The Native American Graves Protection and Repatriation Act (NAGPRA), , is a United States federal law enacted on November 16, 1990.
The Act includes three major sets of provisions. The "repatriation" provisions of the Act require federal agencies and institutions that receive federal fundingThe 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. to return Native American "cultural items" in their possession or control 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's "disposition" provisions establish procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands, which includes private and state lands within the exterior boundary of an Indian reservation. These provisions do not apply to discoveries or excavations on non-federal or tribal lands, but the repatriation provisions do apply to Native American cultural items if they come under the control of an institution that receives federal funding.
NAGPRA also 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. In the original statute penalties for a first offense could reach 12 months imprisonment and a $100,000 fine. The statute was amended in 2022 to increase the penalty for a first conviction for trafficking Native American human remains from 12 months imprisonment to one year and one day (a felony) and for a subsequent conviction from five years to ten years. An initial conviction for trafficking of Native American cultural items remains a misdemeanor (imprisonment of up to one year), but the penalty for a subsequent conviction was likewise changed from five to ten years.
The Department of the Interior revised the regulations implementing NAGPRA in 2024 to clarify steps for its implementation. The revised regulations, which went into effect on January 12, 2024, state "...museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations."
Background The intent of the NAGPRA legislation is to address long-standing claims by federally recognized tribes for the return of human remains and cultural objects unlawfully obtained from pre-contact, post-contact, former, and current Native American homelands. Interpretation of human and Indigenous rights, prehistoric presence, cultural affiliation with antiquities, and the return of remains and objects can be controversial and contested. It includes provisions that delineate the legal processes by which museums and federal agencies are required to return certain Native American cultural items—human remains, gravesite materials, and other objects of cultural patrimony—to proven lineal descendants, culturally-related Native American tribes, and Native Hawaiian groups.
Outcomes of NAGPRA repatriation efforts are slow and cumbersome, leading many tribes to spend considerable effort documenting their requests; collections' holders are obliged to inform and engage with tribes whose materials they may possess. NAGPRA was enacted primarily at the insistence and by the direction of members of Native American nations.Carrillo, Jo (1998). Readings in American Indian Law: Recalling the Rhythm of Survival Temple University Press, Philadelphia, Pennsylvania. .
Tribal concerns 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 often unmarked and did not receive the protection provided by these statutes. Common 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. Equal Protection: Native Americans, as well as others, often found that the remains of Native American graves were treated differently from 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 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.
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.Canby Jr., William C. (2004). American Indian Law in a Nutshell. St. Paul: West, p. 276. 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 lineal descendants cannot be identified, then those remains and objects, along with associated funerary and sacred objects, and objects of cultural patrimony belong to the tribe on whose lands the remains were found or the tribe having the closest known relationship to them. Tribes find the burden of proof is on them, if it becomes necessary to demonstrate a cultural relationship that may not be well-documented or understood. Nowhere has this issue been more pronounced than in California, where many small bands were extinguished before they could be recognized, and only a handful have obtained federal recognition as Native Americans and descendants of Native American bands.
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."
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.
Since the legislation passed, the human remains of approximately 32,000 individuals have been returned to their respective tribes. Nearly 670,000 funerary objects, 120,000 unassociated funerary objects, and 3,500 sacred objects have been returned.
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 mass 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 United States. In many cases, NAGPRA helped stimulate interactions of archaeologists and museum professionals with Native Americans that were felt to be constructive by all parties.
History
Cultural exploitation