archeological Resources Protection Act.
- If the person wants to dig up a site on tribal lands, the tribe (or Native Hawaiian organization) must receive notice and consent to the excavation.
- If the person wants to dig up a site on federal land, the items may be excavated only after notice and consultation with the appropriate tribe or Native Hawaiian organization.
The required notice must
- propose a time and place for meetings and consultation, and
- describe the planned activity, its location, why the agency believes that excavation may occur and the government's proposed treatment and disposition of any items which are to be excavated.
This notice must be sent to:
- any known lineal descendants,
- Indian tribes and Native Hawaiian organizations that are likely to be culturally affiliated with the items at the site,
- any Indian tribe that aboriginally occupied the area where the activity is taking place, and
- any Indian tribe or Native Hawaiian organization that may have a cultural relationship with the embedded items.
Written notification must be followed by a telephone call if the tribe, organization or individual does not respond within 15 days of the notice.
Federal agencies must develop written action plans after consultation, which include the following:
- kinds of objects considered cultural items,
- the information used to decide who should have custody of the items and how many items will be disposed of consistent with that decision,
- the planned care, handling and treatment (including traditional treatment) of cultural items,
- the archeological recording and analysis of items that will take place and reports that will be prepared, and
- how tribes will be consulted at the time of excavation.
Where embedded cultural items have been discovered on federal or tribal lands in connection with another activity, such as construction, mining, logging or agriculture:
- The person who has discovered the items must stop the activity and notify the responsible Federal agency (in the case of federal land) or the appropriate tribe or Native Hawaiian organization (in the case of tribal land). In the case of Alaska Native Claims Settlement Act lands, the Alaska Native corporation or group is the appropriate organization to be notified. If lands are selected by, but not conveyed to, the Alaska Native corporation or group, such land is still owned by the Federal government and considered to be "federal land." When notice is provided to the Federal agency, the agency must promptly notify the appropriate tribe or Native Hawaiian organization. This is followed by the consultation process described above.
- The activity may continue 30 days after the date of the notice to the federal agency, Indian tribe or Native Hawaiian organization, a date that must be certified to by the party receiving the notice. The activity may also resume before 30 days if written agreement is signed by the Indian tribe or Native Hawaiian organization and the Federal agency prior to the end of the 30 day period. The requirement that work be halted if a site is inadvertently discovered must be included in Federal leases and permits.
The regulations also encourage comprehensive agreements between Indian tribes, Native Hawaiian organizations and Federal agencies which would
- "address all Federal agency land management activities that could result in the intentional excavation or inadvertent discovery" of NAGPRA items, and
- establish processes for consultation and determination of custody, treatment and disposition of such items.
"In Situ" Preservation of Sites
The commentary to the regulations recognizes that one goal of NAGPRA is to preserve sites without excavation ("in situ"), and that this should be considered whenever possible. However, "in situ" preservation of sites is not required by NAGPRA or the regulations except where the tribe has not consented to a proposed intentional excavation on tribal lands.
Ownership and Control of Items Discovered on Federal and Tribal Land
Under NAGPRA, Indian tribes, Native Hawaiian organizations or descendants of the deceased will usually have ownership and control over human remains and cultural items which are discovered on federal and tribal lands in the future. In the case of human remains and associated funerary objects, any descendant of the buried person has the first claim of ownership or control of that person's remains and funerary objects associated with the remains. If descendants of the person whose human remains and associated funerary objects have been discovered cannot be determined and in the case of unassociated funerary objects, sacred objects and items of cultural patrimony, NAGPRA establishes the following rules of ownership and control:
- The tribe or Native Hawaiian organization owns or controls all cultural items discovered on tribal land.
- In the case of federal land, the tribe or Native Hawaiian organization with the closest cultural affiliation to the items has ownership or control. Agreements between tribes regarding disputed items are possible and the NAGPRA Review Committee may serve as a mediator if there is an intertribal dispute.
- Where cultural affiliation of the items cannot be established, but the objects are discovered on federal land which the Indian Claims Commission or United States Court of Claims [now known as the United States Court of Federal Claims] has determined to be the aboriginal land of a particular tribe, the tribe with the aboriginal land judgment has the right of ownership and control over the items unless another tribe can show a stronger cultural relationship.
