NAGPRA: THE BASICS

By Lee Rains Clauss

1st NAGPRA Community Meeting

Sherwood Valley Rancheria of Pomo

Willits, CA

March 1, 2014.This meeting is supported by a grant from the Department of the Interior, National Park Service, National NAGPRA Program.

What is NAGPRA?

The Native American Graves Protection and Repatriation Act (25 U.S.C. 3001-3013) Regulations—43 CFR Part 10 Passed on November 16, 1990

Two main objectives: Resolve disposition of Native American cultural

items and human remains under the control of Federal agencies and American institutions that receive Federal funding

Resolve ownership and control of cultural items and human remains discovered on Federal or Tribal lands after November 16, 1990

NAGPRA: Who is involved?

Federal agencies (excluding the Smithsonian) who have control of NAGPRA cultural items

American institutions that receive federal funds Museum University or college State agency Local agency

Lineal descendants of the deceased Federally-recognized Indian tribes (including

Alaska Native Corporations) and Native Hawaiian organizations

NAGPRA: What does it include?

Human Remains: physical remains of a Native American These can be considered affiliated or unidentifiable

Funerary Objects: objects placed near individual human remains as part of a death rite or ceremony These can be considered affiliated or unaffiliated

Sacred Objects: objects needed for the modern-day practice of traditional Native American religions

Objects of Cultural Patrimony: group-owned objects having ongoing importance to the group

NAGPRA: Cultural Affiliation

Native American: “of, or relating to, a tribe, people or culture that is indigenous to the United States”

Cultural affiliation: a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Tribe or NHO and an identifiable earlier group

NAGPRA: The Affiliation Evidence

Cultural affiliation for all NAGPRA items must be determined in consultation with lineal descendants, Indian tribes and NHOs

Lines of Evidence: Biological Archaeological Anthropological Geographical Kinship Linguistics Folklore Oral traditions Historical data

NAGPRA: The Culturally Unidentifiable

43 CFR 10.11 implemented on March 15, 2010 Applies to human remains and associated

funerary objects previously determined to be Native American, but for which no lineal descendant or culturally affiliated tribe or NHO has been designated—often referred to as CUI

Institution or agency must consult about disposition of CUI with Tribes or NHOs from whose tribal lands the remains were originally interred and then, if need be, Tribes or NHOs from whose aboriginal lands the items were removed.

If institution or agency is unable to prove that it has a right of possession, it must offer to transfer control of the items to (1) Tribes or NHOs, (2) non-federally recognized tribes, or reinter the items according to State or other burial law.

NAGPRA: Provenience of CUI Tribal land: lands within the exterior

boundaries of any Indian reservation, all dependent Indian communities, or any lands administered for the benefit of Native Hawaiians

Aboriginal land: Federal land that is recognized by a final judgment of the Indian Claims Commission as the aboriginal land of a Tribe

NAGPRA: Summaries & Inventories

Federal agencies and institutions receiving Federal funds are required to compile summaries and inventories of NAGPRA cultural items

Summaries (Section 6): Lists of unassociated funerary objects, sacred objects, and objects of cultural patrimony; To be completed by 1993

Inventories (Section 5): Lists of human remains and associated funerary objects (AFO); To be completed by 1995

Museums and Federal agencies receiving a new collection, or having collections of new Indian tribes, must prepare or update inventories within 2 years and summaries within 6 months. If the museum receives Federal funds for the first time, summaries are due in 3 years and inventories in 5 years.

NAGPRA: The Summary Process

1. Institution or Federal agency produces a summary description of objects in its collection that fit, or might fit, one of the categories of cultural items and distributes it to all potential culturally affiliated Indian tribes or NHOs.

2. Institution or Federal agency consults with Indian tribes or NHOs, upon request, to identify NAGPRA cultural items.

3. Indian Tribes or NHOs submit written request, and if deemed satisfactory, the institution or Federal agency publishes a Notice of Intent to Repatriate.

4. There is a 30-day waiting period, in the case there are competing claims.

5. Transfer of control occurs within 90 days of receipt of a satisfactory, unchallenged claim and transfer of possession occurs based on mutual agreement of all parties.

NAGPRA: The Inventory Process 1. Institution or Federal agency consults with tribes or NHOs

to determine if human remains and AFO in its collection are culturally affiliated or culturally unidentifiable.

