NAGPRA: the basics

1. 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. .

2. 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

3. 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

4. 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 associated or unassociated • 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

5. 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

6. 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

7. NAGPRA: 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 has been designated—often referred to as CUI • Institution/ 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, groups from whose aboriginal lands the items were removed • If institution/agency is unable to prove that it has 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 per State or other burial law

8. 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

9. NAGPRA: Summary & Inventory • 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.

10. 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 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.

11. 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-iteminventory. • 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.

12. 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.

13. 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.

14. 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: • Associated Funerary Objects: 1,256,.200 • Unassociated 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

15. 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

16. 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.

17. NAGPRA: Enforcement • Civil penalties may be imposed upon repositories • There are 9 ways to be non-compliant: • i. Sale/transfer of NAGPRA items contrary to law • ii. Failure to complete a summary • iii. Failure to complete an inventory • iv. Failure to notify tribes within 6 mo. after inventory • v. Refusal to repatriate • vi. Repatriation prior to a notice in the Fed Register • vii. Failure to consult with tribes 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

18. 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