13 Native American Graves Protection and Repatriation Act (NAGPRA)
Ruth Dukelow
Statutory Law
Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 101st Cong. 2nd Sess. (1990). 25 U.S.C.A. §§ 3001-3013.
Case Law
[Author’s note: unlike other case law in this textbook, the following is not a court opinion. The Native American Graves Protection and Repatriation Act (NAGPRA) provides for a seven-member Review Committee to monitor and review the implementation of the inventory and identification process and repatriation activities required under the Act. 25 U.S.C. § 3006.]
Federal Register/Vol. 77, No. 243/Tuesday, December 18, 2012/Notices 74875
DEPARTMENT OF THE INTERIOR, National Park Service [NPS–WASO–NAGPRA–11687; 2200–1100– 665]
Native American Graves Protection and Repatriation Review Committee Findings Related to the Identity and Return of Cultural Items in the Possession of the University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PA
AGENCY: National Park Service, Interior. ACTION: Native American Graves
Protection and Repatriation Review Committee: Findings.
This notice is published as part of the National Park Service’s administrative responsibilities pursuant to the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006(g)). The recommendations, findings and actions of the Review Committee associated with this dispute are advisory only and not binding on any person. These advisory findings and recommendations do not necessarily represent the views of the National Park Service or Secretary of the Interior. The National Park Service and the Secretary of the Interior have not taken a position on these matters.
The Native American Graves Protection and Repatriation Review Committee (Review Committee) was established by Section 8 of the Native American Graves Protection and Repatriation Act (NAGPRA; 25 U.S.C. 3006), and is an advisory body governed by the Federal Advisory Committee Act (5 App. U.S.C. 1–16). At its November 17–19, 2010 public meeting in Washington, DC, and acting pursuant to its statutory responsibility to convene the parties to a dispute relating to the identity and return of cultural items, and to facilitate the resolution of such a dispute, the Review Committee heard a dispute between the Hoonah Indian Association, joined by the Huna Totem Corporation, and the University of Pennsylvania Museum of Archaeology and Anthropology. The issues before the Review Committee were (1) whether, in their request for the repatriation of 38 catalogued objects deriving from the Snail House and one catalogued object deriving from the Eagle’s Nest House that are in the possession of the University of Pennsylvania Museum of Archaeology and Anthropology, the requestors proved that all the requested objects are both ‘‘sacred objects’’ and objects of ‘‘cultural patrimony,’’ as these terms are defined in NAGPRA; and (2) whether, in response to the request for the repatriation of the 39 catalogued objects, the University of Pennsylvania Museum of Archaeology and Anthropology presented evidence proving that the Museum has a ‘‘right of possession’’ to any of the objects, as this term is defined in the NAGPRA regulations. The Review Committee found that all of the requested objects are both sacred objects and objects of cultural patrimony, and that the University of Pennsylvania Museum of Archaeology and Anthropology does not have a right of possession to any of those cultural items. The Review Committee meeting transcript containing the dispute proceedings and Review Committee deliberation and findings is available from the National NAGPRA Program upon request (NAGPRA_Info@nps.gov).
Since 1924, thirty-eight cataloged objects deriving from the Ta ́ xÒ ́ Hit, or Snail House (Snail House), of the T’akÒdeintaan Clan of Tlingit Indians from Hoonah, Alaska have been in the possession of the University of Pennsylvania Museum of Archaeology and Anthropology. The Snail House is also known as TsalxÒa ́an Hit, or the Mt. Fairweather House. In addition, since 1918, a Shakee.a ́ t, or Marmot Frontlet (Frontlet) deriving from the Eagle’s Nest House of the T’akÒdeintaan Clan of Tlingit Indians also has been in the possession of the University of Pennsylvania Museum of Archaeology and Anthropology. Between 1995 and 2006, the Huna Totem Corporation and (since 2000) Hoonah Indian Association, an Alaska Native village, provided information to the University of Pennsylvania Museum of Archaeology and Anthropology that, taken together, constituted a joint request for the repatriation of the 39 cataloged objects in question. The request identified each of the objects in question as a ‘‘sacred object’’ and an object of ‘‘cultural patrimony,’’ as these terms are defined in NAGPRA (25 U.S.C. 3001(3)(C) and (D)). In its June 19, 2009 response to this request, the University of Pennsylvania Museum of Archaeology and Anthropology acknowledged that one of the objects is a sacred object and an object of cultural patrimony; six of the objects are sacred objects, but are not objects of cultural patrimony; and one of the objects is an object of cultural patrimony, but is not a sacred object. The University of Pennsylvania Museum of Archaeology and Anthropology also stated that, while it had a ‘‘right of possession’’ to these eight cultural items, as defined in the NAGPRA regulations (43 CFR 10.10(a)(2)), nonetheless, it would elect not to assert its right of possession. The June 19, 2009 response also stated that the other 31 cataloged objects ‘‘do not meet the specific NAGPRA definitions for cultural patrimony or sacred objects’’ and, additionally, asserted the University of Pennsylvania Museum of Archaeology and Anthropology’s right of possession to those 31 objects.
