The Catholic University of America

The National Endowment for the Arts

Presents

A Guide to the Native American Graves Protection and Repatriation Act (NAGPRA)

By Christopher D. Weston, Attorney-Advisor, Office of the General Counsel, U.S. Copyright Office
Posted with the permission of the author.

Table of Contents:

What Is NAGPRA?

Brief Description

History

Purposes & Principles

A Few Definitions

What Are "Cultural Items"?

Human Remains

Funerary Objects

Associated Funerary Objects

Unassociated Funerary Objects

Sacred Objects

Cultural Patrimony

How Does NAGPRA Work?

Category 1A: Human Remains and Associated Funerary Objects Found on Federal or Tribal Land

Intentional Archaeological Excavations

Inadvertent Discoveries

Culturally Unidentifiable Human Remains - or - Meet Kennewick Man

Category 1B: Unassociated Funerary Items, Sacred Objects, and Cultural Patrimony Found on Federal or Tribal Land

Category 2A: Human Remains and Associated Funerary Objects in the Possession of a Museum or Federal Agency

Inventories

Non-Inventory Repatriation

Category 2B: Unassociated Funerary Objects, Sacred Objects, and Cultural Patrimony in the Possession of a Museum or Federal Agency

Summaries

Non-Summary Repatriation

Inventory and Summary Deadlines and Compliance

Restrictions on Claims

Scientific Study

Multiple Requests

The "Takings Clause"

Failure to Make a Timely Claim

Place and Manner of Repatriation

Record of Repatriation

Penalties

The NAGPRA Review Committee

A Note on Terms

NAGPRA Bibliography

Legislative History

Decisions

Law Review Articles

Other Articles

Other Documents

Books

Websites

What is NAGPRA?

Brief Description

NAGPRA is a federal human rights law that requires federal agencies and federally funded museums to return (or "repatriate") Native American cultural items in their collections to the appropriate tribes, organizations, or individuals. It also requires the return of Native American cultural items uncovered either intentionally or by accident on federal and tribal lands. NAGPRA's regulations describe in detail the process that museums and federal agencies must follow in order to identify what must be returned and to whom the return must be made. The complete text of the law and regulations can be found on the NAGPRA web page.

History

"When human remains are displayed in museums or historical societies, it is

never the bones of white soldiers or the first European settlers that came to this

continent that are lying in glass cases. It is Indian remains. The message that this sends

to the rest of the world is that Indians are culturally and physically different from and

inferior to non-Indians. This is racism."

- Sen. Daniel Inouye (D-Hawaii), speaking in support of NAGPRA on the Senate floor, October 26, 1990.

From the very beginning of the European colonization of North America Indian graves have been dug up and Indian artifacts stolen. In 1620 the first Pilgrim foray from the Mayflower inland returned with items taken from an Indian grave: "we brought sundry of the prettiest things away with us, and covered up the corpse again." The racism implicit in this desecration and theft was also used to justify "scientific" activities in the 19th century, which relied on mass appropriations of Indian remains. In the 1840s Dr. Samuel Morton collected native skulls in order to prove, through cranial measurements, the inherent inferiority of Native Americans. In 1868, the Surgeon General of the United States instructed the Army to retrieve Indian remains for the Army Medical Museum, a project that ultimately yielded over 4000 heads. This treatment of Indian dead was explicitly validated by the Antiquities Act of 1906, which defined Indian remains on federal land as "archeological resources": federal property that belonged in museums. Vestiges of this view are evident today in the debate surrounding Kennewick Man. (see discussion below)

The post-Civil War years also saw a vogue for Indian art, and while some collectors dealt fairly with Indian tribes and artists, many did not, resorting to swindles and grave-robbing. According to historian Douglas Cole, by 1925 "there was more Kwakiutal material in Milwaukee than in Mamalillikulla, more Salish pieces in Cambridge than in Comox. The City of Washington contained more Northwest Coast material than the state of Washington and New York City probably housed more British Columbia material than British Columbia itself."

Of course, Native tribes tried to retrieve their property, but with little success. Museums were unwilling to voluntarily part with their ill-gotten treasures, and most tribes had neither familiarity with the court system nor the resources for litigation. Those that did were blocked by property laws that did not recognize a tribe's right to sue for custody of cultural property. These problems are vividly illustrated by the Onondaga Nation's almost century-long struggle to persuade New York State to return twelve wampum belts.

Wampum belts were used by the Iroquois Confederacy (the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora Nations) to record their history and laws - similar in function and import to the Declaration of Independence and the Constitution. The belts consist of strings of clamshell beads woven into patterns, to be read and recited by Iroquois elders. The Onondaga tribe was the designated custodian of the wampum belts for the Iroquois Confederacy and in 1891 Thomas Webster, the Onondaga's wampum-keeper, sold four belts to the U.S. Government for $75. Other belts had been similarly alienated from the tribe, and in 1899 the Onondagas brought suit to have them returned. By now the belts belonged to the New York State Board of Regents, to whom the Onondagas had transferred them by a contract of dubious legality (considering that the Onondagas had only a limited command of English). Throughout the 20th century the Onondaga Nation tried to retrieve the belts from the Board of Regents without success. The Board claimed that they acquired the belts in good faith and the Onondagas claimed that those who sold the belts had no right to do so and hence the Board had no true right of possession. In 1989 the two parties finally worked out an agreement that returned the belts to the Onondagas, deliberately avoiding the legal issues of possession and alienation, but instead resting on what was ethically responsible and mutually agreeable.

The Onondaga case, as significant as it was in demonstrating how the museum and Indian communities could cooperate on repatriation issues, was but a first step. Despite Native American advances in forcing public acceptance of their history and their autonomy in the 1960s and 1970s, most museums and government agencies resisted repatriation. While curators, archeologists, and collectors now explicitly rejected any racialist reasons for keeping control of Indian property, they vigorously maintained that their collections of human remains were vital to continued scientific research and that they had a responsibility to the public at large to care for and present sacred and communal artifacts. Implicit in this argument was the privileging of science (research on human remains) over religion (traditional burial practices) and the belief that Indians were not fit caretakers of their own heritage.

The first indication that the federal government might act to rectify the mass re-distribution of Native American human remains and cultural property was a 1979 report mandated by the American Indian Religious Freedom Act. This report acknowledged that most Native American sacred objects in U.S. museums had been stolen from their rightful owners and that a brisk trade continued between "pothunters" who stole religious objects from tribal lands and museums and private collectors. Later that year Congress passed legislation regulating discoveries of Native American remains and cultural property on both Indian and federal lands.

It wasn't until 1986, though, that an organized effort got underway to develop a comprehensive federal repatriation law. This effort, which led directly to the passage of NAGPRA, began when Democratic Senator John Melcher from Montana introduced a bill to create a Native American Museum Claims Commission, which would mediate repatriation disputes between Native tribes and museums. The bill was opposed by the Smithsonian Institution, the American Association of Museums, and the Society for American Archeology and was not enacted. But the defeat was not total. During hearings on the bill held by the Senate Select Committee on Indian Affairs in 1987, Smithsonian Secretary Robert McCormick Adams revealed that the Institution held about 18,500 Native American human remains in its collections. This statement galvanized the Indian community, and it began a vigorous campaign to revive repatriation legislation.

