Native American Graves
Protection and Repatriation Act
(NAGPRA)
Jack F. Trope, Executive Director,
Association on American Indian Affairs
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.
NAGPRA –
Legislative History
• Human rights legislation
• Based upon trust relationship
• Compromise between museum, scientific,
Indian communities
NAGPRA –
Who has rights
• Lineal descendants
• Indian tribes
• Native Hawaiian organizations
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
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
NAGPRA – Who Has
Responsibilities
• Museums – federally funded
• Federal agencies (excluding the
Smithsonian which is covered by
its own law)
NAGPRA - Responsibilities
• Item by item inventory of human
remains and associated funerary
objects
• Summaries of unassociated
funerary objects, sacred objects
and cultural patrimony
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
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
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
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)
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.
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
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
NAGPRA –
Intentional Excavations
• Tribal land – tribal consent required
• Federal land – notice and consultation with
tribe
• Party must obtain an ARPA permit
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
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
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
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.
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):
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.
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
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
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.
International Repatriation
• Increased focus on issue by tribes
• Right to repatriation recognized
by the United Nations Declaration
on the Rights of Indigenous
Peoples