An Introduction to the Native American Graves Protection and Repatriation Act (NAGPRA)
Francis P. McManamon
2003

Purposes and Requirements

The Native American Graves Protection and Repatriation Act (Public Law 101-601; 25 U.S.C. 3001-3013) describes the rights of Native American lineal descendants, Indian tribes, and Native Hawaiian organizations with respect to the treatment, repatriation, and disposition of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony, referred to collectively in the statute as cultural items, with which they can show a relationship of lineal descent or cultural affiliation. The law has two major purposes.

1. Sections 5-7 require that Federal agencies and museums receiving federal funds inventory holdings of Native American human remains and funerary objects and provide written summaries of other cultural items. The agencies and museums must consult with Indian Tribes and Native Hawaiian organizations to attempt to reach agreements on the repatriation or other disposition of these remains and objects. Once lineal descent or cultural affiliation has been established, and in some cases the right of possession also has been demonstrated, lineal descendants, affiliated Indian Tribes, or affiliated Native Hawaiian organizations normally make the final determination about the disposition of cultural items. Disposition may take many forms from reburial to long term curation, according to the wishes of the lineal descendent(s) or culturally affiliated Tribe(s).
2. The second major purpose of the statute is to provide greater protection for Native American burial sites and more careful control over the removal of Native American human remains, funerary objects, sacred objects, and items of cultural patrimony on Federal and tribal lands. Section 3 of NAGPRA requires that Indian tribes or Native Hawaiian organizations be consulted whenever archeological investigations encounter, or are expected to encounter, Native American cultural items or when such items are unexpectedly discovered on federal or tribal lands. NAGPRA also requires that any excavation or removal of any such items also must be done under procedures required by the Archaeological Resources Protection Act (Sec. 3 (c)(1)). This NAGPRA requirement is likely to encourage the in situ preservation of archaeological sites, or at least the portions of them that contain burials or other kinds of cultural items. In many situations, it will be advantageous for Federal agencies and Tribes undertaking land-modifying activities on their lands to undertake careful consultations with traditional users of the land and intensive archeological surveys to locate and then protect unmarked Native American graves, cemeteries, or other places where cultural items might be located. Under Section 3, remains and cultural items covered by the law may be handed over to Indian tribes under several circumstances, including if a relationship of cultural affiliation can be determined.

Other provisions of NAGPRA: (1) stipulates that illegal trafficking in human remains and cultural items may result in criminal penalties (Section 4); (2) authorizes the Secretary of the Interior to administer a grants program to assist museums and Indian Tribes in complying with certain requirements of the statute (Section 10); (3) requires the Secretary of the Interior to establish a Review Committee to provide advice and assistance in carrying out key provisions of the statute (Section 8); authorizes the Secretary of the Interior to penalize museums that fail to comply with the statute (Section 9); and, (5) directs the Secretary to develop regulations in consultation with this Review Committee (Section 13).

Forging New Relationships

Since the passage of the Native American Graves Protection and Repatriation Act in 1990, a set of procedures has been developed from scratch to deal with what often are difficult and emotional cases that place anthropologists, archeologists, curators, and other scientists in potential conflict with American Indians, Native Alaskans, and Native Hawaiians. Perhaps the most striking aspect of what has happened regarding the implementation of the law is that thousands of government, museum, and academic professionals in hundreds of museums and agency offices have been able to arrive at acceptable resolutions to hundreds of NAGPRA cases with thousands of Native Americans. As of July, 2003, over 950 public notices have appeared in the Federal Register announcing the willingness or intent to repatriate from museums or federal agency repositories human remains or cultural items covered by NAGPRA. These notices cover over 27,000 sets of Native American human remains, over 600,000 funerary objects, over 1100 sacred objects, and upwards of 200 objects of cultural patrimony.

One might ask whether or not it is a good thing that all these remains and artifacts move out of public control and stewardship. The answer one has to this question depends upon one’s perspective on what appropriate treatments and uses are for Native American human remains, funerary objects, sacred objects, and objects of cultural property. Since individuals’ perspectives on this matter range widely, answers to the question likewise vary widely from unqualified “yes” or “no” through qualified responses of all kinds.