In 1988 the Select Committee considered a new version of Melcher's repatriation legislation. This time the American Association of Museums suggested that the Committee delay consideration of the bill so that representatives of the museum, archaeological, anthropological and Native American communities could meet and devise a non-legislative solution to the repatriation dilemma. The Committee agreed, and throughout 1989 the Panel for a National Dialogue on Museum/Native American Relations met at the Heard Museum in Phoenix, Arizona.

While the Panel was in session, Congress passed the National Museum of the American Indian Act, which created such a museum under the control of the Smithsonian. The Act also required the Smithsonian to inventory all Native American remains and associated funerary objects in its possession and, if appropriate, return the remains or objects to lineal descendants or culturally affiliated tribes. These repatriation rules, while they did not extend to sacred objects or cultural patrimony, proved an enormously useful precedent in the development of NAGPRA.

The legislation that eventually became NAGPRA was introduced in 1989. Bills by Senators John McCain (R-Arizona) and Daniel Inouye (D-Hawaii) and Representatives Morris Udall (D-Arizona) and Charles Bennett (D-Florida) all proposed variations on the theme of graves protection and repatriation of cultural property. After the museum-Indian panel released its report in February of 1990, recommending federal repatriation legislation, committees in the House and Senate held extensive hearings, soliciting testimony from tribal members, archeologists, and museum professionals. By all accounts this testimony was taken quite seriously, and the final form of NAGPRA was a hard-won compromise between the needs of the scientific community to continue research, the needs of museums to serve the public, and the need of Indian tribes to reclaim their heritage.

NAGPRA became law on November 16, 1990, and five years later, after further consultation with tribes, scientists, and curators, detailed regulations guiding the practical application of NAGPRA were published.

It is important here to note that NAGPRA is federal legislation. This means that it is only enforceable in federal court and only applies to entities touched by the federal government (such as federally funded institutions or federally administered private lands). Many states have also enacted similar legislation. Alaska, Arizona, California, Delaware, Hawaii, Idaho, Kansas, Maine, Missouri, Nebraska, North Carolina, Oregon, and Washington all passed Native American repatriation and reburial laws prior to NAGPRA, and 16 states have enacted similar legislation since then. Most of these statutes apply to both state and private lands. All but a few of the remaining 21 states (not including the District of Columbia) have grave protection laws on the books, but these laws neither require any consultation with Native American groups when Indian remains or artifacts are discovered nor include any repatriation provisions.

Purposes and Principles

"Respect for Native human rights is the paramount principle that should

govern resolution of the issue when a claim is made."

- conclusion of the Panel of National Dialogue on Museum-Native American Relations, 1990.

The House and Senate reports recommending passage of NAGPRA, as well as the very title of the Act, indicate that its purpose is to (1) protect Native American gravesites and (2) facilitate repatriation of Indian cultural items. The House and Senate reports also show that NAGPRA was designed to encourage dialogue between museums, scientists, and Native Americans and to give Indians a larger say in how their heritage is used by the majority U.S. culture. See the legislative history of NAGPRA. As the quote above indicates, the overriding principle of NAGPRA is one of respect for Native culture and values.

But what, exactly, does this "principle of respect" mean? Mainly, it is compensatory. The function of NAGPRA is not just to return property to its rightful owners, but to compensate Native Americans, both materially and symbolically, for the centuries of abuse they have endured. The act does this by explicitly recognizing the legal validity of Native burial practices and traditions of communal ownership, and by, in many cases, privileging these traditions over competing claims for scientific research and public access to Indian artifacts. Much like affirmative action programs, NAGPRA is not based on constitutional principles as much as it is on a desire to atone for past injustices and to construct future relationships based on mutual respect rather than on domination by one group over another.

For an excellent discussion of the rationales supporting NAGPRA, see "Justifying Repatriation of Native American Cultural Property" by Sarah Harding in the Summer, 1997 issue of the Indiana Law Journal.

A Few Definitions

Federal laws and their regulations tend to use ordinary words in very specific ways limited to the context of the law. This is because the application of a law may end up turning on the meaning of only one word or phrase, and thus it is important to define with as much precision as possible what that meaning is. (lawyers call this "statutory interpretation.") It might be helpful, then, to go over some of the commonplace words and phrases found in NAGPRA and what they mean in this specific legal context. Definitions of more NAGPRA-specific terms will be explained as we encounter them later on.

Also see "The ABCs of NAGPRA" at the San Francisco State Department of Anthropology NAGPRA Compliance Project website.

· Federal Agency: any "department, agency, or instrumentality" of the United States, except for the Smithsonian Institution. (The Smithsonian's repatriation responsibilities are spelled out in the regulations governing the National Museum of the American Indian.)

· Museum: Any institution (school, museum, etc.) that possesses or controls any Native American cultural items and receives federal funds.

· Possession: physical custody of cultural items, not including those on loan from other museums.

· Control: a legal interest in cultural items regardless of actual possession (i.e. owning an item on loan to another museum).

· Federal Funds: any federal money received for any reason by a museum or a larger organization of which a museum is part. If you operate an art museum on a college campus and the college receives federal money for scientific research, you must comply with NAGPRA. You must also comply with NAGPRA if your museum receives federal money through a state or local granting agency. This rule is particularly important for smaller museums that receive NEA money through state arts agencies, as illustrated by the case of the Slater Memorial Museum.

In 1995 the Mohegan tribe of Connecticut received a NAGPRA grant to

help them locate any Mohegan cultural items that might be in local museums. Among the institutions they visited was the Slater Memorial Museum in Norwich, Connecticut, who refused to provide the Mohegans with an inventory of human remains and associated funerary objects. The Slater claimed that, since it received no federal funds and was a privately endowed museum, it did not have to comply with NAGPRA. The Mohegans, though, had done their homework and knew that the museum had received money from the New England Foundation for the Arts - federal funds that originated with the National Endowment for the Arts. The tribe wrote to the United States Department of the Interior (which, through the National Park Service, is in charge of NAGPRA compliance), which in turn checked with the NEA, and then wrote to the Slater Museum informing them that they did, in fact, receive federal funds and were required to cooperate with the Mohegan tribe.

· Native American: "of, or relating to, a tribe, people, or culture that is indigenous to the United States." Many people, things, and concepts are considered Native American within the context of NAGPRA, but that does not necessarily mean that they can justify a repatriation claim. Only Lineal Descendents, Indian Tribes, and Native Hawaiian Organizations may claim items under NAGPRA.

· Lineal Descendents: individuals who, for the purpose of claiming human remains and/or associated funerary objects, can trace their ancestry without interruption to the individual whose remains or associated funerary objects are being sought. This ancestry must be traceable through the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization. Only American Indian and Native Hawaiian lineal descendents may claim human remains or associated funerary objects. These descendents need not be enrolled members of an Indian tribe or Native Hawaiian organization, and lineal descent does not have to be proved with scientific certainty, only by a preponderance of the evidence.

