NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT OF 1990

Years of the U.S. government granting a free hand to those who wished to examine Native American remains came to an end with the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) (25 U.S.C. § 3001 et. seq.). This act marks a reversal of previous U.S. government policies, not only providing protection for Native American burial sites but also helping Native Americans take possession of the remains of their ancestors currently in the hands of museums and other scientific institutions. The law supports the idea that Native Americans have the right to determine the proper disposal of the remains of their ancestors, although it has come under some criticism by the scientific community for its potential to stifle research into ancient American tribes.

Among the many contentious issues that have afflicted the relationship between Native Americans and the U.S. government, none has been more difficult than the issue of the remains of Native American tribes. The U.S. Government has traditionally seen these remains as worthy of archeological and scientific study and has awarded wide latitude to those who want to examine them. In contrast, Native Americans tend to see the archeologists and museums who have dug up and taken possession of these remains over the years as little more than "grave robbers" and have demanded that the burial places of their ancestors be respected.

The law's origin lies in the civil rights movement of the 1960s and its affect on Native Americans, who began advocating changes in American laws that they saw as promoting a disrespect for their culture. Among the most egregious examples of this was the Antiquities Preservation Act of 1906, which made almost all Native American burial sites into "objects of antiquity" or "archaeological resources" and in effect gave the federal government the right to determine their fate. This became unacceptable to Native Americans, and in response to their complaints, the federal government passed the 1979 Archaeological Resource Protection Act, (16 U.S.C. § 470aa-470ii), which made it more difficult to excavate on Native American lands, and the 1989 National Museum of the American Indian Act (20 U.S.C.A. § 80q), which required the Smithsonian Institute to repatriate remains to tribes that could show that they were related to the remains.

But Native American groups saw these laws as inadequate, so in 1990, Congress passed the sweeping Native American Graves Protection and Repatriation Act. NAGPRA for the first time establishes that the ownership or control of Native American cultural items, including remains that are excavated or discovered on federal or tribal lands, shall rest with the Native American tribes themselves. Priority is given first to the lineal descendants of the Native American whose remains were discovered, or in any case in which such lineal descendants cannot be ascertained, in the Native American tribe on whose tribal land such objects or remains were discovered; and then to the Native American tribe that has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects.

If the cultural affiliation of the objects cannot be reasonably ascertained, and if the objects were discovered on federal land that is 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, the ownership title will go to the Native American tribe that is recognized as occupying the area in which the objects were discovered, if the tribe states a claim for such remains or objects. However, if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization that currently occupies the area, then ownership of the remains will go to the Indian tribe that has the strongest demonstrated relationship.

In addition, NAGPRA requires federal agencies and each museum that has possession or control over holdings or collections of Native American human remains to compile an inventory of such items and, to the extent possible based on information possessed by such museum or federal agency, identify the geographical and cultural affiliation of such item. The agency or museum must supply notice to any tribe that it finds was affiliated with the remains. The agency and museum must repatriate any items where a claim has been established by known lineal descendant of the Native American or of the tribe; or where a cultural affiliation is shown by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion. For unassociated funerary objects, sacred objects, or objects of cultural patrimony, the museum or agency must return such objects where the requesting party is the direct lineal descendant of an individual who owned the sacred object, where the requesting Indian tribe or Native Hawaiian organization can show that the object was owned or controlled by the tribe or organization, or where the requesting Native American tribe can show that the sacred object was owned or controlled by a member thereof, provided that in the case where a sacred object was owned by a member thereof, there are no identifiable lineal descendants of said member, or the lineal descendants have failed to make a claim for the object.

The only exception is that repatriation is not required of such items that are indispensable for completion of a specific scientific study, the out-come of which would be of major benefit to the United States. Such items shall be returned by no later than 90 days after the date on which the scientific study is completed. Museums may also retain material until competing claims are resolved, and they are protected against claims by aggrieved parties if objects are returned in good faith. Finally, the law establishes a seven-member commission, three of whom must be from Native-American tribes, three of whom represent the scientific community, and one of whom is appointed by the secretary from a list approved by the other six members, for the purpose of resolving certain disputes under the legislation. Two of the three Native Americans appointed to this commission must be traditional religious leaders.

NAGPRA for the first time gives Native Americans control over their ancestors burial remains, and ensures repatriation for remains and other sacred objects that currently reside in museums and with other federal agencies. It is an important milestone in the relationship between the United States and its Native American inhabitants