NAGPRA has created a new relationship between Indian tribes, Native Alaskan groups, and Native Hawaiian organization and museums and federal agencies. The requirements for consultation under NAGPRA give the former greater opportunity to influence how the kinds of remains and cultural items covered by the law are dealt with by museums and federal agencies. Museums and agencies with collections containing Native American human remains and funerary objects have had to inventory these materials, determine whether they are linked to lineal descendents or culturally affiliated with Indian tribes, Native Alaskan groups, or Native Hawaiian organizations. As part of these efforts, the museums and agencies were required to consult with known or potential lineal descendents and culturally affiliated tribes. Consultation requires that federal agency and museum officials seek advice and recommendations from tribal representatives regarding the kinds of remains or objects being considered, how these remains or objects are to be treated, the interpretation of cultural affiliation regarding these remains or objects, and other relevant topics. Tribal representatives have the right to make recommendations about what the agency or museum officials should decide, but they cannot dictate the ultimate decision, nor is their consent required for a decision to be final. Tribes may disagree with agency or museum decisions and have avenues to pursue any complaints they may have about them.

If there is a reasonably clear relationship of lineal descent or cultural affiliation, the museums or agencies must offer to repatriate these remains and funerary objects to the appropriate Indian tribe, Native Alaskan group, or Native Hawaiian organization. A similar set of steps holds for unassociated funerary objects, sacred objects, and objects of cultural patrimony. On federal land, the land managing agencies must consult with Indian tribes or Native Alaskan groups when they are planning archeological excavations or when Native American remains are unexpectedly discovered, often through natural erosion.

These requirements for action by federal agencies and museums and the new role of tribes and the other kinds of groups empowered by the law have substantially altered the relationships that formerly existed. Museums and agencies must pay more attention and, in some cases, for example, on tribal land, are legally bound to follow the wishes of the tribes. The Indian tribes, Native Alaskan groups, and Native Hawaiian organizations have new rights of access to museum collections and federal repositories and records, as well as formal rights to be consulted and their views heard before museums and agencies make decisions about the kinds of remains and objects covered by NAGPRA. They also have rights to protest, administratively and judicially, decisions on these matters with which they disagree.

Who Is Responsible?

Executing the provisions of the Native American Graves Protection and Repatriation Act involves three primary participants: Federal agencies, all museums receiving Federal funds (including State, local, and private institutions), and lineal descendents, Indian Tribes and Native Hawaiian organizations. Oversight of and directions for the activities required of these three types of organizations are to be provided by the Secretary of the Interior and the NAGPRA Review Committee established by the statute.

Federal agencies and museums that have collections that include the kinds of human remains and other cultural items covered by NAGPRA were to have prepared summaries of the unassociated funerary objects, sacred objects, and objects of cultural patrimony by November, 1993, and to have sent these summary statements to affiliated or likely affiliated Indian Tribes, etc. By November, 1995, these same kinds of organizations were to have completed item-by-item inventories of Native American human remains and associated funerary objects that are in their collections. These inventories also were to have been sent to culturally affiliated Tribes or Tribes likely to be culturally affiliated.

Federal agencies and Indian Tribes that administer federal or tribal land are responsible for complying with NAGPRA regarding consultation with Tribes prior to new archeological excavations or following inadvertent discoveries and for determining and arranging for disposition of any Native American human remains or other cultural items recovered from excavations or inadvertent discoveries.

The Secretary of the Interior is responsible for a variety of implementation activities: administering a grants program; investigating and imposing, when appropriate, civil penalties for noncompliance by museums; appointing and supporting a 7 member, citizen Review Committee to assist in overseeing several aspects of the law; and, issuing regulations to implement the law. Many of these responsibilities have been delegated to the National NAGPRA Program in the National Park Service.

The NAGPRA Review Committee is responsible for a variety of activities: facilitating the resolution of disputes; making recommendations about “culturally unidentifiable”; monitoring compliance with the law.

Lineal descendents, Indian Tribes, including Native Alaskan corporations and villages, and Native Hawaiian organizations may make claims for cultural items with which they are linked by descent or cultural affiliation. They may challenge federal agency or museum determinations concerning individual cultural items, or lineal descent or cultural affiliation determinations.

All U.S. citizens are prohibited from selling, purchasing, using for profit, or transporting for sale or profit Native American human remains for which they do not hold the “right of possession.” Chapter 53 of title 18 USC has been amended to add “Illegal Trafficking in Native American Human Remains and Cultural Items.”