· Indian Tribe: any organization of Native Americans recognized by the federal government as such, including Alaska Native corporations. You can find a list of these tribes here and can contact them by accessing the Native American Consultation Database. Indian tribes are the only entities who may claim unassociated funerary objects, sacred objects, and cultural patrimony in the 48 contiguous states and Alaska.

· Native Hawaiian Organization: a group that represents the interests of descendents of the aboriginal peoples who occupied the Hawaiian Islands before 1778. The two major Native Hawaiian organizations recognized by NAGPRA are the Office of Hawaiian Affairs and Hui M~lama I N~ Kãpuna 'O Hawai'i Nei. Only Native Hawaiian organizations may claim unassociated funerary objects, sacred objects, and cultural patrimony related to Native Hawaiians.

· Right of Possession: This means a museum or federal agency is legally justified in claiming ownership of a cultural item. The only justification for such a claim is that a Native American individual or group that legitimately owned the item in the first place gave or sold it to the museum. It doesn't matter how old the item is, how long it has been in a museum's collection, or how innocent a museum may have been to the facts of the item's separation from its original owner. This definition relies on the idea of cultural property: that some things do not belong to individuals, but to groups, and no single individual within a group may sell or give away an item belonging to the group. Just like the president may not sell the Lincoln Memorial to Canada, a member of a tribe may not sell an item of cultural property to a museum. Conversely, in the case of human remains and associated funerary objects, only individuals who are lineally descended from the deceased may sell or donate these items; tribes or other Native American groups have no authority to do so. There is also the vexed question of whether human remains are "property" at all; no legal consensus has emerged on this issue.

It is worth noting that, in a legal sense, a "right of possession" is a looser standard

than "ownership." That is, while a museum may have no right of possession to an object under NAGPRA, it may still "own" it under otherwise applicable property law. This thrusts us into an exceedingly complex legal area in which the rules are constantly changing, and that it would be fruitless for us to enter in this discussion. However, it is important to keep in mind one thing when considering the property

rights aspect of NAGPRA: NAGPRA is not property law; it is human rights law, in which the relationship of a person or a culture to a particular physical object is paramount and standard notions of "property" do not necessarily apply.

· Cultural Affiliation: This is the relationship of a present-day tribe to an older group, based on a shared group identity. It is used to determine which Native American organizations, if any, may make claims for cultural items the origin of which is not immediately apparent. There are three criteria for determining cultural affiliation:

1. Existence of a present-day Indian tribe or Native Hawaiian organization as defined above.

2. Existence of an identifiable earlier group, which may be supported by:

a. Evidence of the earlier group's identity and cultural characteristics

b. Evidence of the earlier group's material culture and its distribution

c. Evidence that the earlier group was a biologically distinct population.

3. Evidence that the present-day tribe is descended from the earlier group and hence has a shared group identity.

Like lineal descent, cultural affiliation does not need to be proven with scientific certainty, but only by a preponderance of the evidence. Types of evidence that may be used are geographical, kinship, biological, archeological, linguistic, folklore, oral tradition, historical evidence, or other information or expert opinion. The link between an older group and a contemporary one does not need to be unbroken, but some demonstrable connection must exist.

What Are "Cultural Items"?

"Cultural Items" is the term used in NAGPRA to designate which artifacts must be returned to Indian tribes. Cultural items fall into four categories: Human Remains, Funerary Objects (Associated and Unassociated), Sacred Objects, and Cultural Patrimony.

Human Remains

These are just what they sound like - the physical remains of once living Native Americans, usually bones. The definition of human remains explicitly does not include "naturally shed" remains such as hair and teeth but is limited to remains that were purposefully located in a particular gravesite.

A note on "burial": The word "burial" as used in NAGPRA does not necessarily mean interment within the earth. Until NAGPRA, Native American grave sites were not accorded the same legal status as those of whites because they were frequently neither marked nor below ground, and hence not technically "cemeteries" entitled to legal protection. Furthermore, Indian gravesites were often abandoned, either by custom or because of forced removal of a tribe from their homeland. Under U.S. common law, an "abandoned" gravesite is not protected from desecration. The NAGPRA regulations rectify this by defining "burial site" as "any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as part of the death rite or ceremony of a culture, individual human remains were deposited, and includes rock cairns or pyres which do not fall within the ordinary definition of gravesite."

Funerary Objects

These are items that, as part of the death rites of a tribal culture, were placed with or near the body of a particular individual. As defined by NAGPRA's regulations, an object is funerary only if "a preponderance of the evidence" shows that it was removed from such a burial site. ("Preponderance of the evidence" is a legal term meaning that a decision need only be 51% certain).

Associated funerary objects are those that were placed with remains which are also in the control of a museum or federal agency. The objects and remains need not be controlled by the same institution in order for the objects to be defined as funerary. Associated funerary objects are further defined as items "made exclusively for burial purposes or to contain human remains." Interestingly, this expands the original definition of funerary objects in general to include items not necessarily connected with the burial of a particular individual. Example: cradleboard made of long reeds bound with larger twigs and fastened with twine or rope, found with human remains in the Guadalupe Mountains in Texas in 1934 or 1935 and held by the Carlsbad Museum and Art Center in Carlsbad, New Mexico.

Unassociated funerary objects are those not associated with any human remains in the custody of a museum or federal agency. Items used as part of a death rite but not left with the remains and instead distributed to living tribal members according to tradition are not considered unassociated funerary objects, but it is not clear if they are considered associated funerary objects or simply private property. As mentioned above, items made for burial purposes or for containing human remains - while not associated with any specific remains - are defined as associated funerary objects. Example: A crescent-shaped silver gorget (a piece of armor that protects the throat) with "FINEY GEORGE" engraved on the front and two snakes engraved on the back. The gorget was removed from the grave of Piney George, a Catawba Indian who was also a captain in the Revolutionary War, and ended up with the Museum of Early Southern Decorative Arts in Winston-Salem, North Carolina.

Sacred Objects

These are items with a specific ceremonial purpose that are needed by traditional Native American religious leaders for present-day religious ceremonies. Items that were used for religious purposes in the past but no longer would serve that function are not included, unless they are needed for the renewal of a traditional ceremony or religious observance. "Sacred" in the context of NAGPRA is community-based; items viewed as sacred solely by individuals are not included in the definition. Example: A Thunder Bundle consisting of weasel and ermine skins, two feather fans, small hide and cloth bundles, drum, four pipe stems, grizzly claw necklace, six rattles, whip, and a parfleche pouch. The bundle, needed for traditional Blackfeet Indian religious practices, was alienated from the tribe in 1899 and donated to the Cheney Cowles Museum in Spokane, Washington in 1977.

Note on "traditional religious leaders": these are tribal or organizational members who are either responsible for conducting a tribe's traditional religious ceremonies, or are leaders of a tribe based on the tribe's "cultural, ceremonial, or religious practices."

Cultural Patrimony

Like sacred objects, cultural patrimony is a community-based term. It means cultural property - items that belong to a tribe or organization as a whole and may not be sold or given away ("alienated") by an individual. In order to qualify as cultural patrimony under NAGPRA, an item must have been considered inalienable by its tribe or organization at the time it was separated from the group. Example: A Chilkat robe or blanket made in the traditional style of mountain goat wool and cedarbark given to the Anchorage Museum of History and Art in Anchorage, Alaska in 1973 by a private collector, and rightfully belonging to the Kaagwaantaan Wolf House, represented by the Central Council of the Tlingit and Haida Indian Tribes.

