Native American Graves Protection and Repatriation Act NAGPRA

When Does It Apply?

This law applies on all Federal, State and Aborginal lands across the United States. Aboriginal or tribal lands are defined as "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" (Pursuant to [43 CFR 10.6 (a)(2)(iii)]).

It is triggered by inadvertent discoveries defined as "the unanticipated encounter or detection of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (d) of NAGPRA" (Pursuant to [43 CFR 10.2 (g)(4)]).

This law is also triggered by intentional excavations defined as "the planned archeological removal of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (c) of the Act." The act referred to here is NAGPRA (Pursuant to [43 CFR 10.2 (g)(3)]).

Our "when" button will take you to a diagram provided by the NPS regarding when, and where NAGPRA and several other federal preservation laws apply.

When

What types of items are eliglible for repatriation?

There are many sacred items eligible for repatration beside human remains. NAGPRA defines seperate types of cultural items listed as: Human remains, associated funerary objects (afo's), unassociated funerary objects (ufo's), sacred objects, items of cultural patrimony (Pursuant to [25 USC 3001 (3)]).

Human Remains

Defined as "the physical remains of the body of a person of Native American ancestry." This also includes those remains for which no culturally affiliated present-day Indian tribe or Native Hawaiian organization can be determined (Pursuant to [43 CFR 10.9 (d)(2)]).

It does not include remains or portions of remains that may reasonably be determined to have been freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets. For the purposes of determining cultural affiliation, human remains incorporated into a funerary object, sacred object, or object of cultural patrimony must be considered as part of that item. (Pursuant to [43 CFR 10.2 (d)(1)])

Associated Funerary Objects (afo)

Defined as "objects that, as a part of the 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, and both the human remains and associated funerary objects are presently in the possession or control of a Federal agency or museum, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects" (Pursuant to [25 USC 3001 (3)(A)]).

Unassociated Funerary Objects (ufo)

Defined as: "objects that, as a part of the 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, where the remains are not in the possession or control of the Federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe" (Pursuant to [25 USC 3001 (3)(B)]). Those funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency. Pursuant to [43 CFR 10.2 (d)(2)(ii)]).

Sacred Objects

Defined 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" (Pursuant to [25 USC 3001 (3)(C)]).

Items of cultural patrimony

Defined as "an object 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 regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group" (Pursuant to [25 USC 3001 (3)(D)]).

Who can make a claim for custody?

The first step is determining who has custody, defined as "ownership or control of human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently in [sic] Federal or tribal lands after November 16, 1990" (Pursuant to [43 CFR 10.6 (a)]). A NAGPRA inventory is prepared by each agency holdling items subject to NAGPRA.

This inventory is the item-by-item description of human remains and associated funerary objects [43 CFR 10.2 (g)(2)] as required at 25 USC 3003. It is also sometimes called "inventory and identification," which refers to the identification of the cultural affiliation of Native American human remains and associated funerary objects as a required part of the inventory. It has two parts: 1) a listing of all human remains and associated funerary objects that are identified as being culturally affiliated with one or more present-day Indian tribes or Native Hawaiian organizations, and 2) a listing of all culturally unidentifiable human remains for which no culturally affiliated present-day Indian tribe or Native Hawaiian organization can be determined [43 CFR 10.9 (d)].

The Inventory of Culturally Unidentifiable Human Remains is compiled by the NAGPRA Review Committee. It contains a listing of all culturally unidentifiable human remains for which no culturally affiliated present-day Indian tribe or Native Hawaiian organization can be determined (Pursuant to [43 CFR 10.9 (d)(2)]). The Review Committee is authorized under 25 USC 3006 (c)(5) to compile an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum, and recommend specific actions for developing a process for the disposition of such remains.

Museums and Federal agencies were required to complete their inventories by November 16, 1995.

A claimant is defined as "a lineal descendant, Indian tribe, or Native Hawaiian organization who asserts a claim for cultural items pursuant to NAGPRA."

How do you make a claim?

Cultural affiliation is established when the preponderance of the evidence -- based on geographical, kinship, biological, archeological, linguistic, folklore, oral tradition, historical evidence, or other information or expert opinion -- reasonably leads to such a conclusion(Pursuant to [43 CFR 10.2 (e)]).

Cultural Affiliation

Defined 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 (Pursuant to [25 USC 3001 (2)]).

Preponderance of Evidence

A standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. [Black's Law Dictionary, 6th Edition].

A clamiant must provide documentation in the form of a summary of existing museum or Federal agency records including inventories or catalogues, relevant studies, or other pertinent data for the limited purpose of determining the geographical origin, cultural affiliation, and basic facts surrounding the acquisition and accession of human remains and associated funerary objects (Pursuant to [43 CFR 10.9 (e)(5)]).

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