Protecting Native American Human Remains, Burial Grounds, and Sacred Places: Panel Discussion

Introduction by Rebecca Tsosie

NAGPRA was passed in 1990. It is a very important piece of legislation because it has legally enforceable provisions, and it does many important things and obviously remedied a huge gap in the law prior to that time. Basically, NAGPRA protects Native peoples' rights in several different ways with respect to four categories of cultural items. The first and most important one involves ancestral human remains, which are defined as physical remains of a human body of a person of Native American ancestry. I think when we get into the panel discussion we'll talk about how that is being interpreted today in a contemporary case known in the news media as the Kennewick Man case. It deals with very ancient remains of a Native person that were found in the state of Washington, and whether or not contemporary tribes in that area can claim him as an ancestor under NAGPRA. The statute also applies to funerary objects, both those that are associated with human remains and those that are unassociated. It also applies to sacred objects, which are defined as specific ceremonial objects needed by Native American religious leaders for the practice of their traditional Native American religions. The panelists will discuss how these technical definitions within the statute are being implemented. The final category is objects of cultural patrimony, defined as items having an ongoing historical, traditional, or cultural importance to the Indian tribe or Native Hawaiian organization itself, rather than being property owned by an individual member. Obviously, a key component of this category is the traditional law of the Native nation and how it describes the cultural relationship of the people with a particular item.

In addition to outlawing the commercial trafficking of human remains and funerary objects—which was just a horrible, horrible problem, and by the way, still is, despite being illegal—NAGPRA also imposes an obligation on federal agencies or museums to inventory the human remains and the sacred objects in their possession and to disclose the results so that Native people can claim repatriation rights. Those repatriation rights go to culturally affiliated tribes, and there is a technical definition in the statute for that. NAGPRA also applies to excavations that are done after the effective date of that statute on either federal land or tribal land. If they are excavated on tribal land, then they basically belong to the tribe who owns that land. But if they are found on federal land, then you have to go through that whole culturally affiliated process. NAGPRA has two reserve sections, one dealing with what they call "culturally unidentifiable human remains" and one dealing with what they call "unclaimed human remains," in other words, remains in federal repositories that have not yet been claimed. The category of "culturally unidentifiable human remains" was the subject of a grant that we did here at Arizona State University, and many of the people today that are talking to you were members of our working group—Suzan Harjo, Walter Echo-Hawk, James Riding In, Wallace Coffey, and many other people worked very hard to come up with recommendations. We had Native people from all over the country, from Hawaii, from Alaska, from within the states here, who made recommendations on that issue. Professor Riding In will talk to you more about this. The central part of it was that the whole notion of something being "culturally unidentifiable" does not make sense to Native peoples. It just doesn't resonate with Native peoples' traditions. Today it is really troublesome to me. Two days ago I went on the National Park Service Web site. I looked for the report to Congress from the NAGPRA review committee (composed of both Native and non-Native people, which advises on NAGPRA and sort of advises on disputes). They hadn't done an annual report to Congress, as they are supposed to have done, for three years. So they did a three-year report, and their summary...