How Does NAGPRA Work?

There are two essential categories to keep in mind when dealing with NAGPRA: Where and What. Each category is divided into two parts, and where a cultural item falls within this schema determines what to do with it. What I have attempted to do is create a kind of step-by-step guided tour of what NAGPRA rules apply when a certain thing is found in a certain place. Not every rule will be relevant to every reader. This is not an exhaustive analysis of every conceivable permutation of NAGPRA's operation, but instead a user-friendly guide to its key procedures.

Where

1. Federal or tribal land
2. Museum or federal agency

What

A. Human remains and associated funerary objects
B. Unassociated funerary objects, sacred objects, and cultural patrimony

Category 1A: Human remains and associated funerary objects found on federal or tribal land

·Intentional Archaeological Excavations: After November 16, 1990 - the date of NAGPRA's enactment - intentional excavations of cultural items on tribal or federal land are permitted only if the following four conditions are met. These conditions also apply to intentional excavations the aim of which is not to unearth Indian remains or artifacts, but which are likely to do so inadvertently.

1. The excavation must comply with the Archaeological Resources Protection Act (ARPA), which includes getting a permit from the federal agency that administers the land, which can be anything from the Bureau of Indian Affairs to the Army Corps of Engineers. You can read the text of ARPA here. [http://archnet.uconn.edu/topical/crm/usdocs/arpa79.html]

2. If the project is on federal land, the administering federal agency must consult with the appropriate tribe before issuing any excavation permit. If the project is on tribal land, no work can commence without approval from the tribe.

3. Any excavated cultural items must be given to the appropriate individuals or tribes following NAGPRA's custody regulations (described below).

4. Proof of consultation or consent must be shown to the federal agency official who issues the excavation permit. Of course, on federal land, the consulter and the issuing official are the same person, but on tribal land this rule means that once the tribe approves the project this approval must be presented to the Bureau of Indian Affairs before excavation can begin.

Consultation before excavation on federal lands: Once the appropriate federal agency official is notified of a planned excavation that is likely to unearth artifacts or remains, it is then his or her job to consult with any Native American individuals and/or tribes that may be connected to the human remains and associated funerary objects expected to be unearthed. Whoever is doing the actual excavation does not participate in the consultations. Federal consultation with lineal descendants and tribes must result in a written plan of action, which describes what will be done if any cultural items are discovered, and must at a minimum document:

  1. What objects will be considered cultural items;
  2. What information will be used to determine custody of the items;
  3. The planned treatment of the recovered items;
  4. The planned archaeological treatment of the recovered items;
  5. The kinds of analysis planned for each recovered item;
  6. How Indian tribe officials will be contacted following excavation;
  7. What traditional treatment the lineal descendants or Indian tribe officials will afford the recovered items;
  8. What reports will be written; and
  9. By what means repatriation will be accomplished.

What happens if human remains or associated funerary objects are found: ARPA provides detailed guidelines as to how to excavate and remove cultural items. For federal lands, once the items are out of the ground, federal agency official must be notified, and the official will then follow whatever process has been outlined in the written plan of action. If cultural items are discovered on tribal lands, then whatever agreement the private excavator has reached with the tribe must be followed.

In determining proper custody of human remains and associated funerary objects uncovered during a planned excavation, both the tribal official and the federal agency official must give custody to, in descending order of priority:

  1.    Lineal descendants of the deceased.
  2.    The Indian tribes on whose land the remains or objects were found.
  3.    The tribe with the closest cultural affiliation to the remains and objects. (This assumes that the items were found on federal land).
  4.    The tribe that, according to a final judgment of the Indian Claims Commission or the United States Court of Claims, was the aboriginal occupant of the land where the items were found. The Indian Claims Commission adjudicated Native land claims against the United States from 1949 to 1978, when the Commission was abolished and the Court of Claims took over the job.
  5.    The tribe that, regardless of aboriginal heritage, has the strongest cultural relationship with the uncovered items. "Cultural relationship" is different from "cultural affiliation" in that it appears to demand a far lower standard of proof. Neither NAGPRA nor its regulations spell out what that standard is. However, it does appear from the statutory language that a tribe asserting a cultural relationship with excavated items may only do so after custody has been initially awarded to the aboriginal occupants.

 Inadvertent discoveries of human remains and associated funerary objects on tribal

or federal lands can happen during any number of activities, such as construction, well digging, or simple happenstance. Whoever makes such an inadvertent discovery is required to immediately call either the responsible tribal official or federal agency official. Obviously, it isn't always clear if the items found are Native American or not, but if there is any possibility at all it is best to make the phone call and let either the tribe or the government make that decision. A letter must follow the phone call so that a physical record of the discovery can be started.

Ongoing Activity on Federal Lands: If the remains or objects are discovered

during an ongoing activity on federal land the activity must cease immediately, the responsible federal agency official must be notified by phone and letter, and "reasonable" efforts must be made to protect the discovered items. The responsible federal agency official must respond to the notice of discovery within three days and, if necessary, take control of any efforts to protect the remains and objects. At this point, the responsibility of whoever is conducting the activity is over, and they must wait for the federal agency official to notify the relevant individuals and tribes and draw up a written plan of action. This process is identical to that required before a planned excavation, except in this case the cultural items have already been excavated.

The halted activity may resume 30 days after the federal agency official confirms receipt of the notice of discovery, or immediately after a written plan of action has been adopted, whichever comes first.

Custody of inadvertently discovered human remains and associated funerary objects on federal lands is determined by the same formula used for items uncovered by a planned excavation.

Ongoing Activity on Tribal Lands: If human remains or associated funerary objects are discovered during an ongoing activity on tribal land the activity must cease immediately and the tribal official must be notified via phone and letter. The important difference here is that the tribal official does not need to respond to the notice at all, or even certify that he or she received it. If the tribal official does confirm receipt, then the activity may resume 30 days later regardless of whether the tribe takes any further action. If the tribal official does nothing, then presumably the activity is halted indefinitely, but ideally the tribe and those running the activity will cooperate on a plan of excavation and repatriation.

The NAGPRA regulations suggest that if the tribe does choose to take action, they should, but do not have to, follow the custody procedures described in the above section on planned excavations. However, according to NAGPRA itself, any human remains or associated funerary objects inadvertently discovered on tribal land must be given to lineal descendants, if any can be found, and cannot simply be kept by the tribe. Of course, if there are no lineal descendants then the tribe is next in the line of succession.

· Culturally Unidentifiable Human Remains, or, Meet Kennewick Man: (NB: Many significant developments in the Kennewick Man case have occurred since this piece was written in the summer of 1999. Please consult the Kennewick Man Virtual Interpretive Center for up-to-date information.)

