Native American Graves Protection and Repatriation Act

Susquehannock artifacts on display at the State Museum of Pennsylvania, 2007

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 passed on 16 November 1990 requiring federal agencies and institutions that receive federal funding^[1] to return Native American "cultural items" to their respective peoples. Cultural items include human remains, funerary objects, sacred objects, and objects of cultural patrimony. In addition, the Act establishes a program of federal grants to assist in the repatriation process and authorizes the Secretary of the Interior to assess civil penalties on museums that fail to comply. It is now the strongest federal legislation pertaining to aboriginal remains and artifacts.

Background reasons

There were many reasons from both Native American tribes and the United States Congress that served as the impetus for passing this legislation. NAGPRA addresses long-standing tribal claims and it applies exclusively to human remains and cultural objects. This human rights legislation is open to liberal interpretation: What is sacred? NAGPRA was enacted primarily at the insistence and by the direction of members of Native American nations.^[2]

Tribal reasoning

Tribes had many reasons based in law that made legislation concerning tribal grave protection and repatriation necessary.

• State Statutory Law: Historically, states only regulated and protected marked graves. Native American graves were oftentimes unmarked and therefore did not receive the protection provided by these statutes.
• Common Law: The legal system that developed over the course of settling the United States was primarily formed by the colonizing population. This law did not often take into account the unique Native American practices concerning graves and other burial practices. This extended to not accounting for government actions against Native Americans such as removal, the relationship that Native Americans as a people maintain with their dead, and many myths surrounding the possession of graves.
• Equal Protection: Native Americans, as well as others, often found that the remains of Native American graves were treated differently than the dead of other races.
• First Amendment: 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.
• Sovereignty 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.
• Treaty: From the beginning of the US government and tribe relations, the tribe maintained rights unless specifically divested to the US government in a treaty. The US government does not have the right to disturb Native American graves or their dead because it has not been granted by any treaty.

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.^[3] 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 the descendants cannot be identified, then those remains and objects, along with unassociated funerary or sacred object and objects of cultural patrimony belong to the tribe on whose lands the remains were found or the tribe having the closest relationship to them.^[3]

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."^[4]

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.^[5]

Since the legislation has been passed, the human remains of approximately 32 thousand individuals have been returned to their respective tribes. Nearly 670 thousand funerary objects, 120 thousand unassociated funerary objects, and 3500 sacred objects have been returned.^[5] However, NAGPRA also serves as somewhat of a limitation, sometimes restricting excavation of Indian remains or cultural objects, therefore limiting the possible study of these objects.^[6]

Map of Native American Reservations

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 US. In many cases, NAGPRA helped stimulate interactions of archaeologists and museum professionals with Native Americans that were felt to be constructive by all parties.

Origins

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".^[7] In the early 1970s, Pearson was appalled that the skeletal remains of Native Americans were treated differently than 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 Gov. 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 U.S. 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.^[7][8] Pearson and other activists were featured in the 1995 BBC documentary Bones of Contention.^[9]

Historical context

The late 19th century was one of the roughest periods in Native American history in regards to the loss of cultural artifacts and land. The collection of Native American cultural and ancestral assets was prompted by the founding of museums and the competition between them for artifacts as demand increased. 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. Collecting became hasty in the 1880s and 1890s and was often done by untrained adventurers. As of the year 1990 federal agencies reported having 14,500 deceased Natives in their possession which had accumulated since the late 19th century. Many institutions have claimed to have used the remains of Native Americans for anthropological research, such as comparative racial studies. Institutions such as the Army Medical Museum sought to demonstrate racial characteristics to prove the inferiority of Native Americans.^[10]

Return to the Earth project

Return to the Earth is an inter-religious project whose goal is to inter unidentified remains in regional burial sites.^[11] Over 110,000 remains that cannot be associated with a particular tribe are held in institutions across the United States, as of 2006.^[12] 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.^[12][13]

Issues of controversy

Archeologists are concerned that they are being prevented from studying ancient remains, which cannot be traced to any historic tribe, many of which migrated to their territories at the time of European encounter within 100–500 years from other locations.^[14]

Kennewick Man

Compliance with the legislation can be complicated. One example of controversy is that of Kennewick Man, a skeleton found on July 28, 1996 near Kennewick, Washington. The Umatilla, Colville, Yakima, and Nez Perce tribes have each claimed Kennewick Man as their ancestor, and sought permission to rebury him. Kennewick, Washington is part of the ancestral land of the Umatilla.