What Kinds of Objects are Covered by the Law?

The kinds of remains and the artifacts covered by provisions of the statute are: (1) human remains and associated funerary objects; (2) unassociated funerary objects; (3) sacred objects; and (4) objects of cultural patrimony.

"Human remains" are not defined in the statute, and consequently all kinds of Native American human remains are covered. This means isolated human bones, teeth, or other kinds of bodily remains that may have been disturbed from a burial site are still subject to the provisions of this statute.

"Associated funerary objects" are objects reasonably believed to have been placed with human remains as part of a death rite or ceremony. The use of the adjective "associated" refers to the fact that these items retain their association with the human remains with which they were found and that these human remains can be located. It applies to all objects that are stored together as well as objects for which adequate records exist permitting a reasonable reassociation between the funerary objects and the human remains that they were buried with.

It frequently occurs in archeological sites that artifacts seemingly from burials were not placed with the human remains as part of a death rite, rather they have been introduced into the burial later by natural processes or cultural activities unrelated to death rites or ceremonies. These latter objects would not be considered funerary objects.

"Unassociated funerary objects" are items that "...as a part of a death rite or ceremony of a culture are reasonably believed to have been placed with individual human remains either at the time of death or later...", but for which the human remains are not in the possession or control of the museum or Federal agency. These objects also must meet one of two further conditions. They must be identified by a preponderance of the evidence as either "... related to specific individuals or families or to known human remains..." or "...as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe (Sec. 2(3)(B)).

"Sacred objects" are defined in the statute as "...specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents...(Sec. 2(3)(C))" Further discussion of this term is supplied by the Senate Committee report:

There has been some concern expressed that any object could be imbued with sacredness in the eyes of a Native American, from an ancient pottery shard to an arrowhead. The Committee does not intend this result. The primary purpose of the object is that the object must be used in a Native American religious ceremony in order to fall within the protection afforded by the bill (Senate 1990:7).

"Objects of cultural patrimony" are defined in the statute as having "...ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual...(Sec. 2(3)(D))". The key provision in this definition is whether the property was of such central importance to the Tribe or group that it was owned communally. The potential vagueness of this term again produced comment by the Senate Committee:

The Committee intends this term to refer to only those items that have such great importance to an Indian Tribe or to the Native Hawaiian culture that they cannot be conveyed, appropriated or transferred by an individual member. Objects of Native American cultural patrimony would include items such as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian Tribe as a whole (Senate 1990:7-8).

Many objects in archeological or ethnographic collections are not subject to the statute, because they never had a burial, funerary, religious, or cultural patrimonial context in the culture that they were part of. Such objects would be retained in existing repositories with appropriate treatments and care. When archeological investigations or unanticipated discoveries on Federal or Tribal land result in the recovery of such items, they are to be treated and disposed of according the requirements of the appropriate archeological or historic preservation laws.

The Relationships that Make Repatriation or Disposition Legal

Section 3 of the statute defines how cultural affiliation is to be used to establish ownership of cultural items recovered on federal or tribal lands during excavations or inadvertent discoveries following the date of enactment (25 USC 3002(a)). This section applies to planned excavations or unanticipated discoveries, not to items and remains already in collections. For human remains and associated funerary objects, affiliation established by lineal descendants takes precedence over affiliation established by all other potential claimants. For human remains and associated funerary objects for which lineal descendants cannot be ascertained, as well as unassociated funerary objects, sacred objects, and items of cultural patrimony, the statute provides a context for judging among potentially competing affiliated tribes or other entities (25 USC 3002(a)(1)-(2)):

1. Indian tribes or Native Hawaiian organizations on whose tribal lands the cultural items are discovered;
2. Indian tribes or Native Hawaiian organizations that can show the closest cultural affiliation to the items; and
3. if cultural affiliation cannot reasonably be ascertained and if the items were recovered from Federal land formally recognized by a final judgment of the Indian Claims Commission or the U.S. Court of Claims as the aboriginal land of some Indian tribe, proper recipients may be the Indian tribes recognized as aboriginally occupying the area from which the items were excavated.

