ALLEGATIONS OF FAILURE TO COMPLY
WITH THE REQUIREMENTS OF NAGPRA
Section 9 of NAGPRA states, "Any museum that fails to comply with the requirements of this Act may be assessed a civil penalty by the Secretary of the Interior pursuant to procedures established by the Secretary through regulation." 25 U.S.C. 3007(a). The regulations addressing civil penalties, found at 43 CFR 10.12, in turn, understand the phrase "fails to comply with the requirements of this Act" as also including failure to comply with applicable portions of the NAGPRA regulations, and they actually define the ways in which a museum might fail to comply. 43 CFR 10.12(a) & (b). Those regulations go on to say that "[a]ny person may bring an allegation of failure to comply to the attention of the Secretary. Allegations must be in writing, and should include documentation identifying the provision of the Act with which there has been a failure to comply and supporting facts of the alleged failure to comply. Documentation should include evidence that the museum has possession or control of Native American cultural items, receives Federal funds, and has failed to comply with specific provisions of the Act. Written allegations should be sent to the attention of the Director, National Park Service, 1849 C Street, NW, Washington, D.C. 20240." 43 CFR 10.12(c). In addition, a copy of the allegation should be sent to the attention of David Tarler, Enforcement Coordinator, National NAGPRA (2253), National Park Service, 1201 Eye St., NW, 8 th Fl., Washington, DC 20005.
This part of the National NAGPRA Program web site provides NAGPRA legal terms of art and definitions that a person should read and understand before they write an allegation, and a template to use as a guide in writing an allegation. Here, too is an example letter
afrom the NAGPRA civil penalites investigator to a potentially aggreived party who alleged that a museum failed to comply with the requirments of NAGPRA.
See also the Overview of Civil Penalties Procedures for more information. Please contact David Tarler at (202) 354-2108 with any questions you might have.
NAGPRA Legal Terms of Art and Definitions that Should be Read and Understood Before Writing an Allegation of Failure to Comply.
"Museum," "possession," "control," and "receives Federal funds" - 43 CFR 10.2(a)(3):
Museum means any institution or State or local government
agency (including any institution of higher learning) that has
possession of, or control over, human remains, funerary objects, sacred
objects, or objects of cultural patrimony and receives Federal funds.
(i) The term "possession'' means having physical custody of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony with a sufficient legal interest to lawfully treat the
objects as part of its collection for purposes of these regulations.
Generally, a museum or Federal agency would not be considered to have
possession of human remains, funerary objects, sacred objects, or
objects of cultural patrimony on loan from another individual, museum,
or Federal agency.
(ii) The term "control'' means having a legal interest in human
remains, funerary objects, sacred objects, or objects of cultural patrimony
sufficient to lawfully permit the museum or Federal agency to treat the
objects as part of its collection for purposes of these regulations
whether or not the human remains, funerary objects, sacred objects or
objects of cultural patrimony are in the physical custody of the museum
or Federal agency. Generally, a museum or Federal agency that has
loaned human remains, funerary objects, sacred objects, or objects of
cultural patrimony to another individual, museum, or Federal agency is
considered to retain control of those human remains, funerary objects, sacred objects, or objects of cultural patrimony for purposes of these
regulations.
(iii) The phrase "receives Federal funds'' means the receipt of
funds by a museum after November 16, 1990, from a Federal agency
through any grant, loan, contract (other than a procurement contract), or other arrangement by which a Federal agency makes or made available
to a museum aid in the form of funds. Federal funds provided for any
purpose that are received by a larger entity of which the museum is a
part are considered Federal funds for the purposes of these
regulations. For example, if a museum is a part of a State or local
government or a private university and the State or local government or
private university receives Federal funds for any purpose, the museum
is considered to receive Federal funds for the purpose of these
regulations.
Objects covered by NAGPRA and its implementing regulations - 43 CFR 10.2(d):
What objects are covered by these regulations? The Act covers
four types of Native American objects. The term Native American means
of, or relating to, a tribe, people, or culture indigenous to the
United States, including Alaska and Hawaii:
(1) Human remains means the physical remains of a human body of a
person of Native American ancestry. The term does not include remains
or portions of remains that may reasonably be determined to have been
freely given or naturally shed by the individual from whose body they
were obtained, such as hair made into ropes or nets. For the purposes
of determining cultural affiliation, human remains incorporated into a
funerary object, sacred object, or object of cultural patrimony, as
defined below, must be considered as part of that item.
