Native American Graves and Repatriation Act
"The Native American Rights Fund is participating in the amendment process of the Native American Graves and Repatriation Act, which is needed to fix problems in implementing NAGPRA created by Bonnichsen v. United States, 357 F.3rd 962 (9th Cir. 2004). (See page 26 of the 2004 NARF Annual Report).
Background of the Problem
In 1990, NAGPRA was passed to restore indigenous peoples' human right to protect the graves and remains of their ancestors. In 1996, a lawsuit challenged the coverage of the Act. The case attacked the Corps of Engineers' decision to repatriate a 9000 year old skeleton to a tribal coalition. Bonnichsen and accompanying controversy created many problems throughout the country in implementing NAGPRA. The case turned on the statute's definition of "Native American." The court held that proof of a significant relationship between the remains and an existing tribe is required before NAGPRA applies to the remains. This narrow interpretation of NAGPRA's coverage (1) is contrary to the intent of Congress which intended the Act to apply to all indigenous remains found in the U.S.; (2) creates a loop-hole allowing museums and agencies to unilaterally, and without consultation, determine remains not to be Native American and therefore avoid the NAGPRA process; and (3) it renders several provisions of the Act, which address remains whose cultural identification cannot be ascertained, a complete nullity. As a result, over 120,000 Native American human remains found in the U.S. may not be covered by NAGPRA. This is all contrary to the interpretation of the Act by the USDOJ in the Bonnichsen case and the DOI in implementing NAGPRA since 1990.
1. Briefing paper:
S. 2087 Native American Omnibus Technical
Corrections Act of 2007