Native American Graves Protection and Repatriation Act - Description

Description

The Native American Graves Protection and Repatriation Act is a law that establishes the ownership of cultural items excavated or discovered on federal or tribal land after November 16, 1990. The act also applies to land transferred by the federal government to the states under the Water Resources Department Act. However, the provisions of the legislation do not apply to private lands. The Act states that Native American remains and associated funerary objects belong to lineal descendants. If lineal descendants cannot be identified, then those remains and objects, along with associated funerary and sacred objects, and objects of cultural patrimony belong to the tribe on whose lands the remains were found or the tribe having the closest known relationship to them. Tribes find the burden of proof is on them, if it becomes necessary to demonstrate a cultural relationship that may not be well-documented or understood. Nowhere has this issue been more pronounced than in California, where many small bands were extinguished before they could be recognized, and only a handful, even today, have obtained federal recognition as Native Americans and descendants of Native American bands.

Congress attempted to "strike a balance between the interest in scientific examination of skeletal remains and the recognition that Native Americans, like people from every culture around the world, have a religious and spiritual reverence for the remains of their ancestors."

The act also requires each federal agency, museum, or institution that receives federal funds to prepare an inventory of remains and funerary objects and a summary of sacred objects, cultural patrimony objects, and unassociated funerary objects. The act provides for repatriation of these items when requested by the appropriate descendant of the tribe. This applies to remains or objects discovered at any time, even before November 16, 1990.

Since the legislation passed, the human remains of approximately 32,000 individuals have been returned to their respective tribes. Nearly 670,000 funerary objects, 120,000 unassociated funerary objects, and 3,500 sacred objects have been returned. NAGPRA serves as a limitation, sometimes restricting excavation of American Indian remains and cultural objects, thereby potentially limiting the possible study of these objects.

The statute attempts to mediate a significant tension that exists between the tribes' communal interests in the respectful treatment of their deceased ancestors and related cultural items and the scientists' individual interests in the study of those same human remains and items. The act divides the treatment of American Indian human remains, funerary objects, sacred objects, and objects of cultural patrimony into two basic categories. Under the inadvertent discovery and planned excavation component of the act and regulations, if federal officials anticipate that activities on federal and tribal lands after November 16, 1990 might have an effect on American Indian burials—or if burials are discovered during such activities—they must consult with potential lineal descendants or American Indian tribal officials as part of their compliance responsibilities. For planned excavations, consultation must occur during the planning phase of the project. For inadvertent discoveries, the regulations delineate a set of short deadlines for initiating and completing consultation. The repatriation provision, unlike the ownership provision, applies to remains or objects discovered at any time, even before the effective date of the act, whether or not discovered on tribal or federal land. The act allows archaeological teams a short time for analysis before the remains must be returned. Once it is determined that human remains are American Indian, analysis can occur only through documented consultation (on federal lands) or consent (on tribal lands).

A criminal provision of the Act prohibits trafficking in Native American human remains, or in Native American "cultural items." Under the inventory and notification provision of the act, federal agencies and institutions that receive federal funds are required to summarize their collections that may contain items subject to NAGPRA. Additionally, federal agencies and institutions must prepare inventories of human remains and funerary objects. Under the act, funerary objects are considered "associated" if they were buried as part of a burial ceremony with a set of human remains still in possession of the federal agency or other institution. "Unassociated" funerary objects are artifacts where human remains were not initially collected by—or were subsequently destroyed, lost, or no longer in possession of—the agency or institution. Consequently, this legislation also applies to many Native American artifacts, especially burial items and religious artifacts. It has necessitated massive cataloguing of the Native American collections in order to identify the living heirs, culturally affiliated Indian tribes, and Native Hawaiian organizations of remains and artifacts. NAGPRA has had a dramatic effect on the day-to-day practice of archaeology and physical anthropology in the United States. In many cases, NAGPRA helped stimulate interactions of archaeologists and museum professionals with Native Americans that were felt to be constructive by all parties.