When the NAGPRA regulations were enacted in 1995 the section titled "Disposition of culturally unidentifiable human remains" was marked "Reserved," meaning that no regulations had yet been written. Whoops! Because of the Kennewick Man controversy, what to do with such remains, (which would only be found on federal land or in museums or federal agencies since in the case of remains found on Indian land the issue of cultural affiliation does not arise) became NAGPRA's first major legal test, one that the law was obviously unfit to address.

Note: By far the best on-line source for information on Kennewick Man is the "Kennewick Man Virtual Interpretive Center" run by the Tri-City Herald. "Kennewick Man" is a skeleton believed to be over 9,000 years old, which was found on the shore of the Columbia River near Kennewick, Washington in July of 1996. The two students who found the bones called the police, who turned the bones over to the coroner, who asked James Chatters, a local anthropologist, to take a look at them. Chatters got a permit from the Army Corps of Engineers, who controlled the shoreline where the bones were found, to excavate more bones from the site. Along with three other scientists, Chatters was able to perform preliminary tests on the skeleton, which showed it to be approximately 9,200 years old - one of the oldest complete skeletons ever found in North America. But before further tests could be done the Army Corps of Engineers, took custody of the skeleton and made plans to repatriate it to a tribal coalition led by Umatilla tribe, who intended to re-bury the remains of who they called "The Ancient One." The Corps was acting under what they understood as their responsibility under NAGPRA, which also required them to publicly announce the planned repatriation so as to give notice to other possible claimants.

Enter the national anthropological community, eight members of which - all distinguished scientists - sued the Corps for the right to study the skeleton before it was reburied. Complex legal wrangling and maneuvering ensued, as well as national media attention, including pieces in The New York Times, The New Yorker, and on 60 Minutes. Much of the coverage sought to portray the conflict as one between the disinterested forces of science, who only wanted to know more about the prehistory of North America, and the fundamentalist Umatilla tribe, who were playing the "oppressed Indian" card in order to retard scientific advancement. Also thrown into the mix was the Asatru Folk Assembly, a California group who practiced an ancient Norse-derived religion. They claimed Kennewick Man as a European forebear and supported scientific testing of the bones.

It was this European angle that was perhaps the most controversial and least understood aspect of the case. If the initial claim of Kennewick Man's age was correct (and it looks like it is), then he would have roamed the Pacific Northwest long before the Umatillas or their ancestors were there. Moreover, a reconstruction of Kennewick Man's skull by Dr. Chatters showed him with distinctly non-Native American features - features that some anthropologists described as "European" (though to be accurate they were also reminiscent of the Ainu people from Japan as well as various Siberian peoples.)

Extrapolating from this evidence, a popular theory emerged: There is no connection between Kennewick Man and current Native Americans; hence Native Americans must have arrived after Kennewick Man, maybe even driving his people to extinction; hence Native Americans aren't really indigenous; hence they have no more claim over American than more recent European descendants (i.e. the Pilgrims and the Manifest Destiny crowd); hence the government shouldn't give them all those special rights (such as NAGPRA); hence the Indian motivation for demanding burial of Kennewick Man isn't based on religion but on fear - the fear that their position on the moral high ground of U.S.-Indian relations will swiftly tumble once science reveals that they really aren't true Native Americans after all. Gotcha!

Of course, nothing of the sort is even close to being proven, and the most pointed threat - that Indians will lose their rights as indigenous people as a result of Kennewick Man - was explicitly rebuked in a 1997 letter by Francis P. McManamon, the Department of Interior's Consulting Archeologist, who is responsible for drafting NAGPRA regulations. In a response to a query from the judge presiding over the lawsuit by the eight scientists seeking to examine Kennewick Man, McManamon replied that, under NAGPRA, the terms "Native American" and "indigenous" are synonymous: both refer to "human remains and cultural items relating to tribes, peoples, or cultures that resided within the area now encompassed by the United States prior to the historically documented arrival or European explorers [approximately 500 years ago], irrespective of when a particular group may have begun to reside in this area, and, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian tribes."

But since Kennewick Man has no lineal descendants, he was not found on tribal land, no tribe can as yet demonstrate any cultural affiliation, and the shore where he was found is not the aboriginal land of any recognized tribe, he cannot, at least under current NAGPRA regulations, be repatriated to the Umatillas or anyone else. So does this mean that the eight scientists win? Not so fast.

The Department of the Interior has taken control of the skeleton from the Army Corps of Engineers and appointed a team of scientists to perform non-intrusive examinations in order to determine Kennewick Man's age and origin. In mid-July of 1999, the scientific team announced that they had run Kennewick Man's skull measurements through a database describing almost 300 different populations and there were no matches. Of course, the cranial profile of a people can change over time, and so Kennewick Man could well be the ancestor of any number of current populations - including the Umatillas and the tribes they represent - or simply an example of a people who no longer exist.

This is where cultural affiliation comes in. Once the biological data has been completed, anthropologists will take over and try to determine Kennewick Man's cultural affiliation, if any. "We'll look at biological information, archaeological information, creation myths and other things," said Francis McManamon, "it will take a long time." However, if it turns out that no cultural affiliation exists, there is still no guarantee that Kennewick Man will be given over completely to scientific study, at least according to the Department of the Interior's "Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains," which was published on June 23, 1999.

This proposal suggests that NAGPRA regulation of unidentifiable remains, such as those of Kennewick Man, be governed by four principles:

1. Respect: all human remains, regardless of their origin or scientific value, must be treated respectfully.

2. Equity: it is important that all groups perceive the regulations as fair.

3. Doability: the regulations must be worth the effort to comply with.

4. Enforceability: regulations that cannot be enforced are pointless.

The proposal also suggests different repatriation regulations for different kinds of unidentifiable remains, (i.e., do the remains have any educational, historical, or scientific value) as well as different documentation requirements.

The draft principles of agreement conclude with the suggestion that the best solution for what to do with culturally unidentifiable human remains is for institutions, federal agencies, states, and Indian tribes to offer joint recommendations on a case-by-case basis. In addition, these recommendations should be specific to the region where the remains were found, because while some Indian tribes currently live on their ancestral lands, many do not, and thus issues surrounding remains found in Arizona are dramatically different from those around remains found in Connecticut.

To be clear: the Interior Department's Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains is not the law. It is being circulated to elicit comments from Indian tribes, museums, federal agencies, and scientific groups, and only after these comments are received and integrated (or not) into the draft will the regulations become law.

Category 1B: Unassociated funerary items, sacred objects, and cultural patrimony found on federal or tribal land

The NAGPRA rules for these cultural items, whether discovered on federal or tribal land, are identical to those for human remains and associated funerary objects (see above). The only difference is that, since unassociated funerary items, sacred objects, and cultural patrimony are cultural property - that is, unable to be owned or controlled by an individual - there is no need for any consultation with lineal descendants.

Category 2A: Human remains and associated funerary objects in the possession of a museum or federal agency

(Note: For brevity's sake, in this section I will use the term "museum" to refer to both museums and federal agencies.)

· Inventories: NAGPRA requires that every museum scour its collections and identify

each and every Native American human remain and associated funerary object. This is the beginning of the inventory process, the point of which is to establish the cultural affiliation of human remains and associated funerary objects as a prelude to repatriating them.