Before transferring ownership or control of embedded cultural items to lineal descendants, tribes or Native Hawaiian organizations, the Federal agency must publish at least two general notices, a week apart, of the proposed disposition in a newspaper circulated in an area where the members of the tribe or organization live. Transfer may not take place until 30 days after the second notice. If completing claimants come forward after notice, repatriation must be determined based upon the above rules of ownership and control.
Penalties and Implementation
NAGPRA prohibits all trafficking in Native American human remains for sale or profit unless the remains have been "excavated, exhumed or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization." This prohibition applies to human remains wrongfully acquired at any time, whether before or after the enactment of NAGPRA.
NAGPRA also prohibits trafficking in funerary objects, sacred objects and items of cultural patrimony obtained in violation of the Act. This provision in NAGPRA applies only to items obtained after the date that NAGPRA was enacted, November 16, 1990. Of course, existing state or federal laws on theft of stolen property would also be available to prevent sale of cultural items that were illegally obtained.
Civil Penalties and Remedies
NAGPRA also provides that the Secretary of Interior may assess civil penalties against museums that do not comply with NAGPRA. A complaint may be filed with the Department of the Interior by any person alleging non-compliance.
In addition, an Indian tribe, Native Hawaiian organization or individual with protected rights under NAGPRA can file a law suit to enforce NAGPRA if there is a violation of the Act.
In the case of specific claims, once a written claim for repatriation has been made and denied, the claiming party may seek review of the denial by a Federal Court. The claiming party also has the option to seek review of the denial by the NAGPRA Review Committee before pursuing a court remedy, although the Review Committee's findings are non-binding. They may be introduced as evidence at any subsequent court proceeding, however.
Tribes also retain any pre-existing legal rights which they may have possessed before NAGPRA. If a museum repatriates an item in good faith, however, it cannot be sued if it has made a mistake.
NAGPRA provides for the appointment of a Review Committee to monitor and review the implementation of the Act. The Review Committee consists of seven members
- three are appointed by the Secretary of the Interior from nominations submitted by Indian tribes, Native Hawaiian organizations and traditional Native American religious leaders (at least two of the three must be traditional Native American religious leaders)
- three are appointed by the Secretary of the Interior from nominations submitted by national museum organizations and scientific organizations; and
- one person is chosen from a list compiled by the other six members.
The Review Committee's functions are to:
- monitor the inventory and identification process;
- upon request, make findings relating to the cultural affiliation and return of cultural items and to help resolve disputes between interested parties;
- compile an inventory of culturally unidentifiable human remains and make recommendations as to an appropriate process for their disposition;
- consult with the Secretary of the Interior in the development of regulations to implement NAGPRA;
- make recommendations as to the future care of repatriated cultural items, and;
- submit an annual report to Congress.
Disposition of Culturally Unidentifiable Human Remains
On March 25, 2010, the Department of Interior issued a final rule regarding the Disposition of Culturally Unidentifiable Human Remains based upon the recommendations of the Review Committee. Pursuant to these regulation, a museum or federal agency must offer to return any "culturally unaffiliated" human remains in its possession that were originally removed from land that is currently tribal land or the aboriginal land of a particular tribe. Before these remains are returned, there must be a consultation process involving all such tribes which must start within 90 days of a request for repatriation by a tribe or an offer by the museum or agency to return culturally unaffiliated human remains. Aboriginal land includes lands recognized by a final judgment of the Indian Claims Commission of the United States Court of Claims, a treaty, Act of Congress or Executive Order. (Most land in the United States has been recognized as aboriginal land through one of these legal mechanisms.) In some cases, the consultation may result in a finding of cultural affiliation. Where this does not happen, it is anticipated that tribes will agree upon a disposition in most cases. If tribes cannot agree, the regulations provide that claims from a tribe from whose tribal land the remains were removed would have the first priority, followed by claims from tribes that are aboriginal to the area. This is similar to the way in which the statute treats human remains discovered and unearthed on tribal or federal land after 1990.
The regulations acknowledge that some of the so-called "culturally unaffiliated remains" may be culturally affiliated with tribes not recognized by the federal government – for example, state-recognized tribes. The regulations permit repatriations to be made to such groups, but do not require them. The regulations also permit museum and federal agencies to rebury the human remains under state or other law if no tribe agrees to accept control. Both of these dispositions may take place only if, after consultation, no federally recognized tribe that could make a claim objects and the Secretary of Interior or his designee so recommends. Finally, the regulations recommend, but do not require, repatriation of culturally unaffiliated funerary objects on the same basis as human remains.