(2) Funerary objects means items that, as part of the death rite or
ceremony of a culture, are reasonably believed to have been placed
intentionally at the time of death or later with or near individual
human remains. Funerary objects must be identified by a preponderance
of the evidence as having been removed from a specific burial site of
an individual affiliated with a particular Indian tribe or Native
Hawaiian organization or as being related to specific individuals or
families or to known human remains. The term burial site means any
natural or prepared physical location, whether originally below, on, or
above the surface of the earth, into which as part of the death rite or
ceremony of a culture, individual human remains were deposited, and
includes rock cairns or pyres which do not fall within the ordinary
definition of grave site. For purposes of completing the summary
requirements in Sec. 10.8 and the inventory requirements of Sec. 10.9:
(i) Associated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
also in the possession or control of a museum or Federal agency.
Associated funerary objects also means those funerary objects that were
made exclusively for burial purposes or to contain human remains.
(ii) Unassociated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
not in the possession or control of a museum or Federal agency. Objects
that were displayed with individual human remains as part of a death
rite or ceremony of a culture and subsequently returned or distributed
according to traditional custom to living descendants or other
individuals are not considered unassociated funerary objects. (3) Sacred objects means items that are specific ceremonial objects
needed by traditional Native American religious leaders for the
practice of traditional Native American religions by their present-day adherents. While many items, from ancient pottery sherds to
arrowheads, might be imbued with sacredness in the eyes of an
individual, these regulations are specifically limited to objects that
were devoted to a traditional Native American religious ceremony or
ritual and which have religious significance or function in the
continued observance or renewal of such ceremony. The term traditional
religious leader means a person who is recognized by members of an
Indian tribe or Native Hawaiian organization as:
(i) Being responsible for performing cultural duties relating to
the ceremonial or religious traditions of that Indian tribe or Native
Hawaiian organization, or
(ii) Exercising a leadership role in an Indian tribe or Native
Hawaiian organization based on the tribe or organization's cultural,
ceremonial, or religious practices.
(4) Objects of cultural patrimony means items having ongoing
historical, traditional, or cultural importance central to the Indian
tribe or Native Hawaiian organization itself, rather than property
owned by an individual tribal or organization member. These objects are
of such central importance that they may not be alienated,
appropriated, or conveyed by any individual tribal or organization
member. Such objects must have been considered inalienable by the
culturally affiliated Indian tribe or Native Hawaiian organization at
the time the object was separated from the group. Objects of cultural
patrimony include items such as Zuni War Gods, the Confederacy Wampum
Belts of the Iroquois, and other objects of similar character and
significance to the Indian tribe or Native Hawaiian organization as a
whole.
Definition of "failure to comply" - 43 CFR 10.12(b):
Definition of ``failure to comply.'' (1) Your museum has failed
to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human
remains, funerary objects, sacred objects, or objects of cultural
patrimony contrary to provisions of the Act, including, but not limited
to, an unlawful sale or transfer to any individual or institution that
is not required to comply with the Act; or
(ii) After November 16, 1993, has not completed summaries as
required by the Act; or
(iii) After November 16, 1995, or the date specified in an extension
issued by the Secretary, whichever is later, has not completed
inventories as required by the Act; or
(iv) After May 16, 1996, or 6 months after completion of an
inventory under an extension issued by the Secretary, whichever is
later, has not notified culturally affiliated Indian tribes and Native
Hawaiian organizations; or
(v) Refuses, absent any of the exemptions specified in Sec. 10.10(c)
of this part, to repatriate human remains, funerary object, sacred
object, or object of cultural patrimony to a lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object, or
object of cultural patrimony before publishing the required notice in
the Federal Register;
(vii) Does not consult with lineal descendants, Indian tribe
officials, and traditional religious leaders as required; or
(viii) Does not inform the recipients of repatriations of any
presently known treatment of the human remains, funerary objects, sacred
objects, or objects of cultural patrimony with pesticides,
preservatives, or other substances that represent a potential hazard to
the objects or to persons handling the objects.
(2) Each instance of failure to comply will constitute a separate
violation.
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