An Introduction to the Native American Graves Protection and Repatriation Act (NAGPRA)
Francis P. McManamon
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.
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).
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
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
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
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)):
Indian tribes or Native Hawaiian organizations on whose tribal lands the cultural
items are discovered;
Indian tribes or Native Hawaiian organizations that can show the closest cultural
affiliation to the items; and
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:
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)."
"an identifiable earlier group", for example, a group of burials from
Pecos NHP or another NPS unit; and,
"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.
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.
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.
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:
Existence of an identifiable present-day Indian tribe or Native Hawaiian organization
with standing under these regulations and the Act; and
Evidence of the existence of an identifiable earlier group. Support for this
requirement may include, but is not necessarily limited to evidence sufficient
Establish the identity and cultural characteristics of the earlier group,
Document distinct patterns of material culture manufacture and distribution
methods for the earlier group, or
Establish the existence of the earlier group as a biologically distinct
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
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.
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.
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
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:
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;
While collective consultation can be useful, it should not be used in lieu of
individual tribal consultation when requested by an Indian tribe;
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
[It is necessary]…to ensure the objective character of the determinations
of cultural affiliation of the human remains and other cultural items…(Federal
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.
|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, 12795 W. Alameda Parkway, Denver, CO 80225. Mary S. Carroll, National
Park NAGPRA Coordinator, (303) 969-2300.