Regarding (3), if a preponderance of the evidence shows that a different tribe than the one identified as aboriginally occupying the area has a stronger demonstrated cultural affiliation with the human remains or cultural items, they would be viewed as the culturally affiliated group for purposes of the statute.

Clearly, "cultural affiliation" is a key concept for implementing this statute; it is a cornerstone for most repatriation requests and for asserting claims related to new discoveries on Federal or Tribal land. The statute defines cultural affiliation as

a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian Tribe or Native Hawaiian organization and an identifiable earlier group (Sec. 2(2)).

There are three elements that must be considered when investigating whether or not a relationship of cultural affiliation can be determined. There must be:

1. a "present day Indian tribe or Native Hawaiian organization." Indian tribes are those tribes recognized as such through the Bureau of Indian Affairs recognition procedures. Also included are "…and Alaskan Native village or corporation defined in or established by the Alaska Native Claims Settlement Act (43 CFR 10.2(b)(2)."
2. "an identifiable earlier group", for example, a group of burials from Pecos NHP or another NPS unit; and,
3. "a relationship of shared group identity" between these two groups.

The statute and regulations do not establish a standard method or specific techniques for establishing cultural affiliation. The statute does list the kinds of evidence that should be considered in making such determinations. The list includes geographical, kinship, biological, archaeological, anthropological, linguistic, oral tradition, or historical evidence or other relevant information or expert opinion. The reliability and relevance of evidence needs to be evaluated for each case. A reasonable determination that "a relationship of shared group identity" is required. "Reasonable" according to Black's Law Dictionary (1995, abridged 6th edition, p. 874), means: "fair, proper, just, moderate, [and] suitable under the circumstances."

In its report on the legislation that was enacted as NAGPRA, the Senate Indian Affairs Committee discussed this matter:

The types of evidence which may be offered to show cultural affiliation may include, but are not limited to, geographical, kinship, biological, archaeological, anthropological, linguistic, oral tradition, or historical evidence or other relevant information or expert opinion. The requirement of continuity between present day Indian Tribes and materials from historic or prehistoric Indian Tribes is intended to ensure that the claimant has a reasonable connection with the materials. Where human remains and funerary objects are concerned, the Committee is aware that it may be extremely difficult, unfair, or even impossible in many instances for claimants to show an absolute continuity from present day Indian Tribes to older, prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of gaps in the record (Senate 1990:9).

Whether new discoveries from Federal or Tribal land or existing collections are being considered, it is not necessary for the agency, museum, lineal descendent, Indian Tribe, or Native Hawaiian organization to establish beyond all doubt which descendent or Native American group is a proper claimant for purposes of repatriation. This is true in situations involving cultural items in collections as well as when dealing with newly discovered materials.

The cultural affiliation definition also indicates that federally recognized Indian tribes, Alaskan Native organizations, and Native Hawaiian organizations are the present day groups that are to be considered regarding cultural affiliation. Other contemporary groups of Native Americans of diverse backgrounds who voluntarily associate together for some purpose or purposes are not viewed as proper claimants under the provisions of the statute.

The NAGPRA Implementing Regulations and "Cultural Affiliation"

The implementing regulations for NAGPRA provide some additional direction about how to make determinations of cultural affiliation. Section 43 CFR 10.14 describes the steps to be taken and the issues agency and museum officials, or others making such determinations, must consider in making such determinations.

1. General: This section identifies procedures for determining lineal descent and cultural affiliation between present-day individuals and Indian tribes or Native Hawaiian organizations and human remains, funerary objects, sacred objects, or objects of cultural patrimony in museum or Federal agency collections or excavated intentionally or discovered inadvertently from Federal lands. They may also be used by Indian tribes and Native Hawaiian organizations with respect to tribal lands.
2. Criteria for determining lineal descent: A lineal descendant is an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descent to a known Native American individual whose remains, funerary objects, or sacred objects are being requested under these regulations. This standard requires that the earlier person be identified as an individual whose descendants can be traced.

