For centuries, the skeletal remains of American Indians were removed from their burial sites, studied, catalogued, and relegated to the bins of museums and science labs. NAGPRA addresses the right of the dead to an undisturbed resting place among their own people. It also addresses the right of the living to ensure that their ancestors and their ancestral sacred items are interred with the respect they are due (Morris Udall, 1990).
Since 1906, the United States has taken management authority over the cultural and scientific resources under its jurisdiction. The 1906 Antiquities Act (16 U.S.C. §§431–433) and later the Archaeological Resources Protection Act (ARPA, 16 U.S.C. §§470aa-mm, 1979) established permitting authority for scientific data recovery on federal and Indian lands. The items removed from the ground, mostly Native American human remains and burial items, were to remain under government control and thus were stored largely in government and university repositories. Attempts by tribes to reclaim the remains of their ancestors and tribal property were unsuccessful (Echo-Hawk, 1986). 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 (Onondaga Nation v. Thacher, 61 N.Y.S. 1027 [N.Y. App. Div. 1899]).
At the end of the twentieth century, largely due to pressure brought to bear by Indian activists, and despite opposition by various conservative scholars, the American public and the U.S. government began to recognize the culture of American Indians as meriting respect and protection on a formalized basis. Congress passed the American Indian Religious Freedom Act (AIRFA, 42 U.S.C. §1996, 1994) on August 11, 1978, and the president issued the Sacred Sites Executive Order (E.O. No. 13,007, 61 Fed. Reg. 26771, May 24, 1996), supporting the rights of Native Americans to practice traditional ceremonies. The National Historic Preservation Act (NHPA, 16 U.S.C. §§470a et. seq., 1992) was amended to recognize traditional cultural places meriting listing on the National Register of Historic Places and established Tribal Historic Preservation Officers who could replace state authority on tribal lands. Legislation specifically to address the cultural property rights of Native Americans is the Native American Graves Protection and Repatriation Act (NAGPRA, 25 U.S.C. §§3001–3013, 1990).
After compromises reached on the language and scope of the law by the archaeological, museum, and tribal communities, the NAGPRA legislation received unanimous support in Congress. NAGPRA is a law with four attributes. It comprises property law, Indian law, human rights law, and an administrative process.
NAGPRA as Property Law
NAGPRA enfranchises tribes and Native Americans in the common law of property and Fifth Amendment property rights. The law recognizes that, although human remains are not property and cannot be owned under the common law, descendents have the obligation and right to direct the disposition of their ancestors (Bowman, 1989). Funerary objects, sacred objects, and objects of cultural patrimony removed from tribes and Native American individuals without their permission, that are held in the control of federal agencies and museums that receive federal funds, must be returned to claimants under NAGPRA. If the museum has a lawful chain of ownership and transfer for the item, it may assert the right of possession. Under NAGPRA no taking shall occur.
Protected items in NAGPRA are the human remains of Native Americans and Native Hawaiians and cultural items. Cultural items include funerary objects (items placed with or intended for burials); sacred objects (ceremonial items needed by traditional Native American religious leaders for the practice of traditional religion by present-day adherents); and cultural patrimony (the inalienable items owned by the group that have ongoing historical, traditional, or cultural importance and were considered as such at the time the object was separated from the group).
The parties eligible to make a repatriation claim for NAGPRA-protected items held in the collections of federal agencies or museums are lineal descendents of named individuals with their associated funerary items. Also eligible are federally recognized tribes or Native Hawaiian organizations having a shared group identity with the cultural item when there is no claim of a lineal descendent for human remains, funerary objects, sacred objects, and objects of cultural patrimony. When newly exhumed burials and NAGPRA-protected items are located on federal or Indian land, the priority of claimants is as follows: lineal descendents; then tribal landowners on their tribal land regardless of cultural relationship; culturally affiliated federally recognized tribes and Native Hawaiian organizations on federal land; then federally recognized tribes or Native Hawaiian organizations that are the aboriginal occupants of the area regardless of cultural affiliation, unless another group with standing has a stronger claim of relationship.
NAGPRA as Indian Law
NAGPRA acknowledges the unique relationship between the federal government and tribes and Native Hawaiian organizations (25 U.S.C. §3010). As such, the law requires consultation with federally recognized tribes and with Native Hawaiian organizations on a government-to-government basis at each stage of the process. The NAGPRA process, further described in a following section, resolves years of past land management authority that did not account for the property interests of Native Americans. That NAGPRA is contained within Title 25 of the United States Code, the Indian law section, rather than other options such as Title 16, where cultural property is addressed, reflects the decision of Congress to imbue that law with the generally applicable tenets of Indian law. One such Indian law provision applicable in the NAGPRA process is the absence of a time bar for claims brought to establish title of Indians to human remains of their descendents and to cultural property. (See County of Oneida v. Oneida Indian Nation, 470 U.S. 226 .)
NAGPRA as Human Rights Law
NAGPRA does not provide Native Americans with any greater rights than would otherwise be afforded to those seeking to make claims recognized under the common law and to seek relief from a "taking" under the Fifth Amendment of the Constitution. As such, NAGPRA may be seen as "equal protection" law. Enfranchising Native Americans with property rights due but not historically respected is the essence of human rights law.
NAGPRA as Administrative Process
The NAGPRA process establishes separate means to approach "repatriation" of Native American and Native Hawaiian human remains and cultural items separated from the land and held in museum and federal agency collections, from the immediate determination of "ownership" upon the discovery of human remains and cultural items excavated on federal or Indian lands after the date of the law, November 16, 1990.
