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Native American Graves Protection and Repatriation Act

The Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048, is a United States federal law enacted on November 16, 1990.

Long title

An Act to provide for the protection of Native American graves, and for other purposes.

NAGPRA

the 101st United States Congress

November 16, 1990

101-601

104 Stat. 3048

25 U.S.C.: Indians

25 U.S.C. ch. 32 § 3001 et seq.

The Act requires federal agencies and institutions that receive federal funding[1] to return Native American "cultural items" to lineal descendants and culturally affiliated American Indian tribes, Alaska Native villages, and Native Hawaiian organizations. Cultural items include human remains, funerary objects, sacred objects, and objects of cultural patrimony. A program of federal grants assists in the repatriation process and the Secretary of the Interior may assess civil penalties on museums that fail to comply.


NAGPRA also establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands. While these provisions do not apply to discoveries or excavations on private or state lands, the collection provisions of the Act may apply to Native American cultural items if they come under the control of an institution that receives federal funding.


NAGPRA makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act. Penalties for a first offense may reach 12 months imprisonment and a $100,000 fine.


The Department of the Interior amended NAGPRA in 2023 to clarify steps for its implementation. The amendment, which went into effect on January 12, 2024, states "...museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations."[2]

State : Historically, states only regulated and protected marked graves. Native American graves were often unmarked and did not receive the protection provided by these statutes.

Statutory Law

: The colonizing population formed much of the legal system that developed over the course of settling the United States. This law did not often take into account the unique Native American practices concerning graves and other burial practices. It did not account for government actions against Native Americans, such as removal, the relationship that Native Americans as different peoples maintain with their dead, and sacred ideas and myths related to the possession of graves.

Common Law

: Native Americans, as well as others, often found that the remains of Native American graves were treated differently from the dead of other races.

Equal Protection

: As in most racial and social groups, Native American burial practices relate strongly to their religious beliefs and practices. They held that when tribal dead were desecrated, disturbed, or withheld from burial, their religious beliefs and practices are being infringed upon. Religious beliefs and practices are protected by the First Amendment.

First Amendment

Rights: Native Americans hold unique rights as sovereign bodies, leading to their relations to be controlled by their own laws and customs. The relationship between the people and their dead is an internal relationship, to be understood as under the sovereign jurisdiction of the tribe.

Sovereignty

: From the beginning of the U.S. government and tribe relations, the tribe maintained rights unless specifically divested to the U.S. government in a treaty. The U.S. government does not have the right to disturb Native American graves or their dead, because it has not been granted by any treaty.

Treaty

History[edit]

Cultural exploitation[edit]

The late 19th century was one of the most difficult periods in Native American history regarding the loss of cultural artifacts and land. With the founding of museums and scholarly studies of Native American peoples increasing with the growth of anthropology and archeology as disciplines, private collectors and museums competed to acquire artifacts, which many Native Americans considered ancestral assets, but others sold. This competition existed not only between museums such as the Smithsonian Institution (founded in 1846) and museums associated with universities, but also between museums in the United States and museums in Europe. In the 1880s and 1890s, collecting was done by untrained adventurers. As of the year 1990, federal agencies reported having the remains of 14,500 deceased Natives in their possession, which had accumulated since the late 19th century. Many institutions said they used the remains of Native Americans for anthropological research, to gain more information about humans. At one time, in since discredited comparative racial studies, institutions such as the Army Medical Museum sought to demonstrate racial characteristics to prove the inferiority of Native Americans.[9]

Residential and commercial developments[edit]

Residential and commercial development was a driving force in the desecration of many Native American burial sites, particularly in the 20th century with the expansion of suburbs and urban sprawl. For example, in Wana the Bear v. Community Construction (1982), two-hundred Miwok ancestral remains were bulldozed in the development of a residential area in Stockton, California. A descendant of the people, Wana the Bear, attempted to prevent further desecration by arguing that the site should continue to be protected as a cemetery. The California Courts of Appeal sided with the construction company, which finished in its destruction of the burial grounds for residential development.[10][11]

Maria Pearson[edit]

Maria Pearson is often credited with being the earliest catalyst for the passage of NAGPRA legislation; she has been called "the Founding Mother of modern Indian repatriation movement" and the "Rosa Parks of NAGPRA".[12] In the early 1970s, Pearson was appalled that the skeletal remains of Native Americans were treated differently from white remains. Her husband, an engineer with the Iowa Department of Transportation, told her that both Native American and white remains were uncovered during road construction in Glenwood, Iowa. While the remains of 26 white burials were quickly reburied, the remains of a Native American mother and child were sent to a lab for study instead. Pearson protested to Governor Robert D. Ray, finally gaining an audience with him after sitting outside his office in traditional attire. "You can give me back my people's bones and you can quit digging them up", she responded when the governor asked what he could do for her. The ensuing controversy led to the passage of the Iowa Burials Protection Act of 1976, the first legislative act in the United States that specifically protected Native American remains.


