There are many different federal, state and Tribal laws that may apply to sensitive cultural items. Here are a few.
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The Native American Graves Protection and Repatriation Act provides graves protection for federal and Tribal lands, mandates repatriation of Ancestors, their burial belongings and Sacred objection and cultural patrimony from federal agencies and any institution that has been in receipt of federal funds.
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The Museum of the American Indian Act governs repatriation of cultural items by the Smithsonian Institution.
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The Safeguard Tribal Objects of Patrimony Act prevents the export of Native cultural heritage to prevent these items from being exported and sold overseas.
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Native American Graves Protection and Repatriation Act (NAGPRA)
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In the late 1980s through 1990, the Association played a key role in obtaining the enactment of the Native American Graves Protection and Repatriation Act (NAGPRA), a federal law that provides graves protection for federal and Tribal lands, mandates repatriation of Ancestors, their burial belongings and sacred objection and cultural patrimony from federal agencies and any institution that has been in receipt of federal funds. The Association has been very involved in the implementation of NAGPRA, having facilitated repatriation of almost 2,000 human remains to Dakota Nations, as well as filing amicus briefs in NAGPRA cases, writing legal analyses of NAGPRA for Tribal and public use, providing NAGPRA training, and filing comments on proposed regulations. We also provide NAGPRA specific training as part of our Annual Repatriation Conference, and can customize training and technical assistance for Native Nations and institutions. |
Narrated by former Association Executive Director Jack Trope
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The Regulations
When passing NAGPRA, Congress delegated authority to develop regulations to implement the Act to the Secretary of the Interior. The current administration has provided a proposed rulemaking - completing overhauling the ineffective regulations - on October 18, 2022. Tribal consultation and the public comment period ended on January 31, 2023. You can find out more information about the regulations on the National NAGPRA Program's website.
The Association attended Tribal consultations and public sessions, and worked with the Association's Tribal Partners Working Group and its Native organization to develop comprehensive comments and changes still needed to address longstanding concerns that have burdened Native Nations, as well as museums. You can learn more about the Association's comments here:
The Association attended Tribal consultations and public sessions, and worked with the Association's Tribal Partners Working Group and its Native organization to develop comprehensive comments and changes still needed to address longstanding concerns that have burdened Native Nations, as well as museums. You can learn more about the Association's comments here:
The Act
February 16, 2022: The Association submitted comments to the Senate Committee on Indian Affairs on needed revisions to the NAGPRA legislation in response to their oversight hearing on “The Long Journey Home: Advancing the Native American Graves Protection and Repatriation Act’s Promise After 30 Years of Practice.” These comments were developed with our Repatriation Working Group and Tribal representatives. Download PDF here.
National Museum of the American Indian Act (“Museum Act”)
The Museum of the American Indian Act of 1989 governs repatriation of cultural items by the Smithsonian Institution.
Originally, the Act covered only human remains and funerary objects and provided for repatriation of all such items upon a showing of cultural affiliation. Amendments to the Act in 1996 modified it to extend coverage of the Museum Act to sacred objects and cultural patrimony based upon standards similar to those of NAGPRA. There are some differences between NAGPRA and the Museum Act and inconsistencies between the original 1989 Museum Act and the 1996 amendments, however, which could be important.
For example, the original Museum Act provided for the repatriation of unassociated funerary objects to Indian tribes simply upon showing of cultural affiliation. The 1996 amendments made the "right of possession" rule in NAGPRA applicable to the repatriation of unassociated funerary objects, but did not repeal the original section which did not require a "right of possession" showing.
In addition, the 1996 Museum Act amendments provide no definitions of "sacred objects" and "cultural patrimony." The NAGPRA definitions were probably presumed. However, because the NAGPRA definitions are somewhat narrow and have been controversial, the meaning of these terms in the context of the Museum Act may be disputed. Moreover, there is only one definition of "funerary objects" in the Museum Act, rather than separate definitions for "associated" and "unassociated" funerary objects, even though the new amendments make this distinction an important one.
The Museum Act also does not include the "scientific study" and "conflicting claims" exceptions to repatriation, as does NAGPRA, nor does it specifically address a number of other issues covered by NAGPRA such as access to information and evidence that may be used to prove cultural affiliation. It does provide for a Smithsonian Special Committee on Repatriation, however, consisting of 7 members - 4 are chosen from Tribal nominations and at least 2 must be traditional Indian religious leaders. This Committee is available to review repatriation decisions and is supposed to "ensure fair and objective consideration of all relevant evidence."
Further inconsistencies are present in the case of Native Hawaiians. The 1989 Act provided for negotiations concerning the repatriation of human remains and funerary objects between the Office of Hawaiian Affairs, Hui Malama I Na Kupuna O Hawai'i Nei and the Smithsonian, but indicated that the same principles of repatriation pertaining to Indian tribes should apply to the negotiations. The new repatriation section on unassociated funerary objects, sacred objects and cultural patrimony fully applies to Native Hawaiians. This creates the confusing situation in which repatriation of human remains and associated funerary objects is governed by a negotiated agreement, but repatriation of other objects is controlled by a specific legal standard.
Thus, although similar to NAGPRA, the Museum Act raises some unique issues where repatriation is sought from the Smithsonian.