Federal agencies and institutions that receive federal funds and have possession of or control over Native American cultural items must summarize their Native American and Native Hawaiian collections and enter into consultations to determine whether federally recognized tribes and Native Hawaiian organizations wish to make claims for the repatriation of items to which they are culturally affiliated. As to human remains and associated funerary objects, the consultation is intended to aid the museums and federal agencies in compiling an itemized inventory, containing decisions on cultural affiliation, such that lineal descendents and culturally affiliated tribes can make claims for repatriation.
Inventories are sent to the National Park Service (NPS), National NAGPRA Program. Summaries are sent directly to all interested tribes as they trigger consultation. Notices of Inventory Completion are published in the Federal Register, as are decisions by the museum or federal agency as to the cultural affiliation of the human remains and associated funerary objects. Based on those decisions, lineal descendents and culturally affiliated tribes can claim the remains and/or items. When tribes or Native Hawaiian organizations come to repatriation agreements with museums or federal agencies as to cultural items in the summary, the museum or agency prepares a Notice of Intent to Repatriate that is sent to NPS for publication in the Federal Register. If there are no competing claims in response to either type of notice in thirty days, on the thirty-first day repatriation—that is transfer of control—can occur. As a practical matter, the claimant group and the museum or federal agency begin consultation on the manner of transfer once they have come to an initial agreement.
Those human remains and funerary objects for which no cultural affiliation determination can be reasonably made are listed in the inventory as culturally unidentifiable. To assist tribes, museums, and federal agencies in making further cultural affiliation determinations, NPS maintains a public access database of culturally unidentifiable Native American human remains and funerary objects in the inventories. Future regulations will direct the eventual disposition of culturally unidentifiable human remains. Until then, guidance may be obtained from the Review Committee.
NAGPRA does not require that science be undertaken to make a cultural affiliation determination, but it does not prohibit science undertaken in consultation with the interested parties. It does allow a museum or federal agency with NAGPRA-protected items in the collection to receive permission from the Secretary of the Interior to retain items until the end of a study that is of major benefit to the United States.
Disputes over repatriation factual issues may be referred to the Review Committee for an advisory opinion. This is not a predicate to court action but provides a means to have the facts examined by an expert neutral panel. Disputes can arise when tribes make competing claims and when the decision of the land manager or museum as to which tribe has the preponderance of evidence in its favor is questioned, or a dispute can arise between a tribe and a museum or federal agency if the claimant disagrees with a decision on cultural affiliation or repatriation. A tribe or Native Hawaiian organization making an initial claim must show (1) they have standing to make a claim, (2) the item is a NAGPRA-protected item, and (3) there is a relationship of shared group identify between the claimant and the item. A museum may then overcome the claim of a tribe if the museum can carry the burden to prove that they have the right of possession (that, under the common law of property, they hold title that began with permission of the initial owner to alienate the item).
NAGPRA requires consultation with tribes and Native Hawaiian organizations prior to the removal of human remains or cultural objects from federal or tribal land, including Hawaiian Homes Commission land. When there is an agreement in place prior to the discovery of a NAGPRA-protected item, the event is called an "intentional excavation." The disposition of newly discovered items follows the agreement. When no agreement is in place, the event is called an "inadvertent discovery," and all work must cease for thirty days while consultation occurs to reach an agreement on disposition. Thus, advance planning is more effective than stopping a project to do remedial decision making. Native American human remains and associated funerary objects that are not claimed remain in federal control pending future regulations on disposition.
Illegal Trafficking in Native American Human Remains and Cultural Items
NAGPRA makes it a crime to traffic in Native American human remains and cultural items (18 U.S.C. §1170). It is illegal to sell, purchase, use for profit, or transport for sale or profit the human remains of a Native American, taken from any location, of any age, unless the actor has the right of possession. Under the common law this means that only the descendent with authority to put the remains into the marketplace may lawfully do so. The same is true of Native American cultural items. Violation of NAGPRA can be committed either by removing the item from federal or Indian lands, including the lands of a Native Hawaiian organization, or by trafficking in items from museum or federal agency collections that are subject to the repatriation provisions. For instance, a museum that holds back a NAGPRA-protected item from the NAGPRA process so that it may be offered for sale at an auction commits an act of trafficking. The first offense is a misdemeanor and the second offense is a felony. The new federal sentencing guidelines heighten the penalties but require a value calculation to determine the severity of the penalty.
NAGPRA has not caused all Native American and Native Hawaiian cultural items to be stripped from the collections of museums. Rather, the institutional knowledge about tribal culture has been enriched through the process of consultation. Post-NAGPRA collection protocols typically involve respectful treatment of the dead. Native Americans and tribes are regularly (although not always) regarded as necessary participants in consultation in the determination of rights to items in collections and as potential owners of human remains and cultural items that may be discovered on the landscape. It is also worth noting that many non-Native museums have profited handsomely from these laws, having received generous subsidies to conduct their inventories. In any case, the process is ongoing and the progress profound.
Bowman, Margaret B. 1989. "The Reburial of Native American Skeletal Remains: Approaches to Resolution of a Conflict." Harvard Environmental Law Review 13, no. 167–208.; Echo-Hawk, Walter. 1986. "Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native American Resources." NYU Review of Legal and Social Change 14, no. 437.; McKeown, C. Timothy, and Sherry Hutt. 2002–2003. "In the Smaller Scope of Conscience: The Native American Graves Protection and Repatriation Act Twelve Years After. UCLA Journal of Environmental Law," 21, no. 153.; Morris Udall, 136 Cong. Rec. E3484 (1990).