There are many different federal, state and Native Nation laws that 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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The Indian Arts and Crafts Act of 1990 (P.L. 101-644) protects buyers and the economic and cultural livelihood of Native artists, craftspeople and Native Nations.
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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.
NEW Regulations
Our grassroots efforts working hand-in-hand with Native Nations and other repatriation advocates supported the needed changes evidenced by the final rulemaking of the Native American Graves Protection and Repatriation Act regulations, which was published in December 2023.
The new regulations:
1. Require an institution to give deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations;
2. Mandate that institutions must obtain the "free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items."
3. Provide a robust definition of "consultation" that involves consensus;
4. Did not create a separate affiliation requirement related to geographical affiliation and instead clarified the use of geography alone to find cultural affiliation;
5. Expand the reach of what constitutes a civil penalty; and
6. Establish clear timelines for actions and decision-making. While not all regulatory changes we requested occurred, the regulations will be an enormous improvement from the previous version, which left many loopholes that have been exploited for the last 30 years by several large and academic institutions.
The new regulations:
1. Require an institution to give deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations;
2. Mandate that institutions must obtain the "free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items."
3. Provide a robust definition of "consultation" that involves consensus;
4. Did not create a separate affiliation requirement related to geographical affiliation and instead clarified the use of geography alone to find cultural affiliation;
5. Expand the reach of what constitutes a civil penalty; and
6. Establish clear timelines for actions and decision-making. While not all regulatory changes we requested occurred, the regulations will be an enormous improvement from the previous version, which left many loopholes that have been exploited for the last 30 years by several large and academic institutions.
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.
THPO Talk Podcast
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Shannon O'Loughlin, our Chief Executive and Attorney 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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