CHAPTER 4 NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)
| Jurisdiction | United States |
(Apr 2012)
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)
National Park Service
Washington, D.C.
SHERRY HUTT, J.D., PhD.(forestry/economics), is the program manager for the National NAGPRA Program in the Department of the Interior. She has taught cultural property law and management at the George Washington University, George Mason University, and in the LLM program in Indigenous Peoples Law and Policy at the University of Arizona College of Law. She has published numerous articles and co-authored books on cultural property law, including CULTURAL PROPERTY LAW (2004, American Bar Association), HERITAGE RESOURCES LAW (1992, Wiley), and edited the YEARBOOK OF CUTURAL PROPERTY LAW (2006-2010, Left Coast Press). She has given cultural resource protection training since 1982, for federal agencies, tribes, attorneys and law enforcement agents. Dr. Hutt was a state court judge in Arizona for 17 years and prior to that served as an Assistant United States Attorney where she handled natural and cultural resource cases. She was a trustee of the Heard Museum, in Phoenix. Dr. Hutt was appointed by, then governor, Bruce Babbitt to the first Arizona Archaeology Advisory Commission in 1984, and was awarded the Department of the Interior Conservation Service Award in 1994 for archaeological resource protection efforts.
Introduction and Scope1
The Native American Graves Protection and Repatriation Act (NAGPRA) was passed by a unanimous Congress in 1990, to provide a process for museums and Federal agencies to resolve rights of lineal descendants, Indian tribes and Native Hawaiian organizations2 in the following Native American "cultural items": human remains, funerary objects, sacred objects, and objects of cultural patrimony. Responsibility for administration of the Act is with the Secretary of the Interior.3
There are two parts to the process set forth in NAGPRA. One involves the resolution of long standing issues regarding collections in the possession or control of Federal agencies and institutions that receive Federal funds.4 The other provides for the disposition of Native
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American human remains and cultural items discovered on Federal or tribal lands after the effective date of the Act (November 16, 1990).5
This paper describes the separate NAGPRA compliance processes for collections and for discoveries on Federal and tribal lands after November 16, 1990. It discusses in particular detail the application of NAGPRA when impacts to Federal or tribal land from cultural resource surveys, natural resource development, and other activities result in the discovery of Native American cultural items. While the Federal law does not control discoveries on state or private lands, this article clarifies when new finds on state and private lands fall under the NAGPRA compliance process for collections. Risks, penalties and resolution of noncompliance are also addressed.
Overview of NAGPRA
Since the early 20th century, the United States has taken management authority over the cultural and scientific resources under its jurisdiction. The 1906 Antiquities Act6 and, later, the 1979 Archaeological Resources Protection Act7 required that scientific data recovery on Federal and Indian lands only be undertaken if it were in the public interest and subject to a permit. Under these laws, the items removed from the ground -- many Native American human remains and burial objects -- were to remain under government control. Although not explicitly included in the terms of a permit, typically, excavated items came to be stored in perpetuity in government and university repositories.
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Historically, attempts by Indian tribes to reclaim the remains of their ancestors and tribally-owned property from repositories were unsuccessful.8 When the Onondaga Nation went to court, in 1899, to retrieve the Wampum Belts held by the New York State Museum, they found that courts did not acknowledge the nation as having enforceable property rights.9
By the end of the twentieth century the American public and the United States government began to recognize that the culture of American Indians merited respect and protection on a formalized basis. In 1986, the board of directors of the New York State Museum voted to return the Wampum Belts to the Onondaga, implicitly applying a common law tenet of property ownership. Subsequently, Congress passed the American Indian Religious Freedom Act,10 and President Clinton issued the Sacred Sites Executive Order11 to support the rights of Native Americans to practice traditional ceremonies in their traditional places. In addition, the National Historic Preservation Act12 was amended to recognize that traditional cultural places may be significant for purposes of listing on the National Register of Historic Places,13 and authorize the creation of Tribal Historic Preservation Officers14 to act in place of state authority on tribal lands.
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To specifically address the cultural property rights of Native Americans, Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA).15 Compromises on the language and scope of the law among the archaeological, museum and tribal communities enabled the NAGPRA legislation to receive unanimous support in Congress.
NAGPRA is a law with four attributes. It is property law, Indian law, human rights law, and administrative process. A review of these four aspects of NAGPRA may serve to clarify and simplify an understanding of this law.
NAGPRA as Property Law
NAGPRA enfranchises Native Americans in the exercise of their rights in property afforded by the common law and the Fifth Amendment of the United States Constitution.16 As human remains are not property, and cannot be owned, NAGPRA confirms that descendants of Native American individuals have the obligation and right to direct the disposition of their ancestors.17 As for funerary objects, sacred objects and objects of cultural patrimony separated from tribes and Native American individuals without their permission, and under the control of Federal agencies and museums that receive Federal funds,18 NAGPRA directs that they be returned to qualifying claimants. The required return of the cultural item does not constitute a taking of
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property unless the museum elects to assert a right of possession to the item, and shows that, when the item was separated from the tribe, the transferor had the authority to transfer the item, and did so voluntarily.19
NAGPRA-protected items are the human remains of Native American individuals, who include Indians and Native Hawaiians, and the following cultural items: funerary objects,20 which are items placed with or intended for burials; sacred objects,21 which are ceremonial items needed by traditional Native American religious leaders for the practice of traditional religion by present day adherents; and cultural patrimony,22 which are group-owned, inalienable items having ongoing historical, traditional, or cultural importance, and which were considered as such at the time they were separated from the group. Thus, the law applies to a narrow set of items at the core of Native American cultural identity, and it tracks the common law in the United States dealing with human remains and funerary objects by affording respect to all human remains and burials.23 The age of individual human remains is not dispositive for determining whether or not they are Native American.24
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The parties with standing to make a repatriation claim for NAGPRA-protected items held in the collections of Federal agencies or museums, or newly discovered on Federal or tribal land, are lineal descendants25 of named individuals (for human remains and associated funerary objects, and, in collections, sacred objects), and Native Hawaiian organizations26 and federally recognized Indian tribes.27 As the law reflects the unique government-to-government relationship between the United States and Indian tribes and Native Hawaiian organizations,28 standing is expressly not conferred on any other group, or on any individual who is not a lineal descendant of an identified Native American individual.
Under NAGPRA, a nexus between parties having standing to make a claim for human remains and/or items in museum or Federal agency collections and the human remains or items themselves may be established in one of two ways: (1) culturally or (2) geographically. Where lineal descendants cannot be identified for individual human remains and associated funerary
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objects, and sacred objects, tribes having a shared group identity with such remains and objects may claim them. Only tribes and Native Hawaiian organizations having a shared group identity with objects of cultural patrimony may claim that category of cultural item. Shared group identity means a cultural affiliation.29
Native American human remains and associated funerary objects in museum and Federal agency collections that, upon reasonable belief, cannot be identified as having a cultural affiliation to a tribe or Native Hawaiian organization are "culturally unidentifiable."30 Tribes may claim culturally unidentifiable Native American human remains and funerary objects in collections if the remains were removed from their tribal land or, for land that was not tribal land at the time of removal, if the remains were removed from their aboriginal lands.31 Disposition of culturally unidentifiable human remains through transfer to non-federally recognized Indian groups or reburial by the museum or Federal agency is permissible under certain circumstances, but it requires the approval of the Secretary of the Interior.32
When Native American human remains and NAGPRA-protected items are discovered on Federal land33 after November 16, 1990, the priority of claim is established...
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