A Brief History of the Native American Graves Protection and Repatriation Act of 1990

What is NAGPRA?

The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 is a crucial piece of legislation in the history of cultural resource management, providing for the protection and repatriation of Native American and Native Hawaiian human remains and objects (United States Congress 1990:169). The basic human right to cultural heritage, and respect of that heritage, is driving force behind this Act.

Leading Up to NAGPRA

We can trace the mistreatment of Native American human remains and cultural items early on in American history. For example, once landing in the New World, the pilgrims began exploring an abandoned village, including graves. A published journal from the time, states (Winslow 1622), “We opened the less bundle likewise, and found . . .the bones and head of a little child, about the legs, and other parts of it was bound strings, and bracelets of fine white beads . . .we brought sundry of the prettiest things away with us, and covered the corpse up again.” And that is just one example. Scientists, museums, and even the U.S. Surgeon General systematically collected Native American bodies.

Many of the protections assigned to cemeteries and unmarked graves that were once part of a cemetery largely did not apply to Native American remains until late into the 20th century. All 50 states had passed statutes to regulate the disturbance and treatment of human remains, the management of cemeteries, and to prohibit vandalism and desecration. However, the wording specifically applies to recognized cemeteries (i.e. the western concept of a cemetery). Up until 1990, in Arizona it was perfectly legal—although not ethical—to excavate and sell human remains as long as the remains were not from a recognized cemetery. Even federal laws, like the Antiquities Act of 1906 did not prohibit the excavation of remains; as long as you had a permit, it was considered permissible. The Archaeological Resources Protection Act of 1974 treated human remains and sacred objects as archaeological resources, and, the law did nothing to attempt repatriation of existing collections.

Although studies showed the loss of sacred objects as incredibly damaging to Native American communities and religion, there was typically backlash by the scientific community to repatriate sacred items and human remains. In 1989, the American Association of Museums and the Heard Museum of Phoenix created a panel of museum staff, scientists, and Native Americans. This panel determined that Native American remains and sacred objects should be treated with the same respect as any human remains. The resulting report, ‘Report of the Panel for a National Dialogue on Museum-Native American Relations’ (1990), ended up providing the framework for NAGPRA.

Wording of the Law

NAGPRA, at its most basic level, is fundamentally about equal treatment under the law. The law attempts to accomplish two goals: (1) the ongoing protection of Native American graves, and (2) the repatriation of existing collections of human remains, funerary objects, sacred objects, and objects of cultural patrimony. In order to achieve these two goals, NAGPRA:

  • Outlines consulting procedures with tribes to protect existing graves and cultural materials.
  • Outlines procedures to follow if and when human remains are discovered and/or excavated.
  • Imposes criminal penalties for the trafficking of human remains and NAGPRA related items.
  • Outlines procedures to summarize and inventory human remains and NAGPRA related items in existing collections.
  • Outlines how to notify Native American and Native Hawaiian groups about the inventories, how to resolve disputes of ownership, and the repatriation process.

Why Do We Need NAGPRA?

Indigenous rights are human rights. The long history of abuse towards Native Americans, as well as scientific appropriation of Native American cultural material, indicates the need for this piece of CRM legislation. What is startling is how long it took for such a law to be implemented and it is also surprising the backlash it experienced from the archaeological community. There was a fear that the law would be detrimental to scientists’ ability to conduct studies (see the controversy surrounding Kennewick Man); but we must ask ourselves, as archaeologists and concerned citizens, what is more important: scientific studies or the informed consent of descendant communities? The answer is obvious. Archaeology should be a collaborative effort. Archaeologists need to continue to develop strong relationships with indigenous groups, going beyond just consultation by truly engaging with these communities throughout the United States. NAGPRA helped set archaeologists on a more ethical path, and hopefully, it will continue to develop a more inclusive field.

References:

King, Thomas F.

