On Federal or Tribal Lands

NPS Photo.

Federal agencies must follow a process for Native American human remains or cultural items removed from or discovered on Federal or tribal lands. This process took effect with the passage of NAGPRA on November 16, 1990, and only applies to Federal or tribal lands. NAGPRA acknowledges that Native American human remains and other cultural items removed from Federal or tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, or Native Hawaiian organizations.

What must be done?

The process follows one of the two paths below:

Process applies to Federal and Tribal Lands ONLY after 1990.

National NAGPRA Program

For a flowchart of the decision points in this process, see Overview of Subpart B 43 CFR Part 10.

For a more in-depth look at the entire process, read Subpart B of the regulations (43 CFR Part 10).

Who can receive cultural items?

Cultural items excavated from or discovered on Federal or tribal land are transferred using the following priority list:

1. Lineal Descendants (for human remains and associated funerary objects)

2. Tribal Land Indian Tribe or Native Hawaiian organization

3. Culturally Affiliated Indian Tribe or Native Hawaiian organization

4. Indian Tribe with the strongest relationship

a. Aboriginal land Indian Tribe (as determined by the Indian Claims Commission or Court of Claims) or
b. A different Indian Tribe with a stronger cultural relationship to the cultural items than the aboriginal land Indian Tribe.

5. Other Indian Tribe or Native Hawaiian organization not listed above, if cultural items are unclaimed and with the agreement of the Federal agency.

What else must be done?

After determining the appropriate party from the priority list, a Notice of Intended Disposition is published twice in a newspaper of general circulation by the Federal agency official. Any human remains or cultural items that are not transferred must be reported as unclaimed cultural items. Federal agencies must report published Notices of Intended Disposition and unclaimed cultural items to the National NAGPRA Program.

NAGPRA intersects with other laws and regulations governing activities on Federal and tribal lands, such as the Archaeological Resources Protection Act (ARPA) and the National Historic Preservation Act (NHPA). For a comparision of all three laws, see the NAGPRA, ARPA, and NHPA Comparison Chart.

On private or state land, excavations or discoveries are governed first by local or state laws, but human remains or cultural items removed from private or state land may be subject to NAGPRA as a holding or collection, depending on who has control of them.

An online compilation of state burial laws is a useful starting point for determining what local or state laws might apply.

Who can receive cultural items from Federal or Tribal lands?

Lineal Descendant: 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 descendance [sic] to a known Native American individual whose remains, funerary objects, or sacred objects are being claimed under these regulations. [43 CFR 10.2 (b)(1)]

Indian Tribes and Native Hawaiian Organizations that are connected to the cultural items through

Tribal Land: All lands within the exterior boundaries of any Indian reservation; all dependent Indian communities; any lands administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3. [25 USC 3001 (15)]

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. [25 USC 3001 (2)]

Aboriginal Lands: Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of an Indian Tribe. [43 CFR 10.6 (a)(2)(iii)]

Stronger Cultural Relationship: By a preponderance of the evidence, an Indian Tribe other than the aboriginal land Indian Tribe that has a stronger cultural relationship with the human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony. [43 CFR 10.6(a)(2)(iii)(B)]