Repatriation and NAGPRA

On November 16, 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) became law. This law, sections 3001 through 3015 of Volume 25 of the United States Code, "Establishes procedures and legal standards for the repatriation of human remains, funerary objects, sacred objects and cultural patrimony by federal agencies and certain museums, educational and other institutions, and state and local governments. Recognizes certain tribal, Native Hawaiian and individual rights in regard to burial sites located on federal and tribal lands. In general, the Act is based upon the unique relationship between Native Americans and the federal government."¹

NAGPRA provides various repatriation, ownership and control rights to Native American individuals and families who are lineal descendents of a deceased native individual and to Indian tribes and Native Hawaiian organizations.

Cultural Items

NAGPRA deals with the issue of ownership and control over Native American "cultural items." "Cultural items" are defined to include human remains, associated and unassociated funerary objects, sacred objects and objects of cultural patrimony. The meaning of each of the categories of items is as follows:

1. "Associated funerary objects" includes two categories of objects:
   1. Objects "reasonably believed to have been placed with individual human remains either at the time of death or later...as part of a death rite or ceremony" where both the human remains and objects are presently in the possession or control of the same agency or museum- only in the possession or control of a museum or agency so that a connection between the objects and remains is possible.
   2. Objects "exclusively made for burial purposes or to contain human remains."⁹
2. "Unassociated funerary objects" are those funerary objects which were found with human remains where:
   1. The objects can be related to specific individuals, families or known human remains or to a specific burial site of a culturally affiliated individual.
   2. The human remains are not presently in the possession or control of a federal agency or museum.¹⁰
3. "Sacred objects" are those objects which are:
   1. Ceremonial in nature and needed by traditional Native American religious leaders for the present-day practice of traditional Native American religions. This includes both the use of the objects in ceremonies currently conducted by traditional practitioners and instances where the objects are needed to renew ceremonies that are part of a traditional religion. The definition recognizes that the ultimate determination of continuing sacredness must be made by the Native American religious leaders themselves since they determine the current ceremonial need for the object.
4. "Cultural patrimony" are those objects which:
   1. Have "ongoing historical, traditional or cultural importance central to the Native American group or culture itself"¹³
   2. Are the cultural property of a tribe, or a subgroup thereof such as a clan or band and could not have been sold or given away by an individual.
   3. Congress intended cultural patrimony to refer to items of "great importance" such as Iroquois wampum belts.¹⁴

1. 25 U.S.C. 3010.
2. 25 U.S.C. 3001 (7)
3. Abenaki Nation of Mississquoi v. Hughes, 20 I.L.R. 3001 (D. Vt. 1992)
4. For example, the Confederated Salish and Kottenai tribes govern the Flathead Resevation Jointly. However, the Salish and Kootanai have their own distinct cultures and separate mechanisms for making decisions regarding traditional matters. The most reasonable interpretation of the definition of "Indian Tribe," read in conjunction with the remainder of the Statute, would be an interpretation that permits both the Salish and Kootenenai to make independent claims under NAGPRA.
5. 25 U.S.C. 3001(11).
6. 25 U.S.C.3001(4); 20U.S.C. 80q-9.
7. 25 U.S.C.3001(3)(A).
8. 25 U.S.C.3001(3)(B).
9. 25 U.S.C. 3001(3)(C).
10. H.R.Rep.No.877, 101st Cong., 2nd Sess (1990), at 14.
11. 25 U.S.C. 3001 (3)(D).
12. S. Rep. No. 473, 101st Cong., 2nd Sess. (1990), at 7-8.