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The Law and American Indian Grave Protection

Federal Laws

Native American Graves Protection and Repatriation Act of 1990

The Native American Graves Protection and Repatriation Act (NAGPRA) is the primary federal legislation pertaining to graves and human remains in archaeological contexts. NAGPRA establishes definitions of burial sites, cultural affiliation, cultural items, associated and unassociated funerary objects, sacred objects, cultural patrimony, indian tribes, museums, Native Americans and Native Hawaiians, right of possession and tribal land. NAGPRA gives guides and priorites concerning the ownership or control of Native American cultural items which are excavated or discovered on Federal or tribal lands after the date of enactment of the act. Guides are given concerning the intentional excavation and removal of Native American human remains and objects on Federal or tribal land, as well as for the inadvertent discovery of Native American remains and objects on Federal or trial lands. Process is established in assisting federal agencies and museums in the determination of the appropriate Native American group responsible for disposition of various human remains, funerary objects, sacred objects and materials of cultural patrimony. NAGPRA required that all museums make an inventory of such items, stipulating that geographical and cultural affiliation be identified if possible, and that upon request from a tribe a museum or federal agency would provide documentation and repatriate materials if "appropriate."
Native American human remains, graves and ritual objects located on federal and tribal land are encouraged to be protected in situ. In cases where in place preservation is not possible, or if archaeological excavation is necessary for planning or research, or if the remains are inadvertently discovered, then consultation is necessary prior to excavation under an Archaeological Resources Protection Act permit. If remains covered by the law are discovered, the project will be stopped for 30 days while the review and consultation process proceeds.

Responsibility for implementing NAGPRA has been delegated to the National Park Service's Archeology and Ethnography Division. The National Park Service's NAGPRA web site can be found at cr.nps.gov/nagpra/index.htm.

For the complete text of the statutes, amendments, and regulations go to the National Park Service's National Nagpra Database.

NAGPRA provides for grants to be available for tribes and museums in order to implement the Act. Information on applying for these grants may be found on the National Park Service's NAGPRA web site at cr.nps.gov/nagpra/GRANTS/INDEX.HTM.

The Native American Consultation Database at the National Park Service's NAGPRA website describes itself as not being a comprehensive source of information, but provides a starting point for consultation process by identifying tribal leaders and NAGPRA contacts.

The National Park Service's NAGPRA Inventory of Museums and Federal Agencies that Have Submitted a NAGPRA inventory, and Museums and Federal Agencies that have Submitted Nagpra Summaries, may be found at the National Park Service's National NAGPRA, Inventories and Summaries.

The National Park Service's NAGPRA site has also a section listing Notices of Inventory Completion (published when a museum or Federal agency has made a determination of cultural affiliation for Native American human remains and associated funerary objects in their possession or control), Notices of Intent to Repatriate (published when a museum or Federal agency receives, reviews, and accepts a claim by a tribe for sacred objects, unassociated funerary objects, or objects of cultural patrimony) and Notices of Disposition (published in newspapers by the Federal agency official responsible for cultural items excavated or removed from Federal lands). Access is at Notices.

Contacts for NAGPRA are at National Nagpra Contact Information. The National NAGPRA Organizational Chart is here as well as contact individuals regarding different aspects of NAGPRA.

More NAGPRA

The July 10, 1998 "NAGPRA Policy Statement" of the Five Civilized Tribes may be read at The People's Paths Home Page.

The Roots of NAGPRA is an interview with Steve Russell--Social and Policy Science professor at the University of Texas at San Antonio, and a member of the Cherokee Nation of Oklahoma about the history of NAGPRA--at About.com.

A review of Federal Statutes and Regulations concerning Native American human remains, associated funerary objects and ritual objects may be found at forums.law.arizona.edu/library/Chiorazzi/tjafek/Feds.htm. Page subheadings include a summary of NAGPRA, Legislative History, Federal Statues and Regulations, Oversight Hearings, Guidance from Agencies Administering NAGPRA, Attempted Amendments to NAGPRA, Other Federal Legislation, General Research and Tools. They note a good layman's summary of NAGPRA may be found at Archnet at archnet.uconn.edu/topical/crm/usdocs/nagpra8.htm. As of Oct. 16, 2000 Archnet is no longer in operation but the page is still up.

Arrowheads. com gives a full text of the act at arrowheads.com/nagpra.htm.

To find all of the relevant statutes and regulations, use FindLaw's Indian Law search engine at findlaw.com/01topics/21indian/index.html

The San Francisco State University, Dept. of Anthropology NAGPRA Compliance Project.

Nagpra-l is an email discussion list for issues related to a US Ferderal law known as the Native American Graves Protection and Repatriation Act. To subscribe, send email to [email protected] with subscribe nagpra-l in the body of your message, leaving the subject line blank. The List Moderator is Katherine Jones, Peabody Museum of Archaeology and Ethnology Email: [email protected] or [email protected]

NAGPRA Troubles

Conflict of interest criticisms have been made against the National Park Service's management of its Native American Graves Protection and Repatriation Act. Indian Country's 2001 Jan 24th story on this by Brian Stockes may be found at indiancountry.com/articles/headline-2001-01-24-07.shtml.

Go to state laws

Executive Order 13007--Indian Sacred Sites

Executive Order 13007, Indian Sacred Sites, 1996 24 May.

Indian Tribes and the Section 106 Review Process

Indian Tribes and the Section 106 Review Process at the website for the Advisory Council on Historic Preservation.

The Citizen's Guide to Section 106

Revised Section 106 Regulations, Final Rule, 2001 11 January.

American Indian Religious Freedom Act

This First Amendment Cyber-Tribune page shows the text of the American Indian Religious Freedom Act enacted August 11, 1978, which states it's the "policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."

American Indian Religious Freedom Act Amendments of 1994 may be viewed at "The Vaults of Erowid."

Court Cases

The G-O Road

Read about the G-O Road Case - - article by Andy Cochrane.

In 1957, the GO road, or Gasquet-Orleans Road, which would allow logging of a remote area "rich in Conifers", began construction in what is now the Six Rivers National Forest in the Siskyou Mountain Range. 1973 brought the first public Indian opposition to it, on the grounds the road would go through an area where Yurok sacred ceremonies were practiced. A number of legal battles followed, and in 1987, on the back of the 1978 Indian Religious Freedom Act, the case made its way to the Supreme Court. An injunction against the completion of the road was overturned 5-3. Sandra Day O'Connor stated the construction of the road wouldn't prohibit Indians from practicing their religion, likening the government's right to build a road on its own property to its right to issue every citizen a social security number. Justice William Brennan, writing the dissenting opinion, stated this decision left the Ind ians with no constitutional recourse to the gravest threats to their religious practices. Meanwhile, on the Environmentalist front, "efforts were being made to close the corridor in the Wilderness Area. In 1990, as a rider to the bill that established the Smith River Wild and Scenic National Recreation Area, the matter was finally decided, and the corridor was closed. The uncompleted section of road was less than 7 miles, with a wide two lane paved road suddenly ending into forest on both sides of the uncompleted section." So the GO Road Battle was eventually won but on environmental terms rather than on grounds of religious freedom.



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