Presentation on theme: "Native American Graves Protection and Repatriation Act (NAGPRA)"— Presentation transcript:
1Native American Graves Protection and Repatriation Act (NAGPRA) Jack F. Trope, Executive Director, Association on American Indian Affairs
2NAGPRA Applies in three contexts – (1) repatriation of human remains and cultural items from museums andfederal agencies,(2) protection of burial sites and culturalitems located on federal and triballand, and(3) trafficking in Native Americanhuman remains and cultural items.
3NAGPRA – Legislative History Human rights legislationBased upon trust relationshipCompromise between museum, scientific, Indian communities
4NAGPRA – Who has rights Lineal descendants Indian tribes Native Hawaiian organizations
5NAGPRA – DefinitionsAssociated funerary objects – Objects made exclusively for burial purposes or that are associated with specific human remains in the custody of the agency or museumUnassociated funerary objects – Objects removed from a burial site where the human remains are not in the custody of the agency or museum
6NAGPRA – Definitions (cont.) Sacred objects – Ceremonial objects needed for the practice of traditional Native American religions by present day religious leadersObjects 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
7NAGPRA – Who Has Responsibilities Museums – federally fundedFederal agencies (excluding the Smithsonian which is covered by its own law)
8NAGPRA - Responsibilities Item by item inventory of human remains and associated funerary objectsSummaries of unassociated funerary objects, sacred objects and cultural patrimony
9NAGPRA - RepatriationHuman remains and associated funerary objects must be repatriated to direct descendants and culturally affiliated tribesCultural affiliation – relationship of shared group identity which can be reasonably traced between a present day tribe and an identifiable earlier group
10NAGPRA - RepatriationCultural affiliation determined through inventory/summary or based on evidence submitted by a tribe/NHOTypes of evidence may include geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional and historical evidence
11NAGPRA - RepatriationRecent 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 territoryCulturally affiliated tribes that are not federally recognized may repatriate if no federally recognized tribe who could make a claim objects
12NAGPRA - RepatriationRepatriation of unassociated funerary objects, sacred objects and cultural patrimony – a 4 step process1. Show that the item meets the definition for one of the categories2. 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)
13NAGPRA - Repatriation3. 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.
14NAGPRA – What types of sites are covered Sites that contain human remains or Native cultural itemsCultural items include funerary objects (associated and unassociated), sacred objects, and cultural patrimony
15NAGPRA – 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
16NAGPRA – Intentional Excavations Tribal land – tribal consent requiredFederal land – notice and consultation with tribeParty must obtain an ARPA permit
17NAGPRA – 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
18NAGPRA – 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 informationAgencies should also seek to identify traditional religious leaders
19NAGPRA – Possible outcomes Commentary to the regulations states that “in situ” preservation of sites should be considered wherever possibleBut 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
20NAGPRA – Action PlansWhere 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.
21NAGPRA – Ownership/Control Rules for Remains/Objects Unearthed on Federal/Tribal lands Human remains and associated funerary objects: Lineal descendentsUnassociated funerary objects, sacred objects and cultural patrimony (or if no lineal descendents determined):
22NAGPRA – Ownership/Control Rules for Remains/Objects Unearthed on Federal/Tribal lands (cont.) Tribe or NHO with the closest cultural affiliation,The tribe/NHO on whose land the object or remains were foundTribe 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.
23NAGPRA – 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
24NAGPRA – TraffickingProhibits trafficking in human remains without consent of the next of kin, tribe or NHOProhibits trafficking in cultural items if obtained in violation of the Act
25NAGPRA – 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.
26International Repatriation Increased focus on issue by tribesRight to repatriation recognized by the United Nations Declaration on the Rights of Indigenous Peoples