1998 Cultural Resource Laws and Practice: An Introductory Guide. Altamira Press, Walnut Creek, California.

McManamon, Francis P.

2000 Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London. Electronic Document, https://www.nps.gov/archeology/tools/laws/nagpra.htm.

United States Congress

1990 Native American Graves Protection and Repatriation Act: 25 USC 3001, November 16, 1990. Washington, D.C. U.S. Government Printing Office.

United States Congress

1974 Archaeological and Historic Preservation Act, Amended Reservoir Salvage Act, May 24, 1974. Washington, D.C. U.S. Government Printing Office.

United States Congress

1906 American Antiquities Act of 1906: 16 USC 431-433, June 8, 1906. Washington, DC: US Government Printing Office

Winslow, Edward (and others)

1622 Relation or Journal of the Beginning and Preceedings of the English Plantation Settled at Plymouth in New England, by Certain English Adventurers Both Merchants and Others. Electronic Document, http://mayflowerhistory.com/primary-sources-and-books/.

A Resource Law With Teeth: The Archaeological Resources Protection Act of 1979

ARPA-nator

This is the script from an episode I wrote and recorded for the ARCH365 Podcast on the Archaeology Podcast Network (APN) – Click Here to Listen!

On October 31st, 1979, the Archaeological Resources Protection Act, otherwise known as ARPA, was signed into law by President Carter. You might be asking yourself, so what? What’s so important about ARPA? Before ARPA, there was very little archaeologists could do to prosecute looters of archaeological sites in the United States. The Antiquities Act of 1906 was the first real US cultural resource management law, but by the 1970s, it was, well, antiquated.

What is ARPA all about?

The need to better protect archaeological resources came to the forefront in several court cases that showcased how ineffectual the Antiquities Act was in prosecuting those caught looting archaeological sites.   One case, U.S. vs Diaz pretty much declared the act unconstitutional. Something had to be done! People were getting away with damaging sites and stealing artifacts. In a later discussion on the development of ARPA, archaeologist Janet L. Friedman (Friedman 1985) wrote:

“The birth and growth of the Archaeological Resources Protection Act was a chronicle of self-righteous special interests, jealous turf-protectors, and conflicting value systems. For every archeologist devoted to protecting irreplaceable sites, there was a metal-detector manufacturer equally devoted to protecting the rights of hobbyists. For each conservationist dedicated to saving sites for all of the people, there was an enthusiast dedicated to making arrowhead collecting available to the individual.”

Fortunately, Congress took action with the help of the Society of American Archaeology, Department of the Interior, Department of Agriculture, the Department of Defense and the Tennessee Valley authority. And the law came into fruition.

The first sentence of ARPA really breaks down the law to its primary purpose: ‘to protect archaeological resources on public lands and Indian lands, and for other purposes.’ Public lands are anything regulated by the U.S. government, like the National Park Service, Forest Service, Bureau of Land Management, and so on.

The key points of ARPA

  • The law provides a variety of definitions, such as what is an archaeological resource, and what constitutes public lands.
  • Outlines a rigorous permitting system to conduct archaeological excavations.
  • Allows Native American tribes to issue or deny archaeological permits for work proposed on Indian lands.
  • Mandates that all federal agencies must consult with Native American tribes before issuing permits.
  • Provides clear and severe penalties for the looting and/or vandalism of sites. That can include a fine up to $20,000 and jail time for two years for first time offenders!
  • And, outlaws the trafficking illegally obtained archaeological resources.

So, if you’re walking along on a nice National Park Service trail and you spot a really cool projectile point or pottery fragment—can you take it? Or, if you’re visiting someplace like Mesa Verde, can you sit on the walls or carve your name near some rock art? Or, can you conduct your own so-called excavation on some site you found on Forest Service lands? With ARPA, the answer is a resounding NO! Not only could you receive a fine, you could go to jail. And you don’t want to tell people you went to jail for taking artifacts or harming a site, now would you? Thanks, ARPA!

Arch365 2017