The Native American Graves Protection and Repatriation Act

Before 1990 the legal position of a Native American burial excavated by an archaeologist was, in most American jurisdictions, that of an artefact. It belonged to the landowner or to the institution that took it, and the ordinary law protecting graves and the dead did not reach it. Museums, universities and federal agencies held very large collections assembled on that footing, some of them gathered from battlefields and from cemeteries within living memory of the communities concerned.

The Act changes the starting point. Every federal agency and every museum receiving federal funds must compile an inventory of the Native American human remains and associated funerary objects it holds, must determine as far as possible the lineal descendants or the culturally affiliated tribe or Native Hawaiian organisation, and must notify them. On request, the remains and objects are to be returned. The same duty covers unassociated funerary objects, sacred objects needed by traditional religious leaders for the practice of a religion, and objects of cultural patrimony, defined as having ongoing communal importance and therefore not alienable by any individual.

For material found after 1990 on federal or tribal land, ownership vests in the descendants or the affiliated nation, and excavation requires consultation and consent. Trafficking in Native American human remains or cultural items obtained in violation of the Act is a federal crime.

The Act set up a machinery rather than a single event, and the machinery has ground slowly. A review committee was created to oversee the process and to hear disputes. Notices of inventory completion and of intended disposition are published in the Federal Register, and a repatriation cannot proceed until they are.

The largest practical obstacle was the category of culturally unidentifiable remains. Where an institution could not establish affiliation with a present day nation, the original Act gave no route to return, and very large numbers of individuals sat in that category for two decades. A regulation issued in 2010 provided a disposition procedure for them based on the land they came from, and revised regulations effective in 2024 shifted the framework further by requiring deference to tribal traditional knowledge in determining affiliation and by requiring consent before exhibiting or researching covered items. Several major museums closed or covered displays while they worked through the new requirements.

The Act also produced its hard cases. The remains found near Kennewick in Washington State in 1996 were litigated for years over whether they were Native American within the meaning of the statute; genomic work published in 2015 supported affiliation with present day nations, and they were repatriated in 2017 under separate legislation.

The atlas records the instrument and its mechanism. The counts of what has and has not been returned change every year.

Sources Divinity Atlas Long-Form Articles, First Edition with Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony; Final RuleUnited States Department of the Interior, Office of the Secretary