If human remains or associated funerary objects in a museum's possession were originally gathered from federal lands (even before November 16, 1990), then the federal agency that oversees those lands is responsible for compiling inventories of those items and for taking any further steps towards repatriation that may be necessary.

The extent of museums' record keeping varies greatly, and even when copious records are kept, they may not be accurate. This is why NAGPRA requires every museum compiling an inventory to consult with the following parties, ideally at the point in the inventory after all the possible remains and associated funerary object have been gathered but before their cultural affiliation and other identifying traits have been pinpointed:

1. Lineal descendents of the individuals whose remains and associated funerary objects are controlled by the museum

2. Indian tribal officials and religious leaders from the three following categories of tribes:

a. From whose tribal lands the remains and associated funerary objects were gathered.

b. That are or are likely to be culturally affiliated with the remains or objects.

c. From whose aboriginal lands the remains and objects were gathered.

  • When a consultation is begun, the museum is required to request the following

information from its tribal consultants:

1. The name and address of the Indian tribal official who will be representing the tribe in the consultation.

2. Recommendations on conducting the consultation, including:

a. Who any lineal descendents might be and how to contact them.

b. The names of any traditional religious leaders who should be consulted and how to contact them.

3. What kinds of items the tribe believes were made exclusively for burial purposes or to contain human remains.

  • Once a consultation is in progress, the museum is required to send the following information, in writing, to lineal descendents (if known) and to Indian tribes who are or are likely to be affiliated with the museum's remains and associated funerary objects:

1. A list of all the Indian tribes that are being or will be consulted.

2. A general description of how the inventory is being conducted.

3. A general deadline for completion of the inventory.

4. Notice that any additional information used to determine cultural affiliation will be sent if requested.

The Inventory Itself: A completed inventory consists of two separate documents, plus certain "required information," which, while not technically part of an official inventory, might as well be since an inventory is incomplete without it.

1. List Number One: All human remains and associated funerary objects that are culturally affiliated with one or more present-day Indian tribes. The list must also say if there is a clear cultural affiliation or if it is merely likely based on the preponderance of the evidence.

2. List Number Two: all culturally unidentifiable human remains and associated funerary objects.

3. List Number Three ("required information") must include:

a. Accession and catalogue entries of all human remains and associated funerary objects.

b. Information on the acquisition of the item, including from whom the item was obtained, when it was acquired, where the item was originally obtained, and how the item came into the possession of the museum.

c. A description of each item or set of remains including age, dimensions, and materials. If possible, photos should be included as well.

d. A summary of the evidence used to determine the cultural affiliation of the remains and associated funerary objects. Note: In the1995 case Na Iwi O Na Kupuna O Mokapu v. Dalton the United States District Court of the District of Hawaii ruled that nothing in NAGPRA prevents a museum or federal agency from performing, during the compilation of an inventory, whatever tests are necessary to determine the cultural affiliation of human remains, even if some tribes object to the tests.

Notification of Inventory Completion:

Once a museum has completed its inventory it must notify the Interior Department's Departmental Consulting Archaeologist, relevant tribal officials, and lineal descendents. A "notice of inventory completion" is a kind of abbreviated version of Lists Number One and Three (see above), and many examples can be seen at the Notices of Inventory Completion Database. In all cases (culturally affiliated or unaffiliated items), the museum must send copies of the inventory and the notice of inventory completion to the Departmental Consulting Archaeologist, who will publish the notices in the Federal Register.

If an inventory shows definite and/or likely culturally affiliated remains and associated funerary items, then it must be sent, along with a notice of inventory completion, to the relevant tribes within six months of its completion.

If an inventory shows that human remains are of an identifiable individual, then the museum must notify any known lineal descendants of that individual. If no lineal descendants can be found, then the Indian tribe with whom the deceased was culturally affiliated must be notified.

If an inventory shows culturally unidentifiable human remains, then the list of such remains must be forwarded by the Departmental Consulting Archaeologist to the NAGPRA Review Committee. What to do with such remains will be covered under the regulations produced under the Draft Principles of Agreement (see discussion above). Until these regulations are adopted, unidentifiable remains must stay with the museum.

Occasionally an Indian tribe, after receiving an inventory, will request further documentation from the museum. If this happens, the museum must give the tribe "a summary of existing museum of 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." The museum may not embark upon further studies pursuant to such a request.

Repatriation of human remains and associated funerary objects: After a tribe or lineal descendant is notified that items in a museum's collection may belong to them, they must formally request repatriation from the museum.

If a lineal descendant requests repatriation of human remains or associated funerary objects, the museum must confirm that the items being requested do in fact meet the official definitions of such items and that the requesting individual's connection to the deceased has been accurately and appropriately traced.

If the request is made by a tribe, the requested objects must also meet the official definitions and the tribe's affiliation with the items must also be confirmed.

Assuming that the above requirements are met, the museum must repatriate the requested items within 90 days of the request. However, repatriation cannot be made until 30 days after publication of the notice of inventory completion in the Federal Register. This is to insure that all possibly affiliated individuals and groups have a chance to claim the inventoried items and that wrongful repatriations are not made.

Non-Inventory Repatriation:

If human remains or funerary objects (both associated and unassociated) are not shown to be culturally affiliated or do not appear on an inventory or summary, an Indian tribe may still request repatriation. In these cases, a museum must turn over the requested items if the tribe can show cultural affiliation by a preponderance of the evidence based upon "geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral tradition, historical, or other relevant information or expert opinion." The items must also meet the statutory definitions of "human remains" and "funerary objects." In the case of unassociated funerary objects, the requesting tribe must also show that the museum did not have a right of possession to the object.

Since items not included in an inventory obviously won't be included in a notice of inventory completion, there is no mechanism with which to notify the public when they are eventually repatriated. To play it safe, then, when a decision is made to repatriate non-inventory items, it would probably be best to prepare a new notice of inventory completion for publication in the Federal Register, and then follow the required timeline as described above.

It is interesting to note that NAGPRA makes no provision for lineal descendants to make non-inventory requests for repatriation, despite the law's emphasis on giving such descendants primary rights to human remains and associated funerary objects in other contexts.

Category 2B: Unassociated funerary objects, sacred objects, and cultural patrimony in the possession of a museum or federal agency

(Note: For brevity's sake, in this section I will use the term "museum" to refer to both museums and federal agencies.)

Summaries:

Like inventories, summaries are intended to catalogue the holdings of a particular museum so that affiliated individuals and tribes may know where particular cultural items are housed and request their repatriation. Summaries are less comprehensive than inventories, and are only used for unassociated funerary objects, sacred objects, and cultural patrimony - in other words, "cultural property": that which is (usually) presumed to belong to groups, not to individuals.

If cultural property in a museum's possession was originally gathered from federal lands (even before November 16, 1990), then the federal agency that oversees those lands is responsible for compiling a summary of those items and for taking any further steps towards repatriation that may be necessary.

A summary may cover a museum's entire collection, or the museum official may compile separate summaries for separate portions of the collection. Either way, a summary must include:

1. An estimate of the number of objects in the collection or portion of the collection.

2. A description of the kinds of objects included

3. Reference to the means, date(s), and location(s) in which the collection was acquired, if available.

4. Information relevant to the cultural affiliation of the objects.

It is not necessary for a summary to discretely identify every single object in the collection. However, as we will see below, such identification is required in order to determine the cultural affiliation of each object.

