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Native American Graves Protection and Repatriation Act (NAGPRA): Legal and Legislative Developments

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Abstract:

The Native American Graves Protection and Repatriation Act (NAGPRA) was enacted to serve as a means for museums and federal agencies to return certain Native American cultural items (including human remains) to the lineal descendants, culturally affiliated Indian tribes, or Native Hawaiian organizations. NAGPRA makes provision for both intentionally excavated and inadvertently discovered Native American cultural items on federal and tribal lands. Penalties are provided for noncompliance. A Review Committee was established by NAGPRA to monitor the various processes and to assist in dispute resolution involving repatriation issues.

Certain provisions of NAGPRA were judicially scrutinized in a series of cases concerning the disposition of the remains of an ancient man, believed to be about 9,000 years old and known as the Kennewick Man or the Ancient One, which was discovered on federal land under the jurisdiction of the U.S. Army Corps of Engineers ("COE"). The COE considered the applicability of NAGPRA to the situation, and concluded that NAGPRA was applicable. The COE proposed to return the remains to a coalition of Native American groups. This action was challenged by a group of scientists and others who successfully argued that the provisions of NAGPRA were not applicable. The U.S. Court of Appeals for the Ninth Circuit concluded in Bonnichsen v. U.S. that the remains were not identifiable with any current day Native American group, and therefore the provisions of NAGPRA did not apply.

An amendment to NAGPRA has been proposed in section 108 of S. 563, the "Native American Omnibus Act of 2005." If enacted, the amendment would define "Native American" within the context of NAGPRA so as to include a tribe, people, or culture that is or was indigenous to any geographic area that is now located within the boundaries of the United States. If enacted, the amendment could have an impact on the ultimate disposition of the remains of the Kennewick Man, as well as the control and custody of any other ancient human remains and related objects which may be discovered.

Interest in NAGPRA is particularly strong during the summer of 2005, as severe weather conditions have caused various rivers in the continental United States?such as the Missouri River?to recede. This has exposed traditional Native American burial grounds which have been subject to increased looting and vandalism.

The Senate Committee on Indian Affairs held oversight hearings on NAGPRA for July 28, 2005. The hearings focused on the proposed amendment contained in S. 563.