22 March 2019 - Article
There is a saying that people often treat the dead better than they do the living. Whether as a way to honor and respect the dead or to cope with the loss, we assign a high level of care to funerary artifacts and remains. In recognition of the heightened cultural and religious importance of such objects to the native people of the United States, Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990. Two purposes are served by NAGPRA: 1) to repatriate Native American artifacts and human remains which are possessed or controlled by Federal agencies and museums; and 2) to protect items that are found on or within Federal or tribal land from unauthorized excavation. NAGPRA supplements the Archaeological Resource Protection Act of 1979 (ARPA). Congress enacted ARPA to protect the nation’s heritage represented by the archaeological items on Indian lands from uncontrolled excavation and pillaging. Both Acts have led to improved relations and trust between the native peoples of the United States and the community of archaeologists, collectors and museums. However, both laws present special challenges for collectors of Native American artifacts.
How does NAGPRA affect collectors of art and museums?
NAGPRA is designed to repatriate – or return to legally-recognized groups – certain Native American artifacts and human remains that are possessed or controlled by Federal agencies or museums. So what happens if a collector allows part of its collection to be displayed at a museum? The items will not fall under NAGPRA unless the collector cedes possession or control to a federally subsidized museum or institution of higher learning. Possession, as used in the statute, is not mere physical custody but requires a degree of legal ownership as well. Control requires a legal interest in the object, whether or not in the possession of an institution subject to NAGPRA. If a collector simply loans the art to a museum, even for an indefinite period, NAGPRA may not apply; Congress did not want to inhibit collectors from sharing their artwork by displaying it in a museum. If, however, the museum gains ownership or control of the artwork, NAGPRA becomes relevant. Therefore, if a collector of Native American art makes an inter vivos gift or leaves a collection to an institution subject to NAGPRA through his or her will, the entire collection could be repatriated to a qualified tribe. Properly drafted loan agreements, therefore, are of critical importance to any collector who desires to display Native American artifacts in a museum, to prevent an altruistic loan from leading to loss of ownership.
Which institutions are subject to NAGPRA?
NAGPRA extends to federally funded museums (other than the Smithsonian, which is exempted from the statute) and federally-funded institutions of higher learning. Most museums and universities in the United States receive some direct or indirect federal assistance, so it is prudent to assume that most are subject to NAGPRA.
What objects are covered by NAGPRA?
The Act applies to certain funerary artifacts and remains from any people or culture indigenous to the United States. These peoples include American Indians, Native Hawaiians, and Alaskan Natives. Although NAGPRA is confined to excavations on federal or tribal land, or to artifacts owned or controlled by federally funded museums or agencies, this does not mean that state law does not come into play as well. At least 13 states have passed statutes to protect all unmarked Indian graves, including those that are found on the private land of non-Indians. The objects themselves must either be human remains or funerary objects, sacred objects or objects of cultural patrimony.
How does ARPA come into play?
ARPA applies to public lands and Indian lands. Excavation and removal of archaeological resources cannot be performed on these lands without a permit from the Federal land manager. As an extension of this, no person may sell, purchase, or exchange any archaeological resource if it was obtained illegally (without the permit described above) or they could be guilty of trafficking in archaeological resources – an action which carries heavy penalties. For artifacts excavated prior to the Act’s implementation in 1979, proof of permit and other documentation are not required. Otherwise, documentation of the excavation permit and of the artifact’s origination are essential.
The emphasis in ARPA and NAGPRA on properly conducted excavation should lead a careful collector to engage in thorough due diligence before purchasing vintage indigenous objects in order to determine if any of them are susceptible to the Acts.