Consultation: As with inventories, the preparation of summaries requires consultation in order to insure accurate identification and cultural affiliation of cultural items in a museum's collection. A museum must initiate consultation with tribal officials and traditional religious leaders no later than the completion of a summary, and ideally much earlier. A museum must consult with tribal leaders representing these tribes:

1. From whose tribal lands unassociated funerary objects, sacred objects, or cultural patrimony were gathered.

2. That are or are likely to be culturally affiliated with the cultural property.

3. From whose aboriginal lands the cultural property was gathered.

During summary consultation, the museum must give summaries to all lineal descendants and tribal officials who are or may be culturally affiliated with the items in question. Appendix A of the NAGPRA regulations is a sample summary to be used as a guideline for museums. A copy of the summary must also be given to the Departmental Consulting Archaeologist. In addition, the museum must request the following from any tribes who are or may be culturally affiliated with cultural objects in the museum's collection:

1. The name and address of the Indian tribal official who represents the tribe in repatriation discussions.

2. Recommendations on conduction the consultation, including:

a. who any lineal descendents might be and how to contact them (for unassociated funerary objects and sacred objects only)

b. The names of any traditional religious leaders who should be consulted and how to contact them.

3. What kinds of items the tribe considers to be funerary, sacred, or cultural patrimony.

Indian tribes are under no obligation to respond to these requests for information,

but their cooperation will make the summary process much more open and effective.

In some cases, lineal descendants or tribal officials may request further information from a museum than what is contained in a summary. Pursuant to such a request, the museum must provide, at any time and in a manner agreed to by the museum and tribal officials, "records, catalogues, relevant studies, or other pertinent data for the limited purposes of determining the geographic origin, cultural affiliation, and basic facts surrounding acquisition and accession of objects covered by the summary." The museum must also give the NAGPRA Review Committee access to this information.

Further Documentation: When determining the cultural affiliation of unassociated funerary objects, sacred objects, and cultural patrimony, a museum must take into account the following information for each specific item. This information need not be automatically submitted with a summary, but must be documented and available for perusal:

1. Accession and catalogue entries

2. Information on the acquisition of the object, including from whom the item was obtained, when it was acquired, where the item was originally obtained, and how the item came into the possession of the museum.

3. A description of each object, supplemented by photographs if possible.

4. A summary of the evidence used to determine the cultural affiliation of the object.

Notice of Intent to Repatriate: Once a museum has determined that a particular unassociated funerary object, sacred object, or object of cultural patrimony rightfully belongs to a particular lineal descendant or Indian tribe, it must prepare a "notice of intent to repatriate" and submit the notice to the Departmental Consulting Archaeologist for publication in the Federal Register. The notice must consist of:

1. Descriptions of the repatriatable items that are sufficient to allow potential claimants to determine their interest in the objects.

2. Information on how each item was identified and how the museum acquired it.

3. Indications of whether an item is either clearly culturally affiliated with a given Indian tribe or whether cultural affiliation is merely likely given the totality of the circumstances.

Examples of recent notices of intent to repatriate can be found here.

Repatriation of Unassociated Funerary Objects, Sacred Objects, and Cultural Patrimony: Once a museum's notice of intent to repatriate is published, a lineal descendant or Indian tribe may make an official request for repatriation to the museum. All requested objects must be "expeditiously" returned so long as the following requirements are met:

1. The statutory definition of each requested object is met.

2. The cultural affiliation of each object is confirmed through the summary compilation and consultation procedures.

3. The claimant (whether an individual or a tribe) presents evidence which, "if standing alone before the introduction of evidence to the contrary" shows that the museum does not have a right of possession to the requested objects.

4. The museum cannot prove that it does, in fact, have a right of possession.

Assuming that these requirements are met, the museum must repatriate the requested items within 90 days of the request. However, repatriation cannot be made until 30 days after publication of the notice of intent to repatriate in the Federal Register. This is to insure that all possibly affiliated individuals and groups have a chance to claim the items and that wrongful repatriations are not made.

· Non-Summary Repatriation: If a sacred object or item of cultural patrimony is not included in a summary for some reason, it can still be repatriated. If a lineal descendant or Indian tribe requests such an object, the museum must return it so long as:

1. The statutory definition of the object is met.

2. The museum does not have a right of possession.

3. The requesting party is a lineal descendant of the person who originally owned the object

4. The requesting Indian tribe can show that it originally owned or controlled the object. A requesting Indian tribe may also make a claim if the object was originally owned by a tribal member, but that the member either has no lineal descendants or the member's lineal descendants have failed to make a claim.

When a museum repatriates non-summarized items (which presumably were not mentioned in the original notice of intent to repatriate), the museum should prepare a separate notice for the non-summarized items, have it published in the Federal Register, and follow the requisite timeline.

Inventory and Summary Deadlines and Compliance

The original deadline for completion of all NAGPRA inventories was November 16, 1995, and the original deadline for completion of all NAGPRA summaries was November 16, 1993. Obviously, not all museums and federal agencies have completed their duties under NAGPRA. Some have applied for and received extensions from the Review Committee, while others are either dragging their feet or simply don't realize that there are items in their collections that require repatriation consideration. The Review Committee may only grant extensions for inventory completion, and then only if the museum can show that a good faith effort has been made to complete the inventory.

Congress currently gives money to various museums and Indian tribes for NAGPRA compliance activities, but because of the sheer number of hours it takes to properly comply with the summary and inventory regulations, thousands of cultural items await repatriation. Federal agencies, which NAGPRA forbids from receiving federal repatriation money, and which tend to be much larger and more decentralized than museums, are even further behind in the process.

As of April 13, 1998, 733 museums and federal agencies have either submitted complete inventories, submitted incomplete inventories, or given reasons for not submitting an inventory at al.As of June 28, 1999, 1,030 museums and federal agencies have either submitted complete summaries, submitted incomplete summaries, or given reasons for not submitting a summary at all.

The NAGPRA Review Committee is currently drafting preliminary regulations that will govern what a museum or federal agency must do if it receives a cultural item after it has completed its summaries and inventories. Currently there are thousands of Indian artifacts in private collections, many of them cultural items stolen or otherwise wrongly separated from Indian tribes and individuals. Eventually, many of these items will end up in museums, and what then? Most likely they will have to be repatriated, but further details must be worked out before anyone knows for sure.

Restrictions on Claims

There are four major exceptions to NAGPRA's repatriation regulations:

· Scientific Study: If cultural items currently possessed by museums or federal agencies are "indispensable to the completion of a specific scientific study, the outcome of which is of major benefit to the United States," then the museum or agency may retain the items for this purpose. The items must be repatriated within 90 days of the completion of the study. What a "major benefit" might be will be determined on a case-by-case basis. This exception does not apply to cultural items found on federal or tribal lands after November 16, 1990.

· Multiple Requests: If more than one Indian tribe or lineal descendent claims a cultural item, and the museum cannot determine the rightful owner by the preponderance of the evidence, then the museum must retain the item until a mutual agreement is reached or the matter is settled in court.

