The Native American Graves Protection and Repatriation
Reproduced from Archaeological Method and Theory: An
Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and
Francis P. McManamon
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. One major purpose of this statute (Sections
5-7) is to 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).
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. 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 (Section 3).
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.
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
"Cultural affiliation" is a key concept for implementing this statute;
it is a cornerstone for repatriation requests and for asserting claims related
to new discoveries on Federal or Tribal land. The statute defines cultural affiliation
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)).
This implies that 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.
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 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).
Executing the provisions of the Graves Protection and Repatriation Act involves
three primary participants: Federal agencies, all museums receiving Federal funds
(including State, local, and private institutions), and 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.
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
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
"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
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
|McManamon, Francis P.
Managing Repatriation: Implementing the Native American Graves Protection and
Repatriation Act. CRM 15(5):9-12.
|McManamon, Francis P.
Changing Relationships Between Native Americans and Archaeologists. Historic
Preservation Forum 8(2):15-20.
|National Park Service
Special Report: The Native American Graves Protection and Repatriation Act.
Federal Archeology Fall/Winter, 1995. Archeology Program,
National Park Service, Washington, DC.
|National Park Service
Special Issue on Consultation. Common Ground 2(¾). Archeology Program, National Park Service, Washington, DC.
|Pace, Julie A., editor
Symposium: The Native American Graves Protection and Repatriation Act of 1990
and State Repatriation-related Legislation. Arizona State Law Journal
|United States House of Representatives, Committee on Interior and Insular Affairs
House Report 101-877, 101st Congress, 2nd Session. Washington, DC.
|United States Senate, Select Committee on Indian Affairs
Senate Report Number 473, 101st Congress, 2nd Session.
Sources of Information
National NAGPRA, National Center for Cultural Resources,
National Park Service, Washington, DC. (202) 354-2100. Mary S. Carroll, National
Park NAGPRA Coordinator, (202)-354-2103.