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19 Chapter 1 The Case for NAGPRA1 JACK F. TROPE Introduction The Native American Graves Protection and Repatriation Act (NAGPRA) was part of a larger movement to recognize and rectify government actions taking place over centuries that had the goal of destroying Native American religions and cultures. For most of American history, the United States government actively discouraged and even outlawed the exercise of traditional Indian cultures and religions. For instance, from the 1890s until the 1930s, the federal government outlawed the sun dance, similar dances and religious ceremonies, and the practices of medicine men.2 It was not until the 1970s that Congress enacted the American Indian Religious Freedom Act (AIRFA).3 Although not enforceable in court, AIRFA established a federal policy to protect and preserve the right of Native Americans to believe, express, and exercise their traditional religions, including access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.4 In the late 1980s and early 1990s, an effort was made by Indian tribes and national Indian organizations, with the support of traditional practitioners, to put teeth into this policy—to protect sacred sites and burial sites and the use of ceremonial objects such as eagle feathers, and to repatriate human remains, as well as funerary and sacred objects. In 1988, a broad-based national American Indian Religious Freedom Coalition (which became known as the AIRFA Coalition) was formed by the Association on American Indian Affairs (AAIA), Native American Rights Fund (NARF), and National Congress of American Indians (NCAI). Responding to the case of Lyng v. Northwest Indian Cemetery Protective Association,5 in which the United States Supreme Court interpreted the First Amendment to the Constitution in a manner that essentially precluded Native religious practitioners from using the First Amendment to protect their sacred sites, the Coalition ultimately included numerous Indian tribes, Indian organizations, and non-Native organizations, including human rights, environmental, and religious organizations.6 At that time, I was a staff attorney with AAIA and worked closely with other tribal advocates and Congressional staff on this broad range of legislative issues, including 20 CHAPTER 1 what ultimately became NAGPRA. Simultaneously, I was working at the grass roots level with traditional tribal leaders to protect sacred sites from destructive development . Ever since, I have had the continued privilege of working on these profoundly important issues critical to the well-being of tribal communities and the continuation of tribal cultures. Although the impetus for the creation of the AIRFA Coalition had been the Lyng case, laws mandating repatriation became the initial focus of the coalition. During 1989 and 1990, a concerted national effort to enact such laws took place. The result was the passage of NAGPRA and the repatriation provisions applicable to the Smithsonian in the National Museum of the American Indian Act (NMAI Act or Museum Act),7 probably the most significant accomplishments that arose as a result of the efforts of this coalition.8 Historical background Respect for the dead is a value shared by almost all cultures. It is an integral part of the philosophical and legal structure of the United States, just as it is throughout most of the world. As noted by one analyst: “[American cases] all agree in principle: The normal treatment of a corpse, once it is decently buried, is to let it lie . . . [No] system of jurisprudence permits exhumation for less than what are considered weighty, and sometimes compelling reasons.”9 These principles are reflected in the laws of all fifty states and the District of Columbia in statutes that regulate cemeteries, prohibit grave robbing, and ensure the proper treatment of human remains. Many state laws seek to ensure that all persons are entitled to a decent burial, regardless of their economic or social status.10 In addition , judicially created common law protects the sanctity of the dead.11 Disinterment is allowed only in the most unusual circumstances and under strict conditions set by the courts.12 Unfortunately, this legal structure failed to protect the grave sites and human remains of Native peoples in this country, yet another aspect of historical discrimination against Native Americans. State laws did not protect unmarked Native graves like they protected marked graves.13 The laws also did not recognize that an entire tribe may maintain a strong cultural connection with its ancestors; instead, the right to protect human remains and grave sites under most laws was limited to the immediate next of kin. The common...


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