Disputing the University of Pennsylvania Museum of Archaeology and Anthropology’s determination that only one of the 39 catalogued objects was both a sacred object and an object of cultural patrimony, as well as the Museum’s claim of right of possession to the 39 cataloged objects and assertion of that right with respect to 31 of the objects, the Hoonah Indian Association and the Huna Totem Corporation joined in asking the Review Committee to facilitate the resolution of the dispute between themselves and the University of Pennsylvania Museum of Archaeology and Anthropology. The Designated Federal Official for the Review Committee agreed to the request.
At its November 17–19, 2010 meeting, the Review Committee considered the dispute. The issues before the Review Committee were (1) whether, in their request for the repatriation of the 39 catalogued objects in question, the requestors proved by a preponderance of the evidence that all the objects are ‘‘sacred objects’’ and objects of ‘‘cultural patrimony,’’ as these terms are defined in NAGPRA; and (2) whether, in response to the request for repatriation, the University of Pennsylvania Museum of Archaeology and Anthropology presented evidence proving, by a preponderance of the evidence, that the Museum has a ‘‘right of possession’’ to the objects. As defined in the NAGPRA regulations, ‘‘ ‘right of possession’ means possession obtained with the voluntary consent of an individual or group that had authority of alienation.’’
Findings of Fact: Six Review Committee members participated in the fact finding. One member was self- recused. By a vote of six to zero, the Review Committee found that all 39 of the requested cataloged objects are both sacred objects and objects of cultural patrimony, and that the University of Pennsylvania Museum of Archaeology and Anthropology does not have a right of possession to any of the requested cultural items.
Dated: November 7, 2012.
Mervin Wright, Jr., Acting Chair, Native American Graves Protection and Repatriation Review Committee. [FR Doc. 2012–30443 Filed 12–17–12; 8:45 am]
Commentary
NAGPRA was enacted in 1990 to provide protection for Native American cultural items, including sacred objects, objects of cultural patrimony, funerary objects, and ancestral human remains. With some exceptions, NAGPRA requires federally-funded museums, agencies, and other institutions to repatriate items covered by the Act to Indians and Indian tribes.
NAGPRA sets forth a process for federal agencies and federally-funded museums to inventory their holdings and return remains and funerary objects to the appropriate tribe (25 U.S.C.A. §§ 3003-3005). There is an exception for museums holding a “right of possession,” i.e., possession acquired with consent of the person or group holding the “authority of alienation” (25 U.S.C.A. §§ 3001, 3005c). There is also a delay exception for specific scientific study, “the outcome of which would be of a major benefit to the United States” (25 U.S.C.A. § 3005b).
NAGPRA confers criminal liability on anyone who “knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession” (18 U.S.C.A. § 1170a). NAGPRA also prohibits the unauthorized excavation and removal of artifacts and remains from federal or tribal land (25 U.S.C.A. § 3002).
NAGPRA and similar state repatriation statutes were enacted to address the historical and ongoing injustices in the collection and disposition of Native American remains. Prior to NAGPRA, Native American graves were routinely dug up, with the remains and funerary objects sold or parceled off to museums (Deloria 10-15). In 1971, a cemetery near Glenwood, Iowa, was unearthed during a road construction project. Twenty-six Christian burials were discovered, including a Native American woman and her child. The remains of the non-Native Americans were reburied, but the remains of the Native American woman and child were sent to an Iowa museum. Maria Pearson, a Yankton Sioux, petitioned the Iowa governor to return the remains for proper reburial. Her lobbying work eventually resulted in the enactment of the Iowa Burials Protection Act of 1976 (Treuer 337).
Kennewick Man/Ancient One: Litigation and Legislation
In 1996, human remains discovered along the Columbia River near Kennewick, Washington, were determined to be more than 8,000 years old. The remains, referred to as Kennewick Man or the Ancient One, became the subject of dispute between scientists who wanted to study the remains and five Native American tribes who wanted the remains repatriated to them for reburial. The scientists brought a lawsuit against the United States, and in 2002, the Oregon District Court ruled in favor of the scientists (Bonnichsen et. al. v. United States et. al., 217 F. Supp. 2d 1116 [D. OR. 2002]), ruling that the government had failed to prove that the remains were Native American and that therefore, NAGPRA did not apply (Bruning 501-503).