· The "Takings Clause": According to NAGPRA, if a court determines that NAGPRA-mandated repatriation of cultural items by a museum would result in an unconstitutional "taking," then the repatriation is void and ownership of the items must be decided by application of standard U.S. property law. The term "taking" refers to the final clause of the Fifth Amendment to the Constitution, which reads, " . . . nor shall private property be taken for public use, without just compensation." This is known as the "takings clause," and its interpretation has been fought over in court for decades by property owners, developers, museums, federal agencies, and state and local governments. The question of what is a "taking" is far too complex to be addressed here, but a few basic issues should be mentioned:

· Distinction: As noted above in the definitions section, the failure of a museum to prove a "right of possession" to an object under NAGPRA is legally distinct from a failure to prove ownership under standard U.S. property law. In other words, under NAGPRA a museum may legally "own" an object without having the right to keep it. Exactly how this distinction is measured is still an open question. But because there is a difference, the "right of possession" requirements of NAGPRA do not obviate use of the takings clause.

· Protection: Because NAGPRA mandates an enormous non-compensated transfer of property from one entity to another, its drafters though it wise to insert a reference to the takings clause, simply as a way to insure that the law would not be struck down as unconstitutional if ever directly challenged. In other words, if a museum was to challenge a repatriation claim in court by alleging an uncompensated taking, NAGPRA gives judges the option to nullify the particular repatriation without voiding the law in its entirety.

· Application: That said, for a museum to actually challenge a repatriation in court would be a gross violation of the spirit of NAGPRA. While NAGPRA is indeed a federal law enforceable in court, its thrust is to encourage cooperation and agreement between museums and scientists on one side and Indian tribes on the other, not to provide ammunition for lawsuits. In addition, NAGPRA's ethos is one of respect for Native American traditions of communal property and its animating purpose is to make amends for past injustices. In this context, the rigid application of the takings clause and its accompanying jurisprudence of ahistorical individual rights would be singularly inappropriate. So far, there have been no takings challenges to NAGPRA.

· Prediction: So, while application of the takings clause to NAGPRA could conceivably open a legal can of worms, it probably won't. Most commentators agree that museums, federal agencies, and Indian tribes will continue to act in NAGPRA's spirit of compromise and that the takings provision will be by and large ignored.

An excellent discussion of the takings clause as applied to NAGPRA is "Native American Graves Protection and Repatriation Act: Does It subject Museums To An Unconstitutional 'Taking'?" by Daniel J. Hurtado in the Fall 1993 issue of the Hofstra Property Law Journal.

· Failure to Make a Timely Claim: Museums and federal agencies need only consider claims made prior to repatriation. Any claims made after an item has been repatriated (so long as the repatriation was made the requisite 30 days after publication in the Federal Register) are not covered under NAGPRA, and must be taken up with the receiving individual or tribe. There is as yet no rule on time limits for claims for non-repatriated items.

Place and Manner of Repatriation

When repatriating a cultural item, the museum or federal agency cannot simply put it in a box and send it off. Consultations must take place with the receiving individual or tribe as to the appropriate place and manner of the transfer. In addition, the museum or federal agency must inform the receiving party whether the repatriated item has been treated with any substances, such as pesticides, that could harm the item or the person handling it.

Record of Repatriation

Each museum or federal agency must adopt a process for recording the details of each repatriation; the specifics of this process are up to the institution.

Much of the information that Indian tribes must provide to museums and federal agencies for purposes of determining cultural affiliation is sensitive, and should not be made public record. However, the Freedom of Information Act (FOIA) mandates full disclosure of all information controlled by the federal government, with certain exceptions. None of these exceptions, however, protect the kind of information used to determine cultural affiliation, and hence any information of this sort provided to a federal agency may be examined by anyone who asks to see it. It is not clear whether sensitive information provided to museums falls under FOIA, since, while the information is required by federal law, it is not "controlled" by the federal government. Nevertheless, the NAGPRA Review Committee has recommended that "museum or federal officials may wish to ensure that sensitive information does not become part of the public record by not writing down such information in the first place."

Penalties

The civil penalties for a museum's violation NAGPRA were added to the regulations in January of 1997. "Civil" in this case means that the punishment is limited to a fine, and is imposed by the Secretary of the Interior. The punishable offenses under NAGPRA are:

1. Selling or otherwise transferring human remains or any other cultural items covered by NAGPRA.

2. Failure to complete summaries by the deadline.

3. Failure to complete inventories by the deadline.

4. Failure to notify culturally affiliated Indian tribes within six months of inventory completion.

5. Failure to repatriate cultural items to lineal descendants or culturally affiliated tribes.

6. Repatriation of cultural items before publishing a notice in the Federal Register as required.

The fine for any of the above violations is .25% of the museum's annual budget or

$5,000, whichever is less. The Secretary may also levy an additional fine after taking into account the historical, traditional, and financial value of the cultural item in question, the damages suffered by the rightful owner, and the number of violations. A fine may be lessened if the museum agrees to mitigate any damages caused, if the museum acted in ignorance, if the museum cannot pay the fine, or if the fine is excessive.

The NAGPRA regulations also spell out a very detailed process for how a museum is notified of its failure to comply, how a museum may respond to such a notice, how penalties are assessed, how a hearing may be requested, how to appeal a decision, and how to pay a fine. As yet, no penalties have been assessed against any museums for violating NAGPRA, so we won't bother with the intricacies of the penalty process here. If you find yourself in the position of contesting a NAGPRA penalty, the first thing to do is hire an attorney familiar with the U.S. administrative law system.

The NAGPRA Review Committee

The Review Committee's overall purpose is to insure museum compliance with the inventory and summary provisions of NAGPRA, and to mediate and resolve any disputes that arise under the law. The committee's recommendations are not binding, but do carry a lot of weight. You can peruse the minutes of all of the committee's past meetings . These notes are a great resource for discovering what kinds of issues have arisen under NAGPRA and how the committee resolves the conflicts brought to it. The public comment section of the minutes is especially interesting for the chance it gives us to hear voices from NAGPRA's front lines: tribal leaders, museum directors, and federal agency officials. Their comments tend to be pungent and to the point, detailing the good and the bad of the entire NAGPRA process. The National Archaeological Database site (see above link) also has the committee's current membership, charter, and dispute resolution procedures.

The Review Committee is made up of seven members: three representing Indian tribes, three representing the museum and scientific community, and one recommended jointly by the first six. Review Committee meetings are usually run by Francis P. McManamon, the National Park Service's Departmental Consulting Archaeologist, and are open to the public.

A Note on Terms

In this guide the terms "Indian" and "Native American" are used interchangeably, since there is no consensus as to which term is preferable. These terms, along with "tribe/tribal" or "Native" should be read to refer to Native Hawaiians and Native Alaskans as well. NAGPRA and its regulations consistently use the term "Indian tribes and Native Hawaiian Organizations," which is simply too cumbersome to use in this context. I apologize to any reader who feels that this terminological approach is misguided or insensitive.

updated links April 1, 2004
links updated 6/26/08 rab
Links checked July 6th, 2010, FJL.