Archaeologists claim that because of Kennewick Man's great age, there is insufficient evidence to connect him to modern tribes. The great age^[15] of his remains makes this discovery valuable scientifically. As archaeologists have determined that the man is of indigenous origin, the law gives the tribes of the geographic area a claim to the remains.^[16]

International policy

The issues that NAGPRA addresses have importance on the international stage as well. For example, in 1995 the United States signed an agreement with El Salvador in order to protect all pre-Columbian artifacts from leaving the region. Soon after, it signed similar agreements with Canada, Peru, Guatemala, and Mali and showed itself to be a leader in implementing the 1970 UNESCO Convention. The UNESCO convention saw its membership grow to 86 countries by 1997, and 193 by 2007. UNESCO seems to be having an impact on the illicit antiquities trade. While this is not an easy business to track, some stir among antiquities traders in the form of articles denouncing the agreements points to the positive effect these agreements seem to be having.^[17]

Distinctive Marking of Cultural Property, Hague Convention

An international predecessor of the UNESCO Convention and NAGPRA is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.^[18] The Hague Convention was the first international convention to specifically focus on preserving cultural heritage from the devastation of war.

Minik Wallace (Kalaallit) in New York, 1897

An example of the sort of acts done in the name of academia before any of these conventions and agreements occurred in 1897. On September 30, Lieutenant Robert Peary brought six Inuit people from Greenland to the American Museum of Natural History in New York. The Inuit were brought to New York at the request of anthropologist Fraz Boas, in order to "obtain leisurely certain information which will be of the greatest scientific importance" regarding Inuit culture.^[19] About two weeks after arrival at the museum, all six of the Inuit people became sick with colds and fever. They began to perform their tribal healing process and were mocked for their bizarre behavior. These people became a form of entertainment for the Americans. By November 1, 1897, they were admitted to the Bellevue Hospital Center with tuberculosis. In February, the first Inuit died and shortly after that two more followed. By the time the sickness had run its course, there were only two survivors, one of whom, Minik, was adopted by a superintendent of the museum, while the other, Uissakassak, returned to his homeland in Greenland. Later, after being lied to and being told that his father Qisuk had received a proper Inuit burial, Minik shockingly found his father's skeleton on display in the museum. In 1993, the museum finally agreed to return the four Inuit skeletons to Greenland for proper burial. Representatives of the American Museum of Natural History arrived in Greenland in 1993 to return and bury the remains of the four Inuit who died in New York, and the reburial was conducted by a Lutheran pastor at his church in Qaanaaq. Local Inuit, including descendants of the deceased, had little interest in reburying the remains themselves. At least some local Inuit felt that the burial was more for the benefit of the Christian representatives of the museum, and that the remains could have just as appropriately been kept in New York.^[20] This case shows the complexity of reburial and repatriation cases, and emphasizes the need for examination on a case by case basis and engaged conversation with all of the affected parties.

Protecting cultural property

In the US, the ARPA (Archaeological Resources Protection Act) protects archeological sites on federally owned lands, although sites owned privately are at the disposal of the owners. This organization buys archeological sites to conserve the cultural property located thereon. Other countries do not have an organization like this and their governments use three basic types of laws to protect their cultural remains.

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

Total export restriction 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.

Many countries, such as Mexico, use national ownership laws to declare national ownership for all cultural artifacts. These laws cover control of artifacts that have not even been discovered yet.