Originally, the Act covered only human remains and funerary objects and provided for repatriation of all such items upon a showing of cultural affiliation. Amendments to the Act in 1996 modified it to extend coverage of the Museum Act to sacred objects and cultural patrimony based upon standards similar to those of NAGPRA. There are some differences between NAGPRA and the Museum Act and inconsistencies between the original 1989 Museum Act and the 1996 amendments, however, which could be important.
For example, the original Museum Act provided for the repatriation of unassociated funerary objects to Indian tribes simply upon showing of cultural affiliation. The 1996 amendments made the "right of possession" rule in NAGPRA applicable to the repatriation of unassociated funerary objects, but did not repeal the original section which did not require a "right of possession" showing.
In addition, the 1996 Museum Act amendments provide no definitions of "sacred objects" and "cultural patrimony." The NAGPRA definitions were probably presumed. However, because the NAGPRA definitions are somewhat narrow and have been controversial, the meaning of these terms in the context of the Museum Act may be disputed. Moreover, there is only one definition of "funerary objects" in the Museum Act, rather than separate definitions for "associated" and "unassociated" funerary objects, even though the new amendments make this distinction an important one.
The Museum Act also does not include the "scientific study" and "conflicting claims" exceptions to repatriation, as does NAGPRA, nor does it specifically address a number of other issues covered by NAGPRA such as access to information and evidence that may be used to prove cultural affiliation. It does provide for a Smithsonian Special Committee on Repatriation, however, consisting of 7 members - 4 are chosen from Tribal nominations and at least 2 must be traditional Indian religious leaders. This Committee is available to review repatriation decisions and is supposed to "ensure fair and objective consideration of all relevant evidence."
Further inconsistencies are present in the case of Native Hawaiians. The 1989 Act provided for negotiations concerning the repatriation of human remains and funerary objects between the Office of Hawaiian Affairs, Hui Malama I Na Kupuna O Hawai'i Nei and the Smithsonian, but indicated that the same principles of repatriation pertaining to Indian tribes should apply to the negotiations. The new repatriation section on unassociated funerary objects, sacred objects and cultural patrimony fully applies to Native Hawaiians. This creates the confusing situation in which repatriation of human remains and associated funerary objects is governed by a negotiated agreement, but repatriation of other objects is controlled by a specific legal standard.
Thus, although similar to NAGPRA, the Museum Act raises some unique issues where repatriation is sought from the Smithsonian.
Safeguard Tribal Objects of Patrimony Act (STOP Act)
On December 21, 2022, the Safeguard Tribal Objects of Patrimony Act was signed by President Biden and became federal law. The STOP Act prevents the export of Native cultural heritage to prevent these items from being exported and sold overseas. When our sensitive items cross the borders, we lose our power to return them home. The STOP Act further requires the exporter to prove they have rightful ownership of Native cultural heritage.
This act prohibits the exportation of Native American cultural items and archaeological resources that were illegally obtained; provides for the return of such items, including voluntary returns; and establishes and increases related criminal penalties.
Specifically, the act makes it a federal crime to export, attempt to export, or otherwise transport from the United States Native American cultural items and archaeological resources without obtaining an export certification. U.S. Customs and Border Protection must detain any item requiring an export certification that does not have one.
The act requires the Department of the Interior and the Department of State to each designate a liaison to facilitate and hold trainings and workshops on the voluntary return of human remains and cultural items.
Additionally, Interior must
The act also increases the maximum criminal penalties for violating the Native American Graves Protection and Repatriation Act. In particular, the act increases from 5 years to 10 years the maximum prison term for an individual convicted of a second or subsequent violation of selling, purchasing, using for profit, or transporting for sale or profit human remains or cultural items that were illegally obtained.
This act prohibits the exportation of Native American cultural items and archaeological resources that were illegally obtained; provides for the return of such items, including voluntary returns; and establishes and increases related criminal penalties.
Specifically, the act makes it a federal crime to export, attempt to export, or otherwise transport from the United States Native American cultural items and archaeological resources without obtaining an export certification. U.S. Customs and Border Protection must detain any item requiring an export certification that does not have one.
The act requires the Department of the Interior and the Department of State to each designate a liaison to facilitate and hold trainings and workshops on the voluntary return of human remains and cultural items.
Additionally, Interior must
- refer individuals and organizations to Indian tribes and Native Hawaiian organizations to facilitate the voluntary return of human remains and cultural items;
- convene an interagency working group; and
- convene a Native working group consisting of representatives of Indian tribes and Native Hawaiian organizations to provide advice on issues concerning the return of, and illegal trade in, human remains and cultural items.
The act also increases the maximum criminal penalties for violating the Native American Graves Protection and Repatriation Act. In particular, the act increases from 5 years to 10 years the maximum prison term for an individual convicted of a second or subsequent violation of selling, purchasing, using for profit, or transporting for sale or profit human remains or cultural items that were illegally obtained.
THPO Talk Podcast
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Shannon O'Loughlin, our Chief Executive and Attorney recently shared some great information on THPO Talk (an Indigenous preservation podcast) about the STOP ACT, what it is and how it impacts Native Country.
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