Native American Graves Protection and Repatriation Act

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The Native American Graves Protection and Repatriation Act (NAGPRA), Pub.L. 101-601, 104 Stat. 3048, is a United States federal law passed on 16 November 1990 requiring federal agencies and institutions that receive federal funding[1] to return Native American cultural items and human remains to their respective peoples. Cultural items include funerary objects, sacred objects, and objects of cultural patrimony. In addition, it authorizes a program of federal grants to assist in the repatriation process. It is now the strongest federal legislation pertaining to aboriginal remains and artifacts.

Contents

Background reasons

There were many reasons from both Native American tribes and the United States Congress that served as the impetus for passing this legislation. NAGPRA addresses long-standing tribal claims and it applies exclusively to human remains and cultural objects. This human rights legislation is open to liberal interpretation: What is sacred? NAGPRA was enacted primarily at the insistence and by the direction of members of Native American nations.[2]

Tribal reasoning

Tribes had many reasons based in law that made legislation concerning tribal grave protection and repatriation necessary.

  • State Statutory Law: Historically, states only regulated and protected marked graves. Native American graves were oftentimes unmarked and therefore did not receive the protection provided by these statutes.
  • Common Law: The legal system that developed over the course of settling the United States was primarily formed by the colonizing population. This law did not often take into account the unique Native American practices concerning graves and other burial practices. This extended to not accounting for government actions against Native Americans such as removal, the relationship that Native Americans as a people maintain with their dead, and many myths surrounding the possession of graves.
  • Equal Protection: Native Americans, as well as others, often found that Native American graves were treated differently than the dead of other races.
  • First Amendment: As in many other racial and social groups, Native American burial practices relate heavily to their religious beliefs and practices. When tribal dead are desecrated, disturbed, or withheld from burial it can then be understood that religious beliefs and practices are being infringed upon. Religious beliefs and practices are protected by the first amendment.
  • Sovereignty Rights: Native Americans hold unique rights as a sovereign body, leading to their relations to be controlled by their own laws and customs. The relationship between the people and their dead is an internal relationship, therefore one that is understood to be under the sovereign jurisdiction of the tribe.
  • Treaty: From the beginning of the US government and tribe relations, a right was maintained by the tribe unless divested to the US government in a treaty. The US government therefore does not have the right to disturb Native American graves or their dead because it has not been allowed through a treaty.

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