See also

• American Indian Religious Freedom Act
• National Museum of the American Indian
• Visual arts by indigenous peoples of the Americas: Cultural sensitivity and repatriation

Notes

1. ^ The Smithsonian Institution is exempt from this act, but rather must comply with similar requirements under the National Museum of the American Indian Act of 1989.
2. ^ Carrillo, Jo (1998). Readings in American Indian Law: Recalling the Rhythm of Survival Temple University Press, Philadelphia. ISBN 1-56639-582-8
3. ^ ^{a b} Canby Jr., William C. American Indian Law. St. Paul: West, 2004. Print. Page 276.
4. ^ http://academic.udayton.edu/Race/03justice/NALR007.htm
5. ^ ^{a b} http://www.nps.gov/history/Nagpra/FAQ/INDEX.HTM
6. ^ Tom, Georgina. "NAGPRA - Overview and Controversy." 12 Dec 2007. Web. 10 Nov 2009. <http://www2.hawaii.edu/~gtom/NAGPRA-%20Overview%20&%20Controversy.pdf>.
7. ^ ^{a b} Gradwohl, D. M.; J.B. Thomson and M.J. Perry (2005). Still Running: A Tribute to Maria Pearson, Yankton Sioux. Special issue of the Journal of the Iowa Archeological Society. 52. Iowa City: Iowa Archeological Society. 
8. ^ Peason, Maria D. (2000). "Give Me Back My People's Bones: Repatriation and Reburial of American Indian Skeletal Remains in Iowa". In G. Bataille, D.M. Gradwohl, C.L.P. Silet. Perspectives on American Indians in Iowa- An Expanded Edition. Iowa City: University of Iowa Press. pp. 131–141. 
9. ^ "Bones of Contention". British Broadcasting Corp.. 1995. http://www.bbcactive.com/BroadCastLearning/asp/catalogue/productdetail.asp?productcode=21733. Retrieved 1 December 2009. 
10. ^ Carrillo, Jo, ed. Readings In American Indian Law. Temple University Press, 1998. Pg 169.
11. ^ "Return to the Earth". Religions for Peace. http://www.return2theearth.org. Retrieved 2008-04-24. "Mission: The Return to the Earth project supports Native Americans in burying unidentifiable ancestral remains now scattered across the United States and enables a process of education and reconciliation between Native and Non-Native peoples." 
12. ^ ^{a b} "Return to the Earth". Mennonite Central Committee. Archived from the original on 2006-11-20. http://web.archive.org/web/20061120234305/http://www.mcc.org/news/news/2006/2006-04-19_returntotheearth.html. Retrieved 2007-04-13. 
13. ^ "Cheyenne Cultural Center". City of Clinton, Oklahoma. Archived from the original on 2007-04-07. http://web.archive.org/web/20070407091455/http://www.clintonokla.org/entertainment/cheyennecenter.htm. Retrieved 2007-04-13. 
14. ^ [ GEORGE JOHNSON, "Indian Tribes' Creationists Thwart Archeologists"], New York Times, 22 October 1996, accessed 19 June 2011
15. ^ Custred, Glynn (2000). "The Forbidden Discovery of Kennewick Man". Academic Questions 13 (3): 12–30. doi:10.1007/s12129-000-1034-8. 
16. ^ McManamon, F.P. Kennewick Man. National Park Service Archeology Program. May 2004 (retrieved 6 May 2009)
17. ^ Messenger, Phyllis Mauch. The Ethics of Collecting Cultural Property Whose Culture? Whose Property? New York: University of New Mexico, 1999.
18. ^ http://www.icomos.org/hague/
19. ^ Thomas, David H. Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity. p.78. New York: Basic Books
20. ^ Thomas, David H. Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity. pp. 218-9. New York: Basic Books

Further reading

• Fine-Dare, Kathleen S., Grave Injustice: The American Indian Repatriation Movement and NAGPRA, University of Nebraska Press, 2002, ISBN 0-8032690-8-0.
• Jones, P., Respect for the Ancestors: American Indian Cultural Affiliation in the American West, Bauu Press, Boulder, CO. ISBN 0-9721349-2-1.

External links

• NAGPRA information from the National Park Service
  • Summary of NAGPRA laws from the National Park Service