Subsequent DNA testing revealed that Kennewick Man/Ancient One was genetically linked to one of the five claimant Native American tribes. On December 16, 2016, President Obama signed Public Law 114-322 providing for the repatriation of Kennewick Man/Ancient One to the claimant tribes (§1152). On February 18, 2017, members of the five tribes reburied the remains on the Columbian Plateau in Washington State (Scientific American 10).
Penn Museum Repatriation
A major component of the findings above in the University of Pennsylvania Museum of Archaeology and Anthropology (“Penn Museum”) dispute centered on the Penn Museum’s “right of possession” as defined in NAGPRA. The artifacts were purchased by the Penn Museum in 1924 from Archie White, head of the Snail House. The Penn Museum argued that their purchase gave them “right of possession,” and the Tlingit argued that White did not have the authority to sell the objects without consent of the entire clan (Putnam 4). The Review Committee found that the Penn Museum did not have “right of possession.”
Scenarios
Scenario 1.
You are the Head Archivist at the State Library, Museum, and Archives. You and the Museum Director report to the State Librarian, who in turn reports to the Director of the State Department of Education. You have recently been awarded a multi-year federal grant for the purpose of locating and digitizing 19th century diaries, letters, memoirs, and other primary source materials relating to the early settlement of your state. In response to a press release about the grant, a local family offers to donate a collection to the Archives, but only if the Archives agrees to accept and retain the entire collection and not to sell, give away, or otherwise distribute any individual item from the collection. The collection consists of seventeen original handwritten diaries from 1850-1900, thirty letters, several dozen arrowheads, three clay pots, a clay pipe, a beaded leather shirt, and four pieces of jewelry made of human hair. The letters and diaries are unique and would be highly valuable to your grant project and to historical research. Discuss the Archives’ options and legal considerations in accepting the collection. [Note: see also the Contract Law Basics chapter, Gift Agreements section, in this textbook at: mlpp.pressbooks.pub/librarylaw/chapter/contract-law-basics/ ]
Scenario 2.
Despite any objections you may have raised under Scenario 1, the Director of the State Department of Education accepts the family’s donation, and you begin digitization and transcription of the collection, including digital photographs of the artifacts, all of which are posted online with links from the State Library’s catalog. A local federally-recognized Native American tribe objects to your posting the image of a ceremonial pipe and requests that the Archives remove the photo and repatriate the pipe to the tribe. Discuss the Archives’ options and legal considerations.
Works Consulted
Biolsi, Thomas, and Larry J. Zimmerman, eds. Indians and Anthropologists: Vine Deloria, Jr., and the Critique of Anthropology. U of Arizona P, 1997.
Brown, Michael F. Who Owns Native Culture? Harvard UP, 2003.
Bruning, Susan B. “Complex Legal Legacies: the Native American Graves Repatriation Act, Scientific Study, and Kennewick Man.” American Antiquity, vol. 17, no. 3, July 2006, pp. 501-521.
Conference of Western Attorneys General, issuing body. American Indian Law Deskbook. Thomson Reuters, 2019.
Deloria, Vine, Jr. God is Red: a Native View of Religion. Fulcrum Publishing, 2003.
Fine-Dare, Kathleen S. Grave Injustice: the American Indian Repatriation Movement and NAGPRA. U of Nebraska P, 2002.
Gunn, Steven J. “The Native American Graves Protection and Repatriation Act at Twenty: Reaching the Limits of Our National Consensus.” William Mitchell Law Review, vol. 36, no. 2, January 2010, pp. 503-532, open.mitchellhamline.edu/wmlr/vol36/iss2/9.
Putnam, Jennifer L. “NAGPRA and the Penn Museum: reconciling science and the sacred.” CONCEPT, vol. 37, 2014, pp. 1-22, concept.journals.villanova.edu/article/view/1718.
Richman, Jennifer R., and Marion P. Forsyth, eds. Legal Perspectives on Cultural Resources. AltaMira P, 2004.
Scientific American Board of Editors. “Who Owns the Dead?” Scientific American, vol. 318, no. 6, Jun. 2018, p. 10.
Treuer, David. The Heartbeat of Wounded Knee: Native America from 1890 to the Present. Riverhead Books, 2019.
Author
Ruth Dukelow is a graduate of The Catholic University of America (MSLS) and Duke University School of Law (JD). Prior to retirement, she was the Executive Director of CLIC-Cooperating Libraries in Consortium in St. Paul, MN. Previously, she was the Associate Director at Midwest Collaborative of Library Services/Michigan Library Consortium. Prior to that, she was the legal specialist in the Library Development Division at the Library of Michigan where she assisted all types of Michigan libraries with legal questions relating to library service. She has worked in public, academic, and law libraries, and she also worked in a law firm for two years doing oil and gas law before returning to library work. In 2009, she received the Michigan Library Association’s Librarian of the Year Award. She is the author of The Library Copyright Guide (AECT 1992).
