Grave Meaning in Indian Law

Comment 67: Four commentators found the consultation requirements in paragraph 10.11(b) to be unworkable, burdensome, likely irreparable to undermine the strong and highly productive collaborative relationship between Indians and the scientific community, and likely to lead to hasty decisions on the disposal of culturally unidentifiable human remains. Six commenters recommended that additional guidance be included on how to conduct meaningful consultations. One commenter called for clear guidance on exactly when a particular consultation process leads to a final conclusion. Five commentators recommended that a definition of “consultation” be included in accordance with the House Report 101-877. Note 61: The preamble to the proposed provision specifically requested comments on the meaning of the term “cultural relationship” used in Section 3 of the Act (25 U.S.C. 3002) as the basis for the disposition of human remains, funerals, sacred objects, or objects of Native American cultural heritage excavated or removed from federal or tribal lands after 1990 (25 U.S.C. 3002(a)(2)(C)(2)), and was included in the proposed rule as a basis for consultation (43 CFR 10.11(b)) and disposal (43 CFR 10.11(c)) of culturally unidentifiable human remains. Only four commentators made concrete recommendations on how the term should be defined. The intent of the NAGPRA legislation is to address long-standing claims by state-recognized tribes for the restitution of human remains and cultural property illegally acquired in pre- and post-contact Native American homelands, both ancient and present. The interpretation of human and indigenous rights, prehistoric presence, cultural affiliation with antiquities and the restitution of remains and objects can be controversial and controversial. It includes provisions outlining legal procedures by which museums and federal agencies are required to return certain Native American cultural property — human remains, funerary materials, and other cultural heritage objects — to proven descendants of the lineage, culturally related Native American tribes, and Native Hawaiian groups. The tribes had many law-based reasons that required legislation to protect tribal graves and repatriate them. Our Response: In Section 13 of the Act (25 U.S.C.

3011), Congress expressly authorized the Secretary of the Interior to make regulations to enforce the Act. First, the examination of all Native American human remains and associated burial property, including those that are not culturally identifiable, falls within the scope of the law. Section 5 of the Act (25 U.S.C. 3003) requires federal agencies and museums that own or control collections or collections of Native American human remains and related grave goods to make an inventory of such objects and, if possible, disclose the geographic and cultural affiliation of such objects based on information held by each museum or federal agency. Congress assumed that not all elements could be geographically or culturally linked, and section 8 of the Act (25 U.S.C. 3006) was instructed to recommend specific measures to develop a procedure for the disposal of culturally unidentifiable human remains. Congress intended the Review Committee to be an advisory committee that makes recommendations to the Secretary (Senate Report 101-473, p. 13). An earlier version of the bill that preceded the final version of NAGPRA directed the Review Committee to submit to the Secretary and Congress its recommendations regarding the disposal of culturally unidentifiable human remains (H.R. 5237, section (7)(d), July 10, 1990). However, the congressional provision was eventually removed from the version of the law that went into effect. The sequence of amendments made to a law prior to its enactment provides strong evidence of the importance of the enacted law (INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987)). It seems, then, that while Congress may have considered limiting the secretary`s authority to pass regulations on the disposal of culturally unidentifiable human remains, that restriction was ultimately rejected. These regulations, issued in the exercise of delegated powers by Congress, implement many of the Audit Committee`s recommendations and achieve the objectives of the Act. While Congress may not have expressly delegated the authority or responsibility to enforce a particular provision of the law or filled a particular gap, it may flow from an agency`s generally delegated authority and other legal directives that Congress would expect the agency to be able to speak with the force of the law. if the Agency corrects ambiguities in the law or fills a gap in the enacted law (United Kingdom States v. Mead, 533 U.S. 218 (2001)). Our Answer: While the use of this term, as well as the term “culturally unidentifiable,” is sensitive, Congress has used both terms with specific meanings and consequences in law, so they must be used in regulations regarding the same meanings and consequences. While the National Museum of the American Indian Act and the Native American Graves Protection and Repatriation Act grant Native American tribes the right to control the physical objects of their cultures, many Native Americans continue to seek to control the intangible aspects of their cultures, including control over the importance attributed to their history and culture. While it is important to remember that there is no single view of Indigenous culture by all, or even most, Native Americans, such control is nonetheless essential to a tribe`s ability to construct and discuss its own cultural identity.

The extent to which physical control of objects ensures control of cultural identity is central to this article. Comment 95: Three commentators were concerned that the attribution of culturally unidentifiable human remains to a particular cultural group could result in the transfer of skeletal remains to a group to which they do not belong, including some of European, African and Asian descent. Comment 92: Three commentators recommended that the “priority structure” should not be the only factor in determining the disposition of culturally related or culturally unidentifiable human remains, such as agreements between Native American tribes on disposition. The late 19th century was one of the most difficult periods in Native American history in terms of the loss of cultural artifacts and land. With the creation of museums and scholarly studies on Native American peoples, which increased with the growth of anthropology and archaeology as disciplines, private collectors and museums competed for the acquisition of artifacts that many Native Americans considered ancestral domains but sold others. This competition existed not only between museums like the Smithsonian Institution (founded in 1846) and university-affiliated museums, but also between museums in the United States and museums in Europe. In the 1880s and 1890s, collection was done by untrained adventurers. In 1990, federal authorities said they had in their possession the remains of 14,500 deceased Native Americans, which had accumulated since the late 19th century.

Many institutions have reported using the remains of Native Americans for anthropological research to get more information about the people. At one time, in now-discredited comparative racial studies, institutions like the Army Medical Museum sought to demonstrate racial traits to prove the inferiority of Native Americans. [6] Our response: The provisions of the Act are based on the Model Rules of Civil Procedure. Museums and federal agencies are first required to determine in reasonable faith whether the human remains and associated grave goods are culturally related to a Native American tribe or Hawaiian Native organization (25 U.S.C.