2. Institution or agency creates an item-by-item inventory.

3. Within 6 months of completing inventory, institution or Federal agency sends copies to appropriate Indian tribe(s) or NHO(s) and publishes a Notice of Inventory Completion in the Federal Register.

4. Indian Tribes or NHOs submit written request, and if deemed satisfactory, the institution or Federal agency publishes a Notice of Intent to Repatriate.

5. There is a 30-day waiting period, in case of competing claims.

6. Transfer of control occurs within 90 days of receipt of a satisfactory, unchallenged claim and transfer of possession occurs based on mutual agreement of all parties.

NAGPRA: Excavation & Discovery

Section 3 of NAGPRA discusses how to resolve ownership of NAGPRA cultural items found on tribal or Federal lands, under two different scenarios, after November 16, 1990

Intentional Excavation: Prior to planned excavation, through consultation, develop a Plan of Action regarding disposition and removal. Also, publish a Notice of Intended Disposition and transfer control after 30 days.

Inadvertent Discovery: Stop work immediately, protect the site, consult with Tribes, and develop a plan. Then, publish a Notice of Intended Disposition and transfer control after 30 days.

Who owns/controls NAGPRA items discovered after 1990?

On Tribal land: Human remains and AFO belong to the lineal descendant(s). If no lineal descendant , items belong to the “tribal land” Indian

tribe/NHO. Unassociated funerary objects, sacred objects, and objects of

cultural patrimony belong to the “tribal land” Indian tribe or NHO. On Federal land: Human remains and AFO belong to the lineal descendant(s). If no lineal descendant, control goes to closest culturally

affiliated tribe or NHO that states a claim. Control of unassociated funerary objects, sacred objects, and

objects of cultural patrimony go to closest culturally affiliated tribe or NHO that states a claim.

If cultural affiliation cannot be determined, control is with the Indian tribe that is recognized as the “aboriginal land” tribe and states a claim, unless there is a claimant whose relationship is stronger.

NAGPRA: By the Numbers

As of 2014, the numbers of CAI and CUI are: Culturally Affiliated Individuals: 57,903 Culturally Unidentifiable Individuals: 121, 623

As of 2014, the numbers of AFO and UFO are: Affiliated Funerary Objects: 1,256,.200 Unaffiliated Funerary Objects: 909,996

As of 2013, the following NAGPRA cultural items had been reported in Federal Register Notices of Intent to Repatriate: Unassociated funerary objects: 212, 289 Sacred objects: 4816 Objects of cultural patrimony: 7942 Objects that are both sacred and patrimonial: 1613 Undesignated: 236

NAGPRA: By the Numbers, cont’d

Notices of Intended Disposition (Section 3 items) 143 Notices as of 2013 representing:

1047 individuals 10,964 associated funerary objects 64 unassociated funerary objects 4 objects of cultural patrimony

NAGPRA: The Results

Online databases have increased consultation, as have the new CUI regs

Published notices allow for the transfer of 47,000+ individuals But, only about 30% (14,000 individuals) have

been reported as being transferred based on year end FY 2013 report

Grant funds $90,000 per consultation grant; $15,000 per

repatriation grant But, funds available for project awards remain a

fraction of the total requested. Repatriation requests alone have increased 300% over the last few years.

NAGPRA: Enforcement

Civil penalties may be imposed upon repositories There are 9 ways a repository might fail to comply:

i. Sale or transfer of NAGPRA items contrary to NAGPRA ii. Failure to complete a summary iii. Failure to complete an inventory iv. Failure to notify tribes within 6 months after

inventory v. Refusal to repatriate vi. Repatriation prior to a notice in the Federal Register vii. Failure to consult with tribes and/or lineal

descendants viii. Failure to inform recipients of pesticide treatment ix. Failure to offer to transfer control of CUI upon

receipt of a claim by an appropriate tribal group

NAGPRA: The Resources

National NAGPRA Office http://www.nps.gov/nagpra/INDEX.htm

(What’s New) Guidance Reporting --FY 2013 Final Report can be found at

http://www.nps.gov/history/nagpra/DOCUMENTS/Reports/FY13FinalReport.pdf

Grants Online databases YouTube videos Training events

Webinars On-location National meetings