Emboldened by her success, Pearson went on to lobby national leaders, and her efforts, combined with the work of many other activists, led to the creation of NAGPRA.[12][13] Pearson and other activists were featured in the 1995 BBC documentary Bones of Contention.[14]

Slack Farm and Dickson Mounds[edit]

The 1987 looting of a 500-year-old burial mound at the Slack Farm in Kentucky, in which human remains were tossed to the side while relics were stolen, made national news and helped to galvanize popular support for protection of Native American graves.[15][16] Likewise, several protests at the Dickson Mounds site in Illinois, where numerous Indian skeletons were exposed on display, also increased national awareness of the issue.[17]

Return to the Earth project[edit]

Return to the Earth is an inter-religious project whose goal is to inter unidentified remains in regional burial sites.[25] Over 110,000 remains that cannot be associated with a particular tribe are held in institutions across the United States, as of 2006.[26] The project seeks to enable a process of reconciliation between Native and non-Native peoples, construct cedar burial boxes, produce burial cloths and fund the repatriation of remains. The first of the burial sites is near the Cheyenne Cultural Center in Clinton, Oklahoma.[26][27]

The , which has more than 5000 human remains; some of these may belong to the Seminole Tribe of Florida.[28]

Smithsonian National Museum of Natural History

in Manhattan, New York is estimated to hold more than 1900 remains.

American Museum of Natural History

in Chicago is estimated to hold more than 1000 remains.

The Field Museum

The (previously the Ohio Historical Society) is estimated to hold more than 7100 remains.

Ohio History Connection

Harvard University's is estimated to hold more than 6100 remains.

Peabody Museum of Archaeology and Ethnology

is estimated to hold more than 7500 remains.

Illinois State Museum

is estimated to hold more than 4800 remains.[29]

Indiana University

The at the University of California, Berkeley is estimated to hold more than 9000 remains.[30]

Phoebe A. Hearst Museum of Anthropology

The holds at least 271 individuals’ remains and 539 funerary objects with almost half the remains being from Wyandotte County.[31]

University of Kansas

The discovered dozens of remains in collections on campus in March 2022.[32]

University of North Dakota

holds 5804 human remains and an additional 692,500 potential cultural items such as artifacts, animal bone, and samples on 21 of its 23 campuses.[33][34][35]

California State University System

The has 252 ancestral remains and 9748 known funerary objects.[36]

South Carolina Institute of Archaeology and Anthropology

The in Charleston, South Carolina, has 80 remains after repatriating two.[36]

Charleston Museum

Institutions with non-repatriated remains:

Related State Laws[edit]

Cal NAGPRA (Assembly Bill (978) is an act created by the state of California which was signed into law in 2001. The act was created to implement the same repatriation expectations for state-funded institutions, museums, repositories, or collections as those federally supported through NAGPRA. Cal NAGPRA also supports non-federally recognized tribes within California that were exempt from legal rights to repatriation under the federal NAGPRA act.

Selective export control laws control the trade of the most important artifacts while still allowing some free trade. Countries that use these laws include Canada, , and the United Kingdom.

Japan

Total laws are used by some countries to enact an embargo and completely shut off export of cultural property. Many Latin American and Mediterranean countries use these laws.

export restriction

Other countries, such as , use national ownership laws to declare national ownership for all cultural artifacts. These laws cover control of artifacts that have not been discovered, to try to prevent looting of potential sites before exploration.

Mexico

American Indian Religious Freedom Act

National Museum of the American Indian

Tribal Historic Preservation Officer

Visual arts by Indigenous peoples of the Americas: Cultural sensitivity and repatriation

Fine-Dare, Kathleen S., Grave Injustice: The American Indian Repatriation Movement and NAGPRA, University of Nebraska Press, 2002,  0-8032-6908-0.

ISBN

Jones, P., Respect for the Ancestors: American Indian Cultural Affiliation in the American West, Bauu Press, Boulder, Colorado.  0-9721349-2-1.

ISBN

McKeown, C. T., In the Smaller Scope of Conscience: The Struggle for National Repatriation Legislation, 1986–1990, University of Arizona Press, 2012,  0816526877.

ISBN

Redman, Samuel J. Bone Rooms: From Scientific Racism to Human Prehistory in Museums. Cambridge, Massachusetts: Harvard University Press, 2016,  0674660412.

ISBN

Archived July 19, 2006, at the Wayback Machine.

NAGPRA information from the National Park Service

(PDF). U.S. GAO: Office of Public Affairs. U.S. Government Accountability Office. July 10, 2010. OCLC 651015196. Archived (PDF) from the original on January 8, 2012.

"Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act"

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Summary of NAGPRA laws from the National Park Service