3. Criteria for determining cultural affiliation: Cultural affiliation means a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. All of the following requirements must be met to determine cultural affiliation between a present-day Indian tribe or Native Hawaiian organization and the human remains, funerary objects, sacred objects, or objects of cultural patrimony of an earlier group:

   1. Existence of an identifiable present-day Indian tribe or Native Hawaiian organization with standing under these regulations and the Act; and

   2. Evidence of the existence of an identifiable earlier group. Support for this requirement may include, but is not necessarily limited to evidence sufficient to:

      1. Establish the identity and cultural characteristics of the earlier group,
      2. Document distinct patterns of material culture manufacture and distribution methods for the earlier group, or
      3. Establish the existence of the earlier group as a biologically distinct population; and
   3. Evidence of the existence of a shared group identity that can be reasonably traced between the present-day Indian tribe or Native Hawaiian organization and the earlier group. Evidence to support this requirement must establish that a present-day Indian tribe or Native Hawaiian organization has been identified from prehistoric or historic times to the present as descending from the earlier group.
4. A finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of some gaps in the record.
5. Evidence: Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe, or Native Hawaiian organization and human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by using the following types of evidence: Geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.
6. Standard of proof: Lineal descent of a present-day individual from an earlier individual and cultural affiliation of a present-day Indian tribe or Native Hawaiian organization to human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by a preponderance of the evidence. Claimants do not have to establish cultural affiliation with scientific certainty.

In a recent finding published in the Federal Register, the NAGPRA Review Committee made comments about how cultural affiliation determinations should be made. Their recommendations were directed toward a particular case. However, the points can be generalized. The committee noted that:

1. Determination of cultural affiliation should be made on a site-by-site basis [rather than in larger units, such as an entire large district, forest, or park area], assessing each site based on the specific data available;
2. While collective consultation can be useful, it should not be used in lieu of individual tribal consultation when requested by an Indian tribe;
3. A proper determination of cultural affiliation necessarily requires the critical evaluation and careful weighing of all available evidence. This weighing should emphasize group identity, time period, specific cultural practices, and traceable cultural continuity;
4. [It is necessary]…to ensure the objective character of the determinations of cultural affiliation of the human remains and other cultural items…(Federal Register 65(28):6622)

National Park Service Guidance Regarding Determinations of Cultural Affiliation

NPS Guidelines (Director's Order 28: Cultural Resource Management Guideline, 1997) provide additional direction on the implementation of NAGPRA, in particular Appendix R of the guideline. This appendix also was printed and distributed in 1998 as National Park Service Handbook: Native American Graves Protection and Repatriation Act (NAGPRA). Section 7c of Appendix R summarizes "cultural affiliation," mainly by reiterating the law and regulations:

Cultural affiliation is a relationship of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. A wide variety of evidence can be introduced to document such a relationship, including geographic, kinship, biological, archeological, linguistic, folklore, oral tradition, historic evidence, and other information or expert opinion. Unlike claims of lineal descent in which the relationship between the claimant and the individual whose remains or objects are claimed must be direct and without interruption, determination of cultural affiliation should be based on an overall evaluation of the totality of the circumstances and evidence and should not be precluded solely because of some gaps in the record. Culturally affiliated Indian tribes may claim human remains, funerary objects, sacred objects, and objects of cultural patrimony in federal agency and museum collections as well as those excavated or discovered on federal or tribal lands.

One of the types of NPS study types is the Cultural Affiliation and Lineal Descent Study. This type of study has the following general goals and sources of information.

The affiliation study establishes relationships between park resources and associated past and present peoples. Lineal descent studies trace relationships between objects in park collections, or other resources, and descendants of individuals whose remains or objects are in park collections. They are required to address the cultural affiliation and consultation requirements of the Native American Graves Protection and Repatriation Act (NAGPRA) and other legislation, policy, and regulations that address peoples traditionally associated with park resources. Parks with Native American collections and the potential for the excavation or inadvertent discovery of Native American materials will program affiliation studies as soon as possible. Researchers will consult with NPS archeologists, curators, ethnographers, and other professionals concerned with repatriation, as well as with community members (Director's Order 28: Cultural Resource Management Guideline, p. 167. 1997

These are the main sources of guidance for NPS officials undertaking determinations of cultural affiliation to comply with NAGPRA.

Further Readings

Sources of Information

			Park NAGPRA, Archeology Program, 12795 W. Alameda Parkway, Denver, CO 80225. Mary S. Carroll, National Park NAGPRA Coordinator, (303) 969-2300.
			National NAGPRA, Office of the Assistant Director, Cultural Resources, National Center for Cultural Resources, National Park Service, Washington, DC. (202) 354-2201.