* Act of November 16, 1990 (P.L. 101-601, 104 Stat. 3048; 25 U.S.C. 3001-3013)

Short Title

Sec. 1. This act may be cited as the "Native American Graves Pro-tection and Repatriation Act".

(25 U.S.C. 3001 (note))

Definitions

Sec. 1. For purpos-es of this Act, the term-

(1) "burial site" means any natural or prepared physical loca-tion, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human remains are deposited.

(2) "cultural affiliation" means that there is a relationship of shared group identity which can be reason-ably traced historically or prehistori-cally between a present day Indian tribe or Native Hawaiian organiza-tion and an identifiable earlier group.

(3) "cultural items" means human remains and-

(A) "associated funerary objects" which shall mean objects that, as a part of the death rite or ceremony of a culture, are reason-ably believed to have been placed with individual human remains either at the time of death or later, and both the human remains and associated funerary objects are pres-ently in the possession or control of a Federal agency or museum, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects.

(B) "unassociated funerary objects" which shall mean objects that, as a part of the death rite or ceremony of a culture, are reason-ably believed to have been placed with individual human remains either at the time of death or later, where the remains are not in the possession or control of the Federal agency or museum and the objects can be identified by a preponder-ance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specif-ic burial site of an individual cultur-ally affiliated with a particular Indi-an tribe,

(C) "sacred objects" which shall mean specific ceremonial objects which are needed by tradi-tional Native American religious leaders for the practice of traditional Native American religions by their present day adherents, and

(D) "cultural patrimony" which shall mean an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.

(4) "Federal agency" means any department, agency, or instru-mentality of the United States. Such term does not include the Smithso-nian Institution.

(5) "Federal lands" means any land other than tribal lands which are controlled or owned by the United States, including lands se-lected by but not yet conveyed to Alaska Native Corporations and groups organized pursuant to the Alaska Native Claims Settlement Act of 1971. (43 U.S.C. 1601 et seq.) (6) "Hui Malama I Na Kupuna O Hawai'i Nei" means the nonprof-it, Native Hawaiian organization incorporated under the laws of the State of Hawaii by that name on April 17, 1989, for the purpose of providing guidance and expertise in decisions dealing with Native Ha-waiian cultural issues, particularly burial issues.

(7) "Indian tribe" means any tribe, band, nation, or other orga-nized group or community of Indi-ans, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(8) "museum" means any institution or State or local govern-ment agency (including any institu-tion of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items. Such term does not include the Smithsonian Institution or any other Federal agency.

(9) "Native American" means of, or relating to, a tribe, people, or culture that is indigenous to the United States.

(10) "Native Hawaiian" means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.

(11) "Native Hawaiian organi-zation" means any organization which-

(A) serves and represents the interests of Native Hawaiians,

(B) has as a primary and stated purpose the provision of services to Native Hawaiians, and

(C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Ku-puna O Hawaii Nei.

(12) "Office of Hawaiian Af-fairs" means the Office of Hawaiian Affairs established by the constitution of the State of Hawaii.

(13) "right of possession" means possession obtained with the voluntary consent of an individual or group that had authority of alien-ation. The original acquisition of a Native American unassociated fu-nerary object, sacred object or ob-ject of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such ob-ject is deemed to give right of pos-session of that object, unless the phrase so defined would, as applied in section 7(c), result in a Fifth Amendment taking by the United States as determined by the United States Claims Court pursuant to 28 U.S.C. 1491 in which event the "right of possession" shall be as provided under otherwise applicable property law. The original acquisi-tion of Native American human remains and associated funerary objects which were excavated, ex-humed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization is deemed to give right of possession to those remains.

(14) "Secretary" means the Secretary of the Interior.

(15) "tribal land" means-

(A) all lands within the exterior boundaries of any Indian reservation;

(B) all dependent Indian communities;

(C) any lands administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3. (25 U.S.C. 3001)

Ownership

Sec. 3. (a) Native American hu-man re-mains and ob-jects.-The ownership or control of Native American cul-tural items which are excavated or discovered on Federal or tribal lands after the date of enactment of this Act shall be (with priority given in the order listed-

(1) in the case of Native American human remains and asso-ciated funerary objects, in the lineal descendants of the Native American; or

(2) in any case in which such lineal descendants cannot be ascer-tained, and in the case of unassoci-ated funerary objects, sacred objects, and objects of cultural patrimony-

(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;

(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or

(C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on Federal land that is recognized by a final judgement of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe-

(1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or

(2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cul-tural relationship with the remains or objects than the tribe or organiza-tion specified in paragraph (1), in the Indian tribe that has the stron-gest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects.

(b) Unclaimed Native American human remains and objects.-Na-tive Ameri-can cultural items not claimed under subsection (a) shall be dis-posed of in accordance with regula-tions pro-mulgated by the Secretary in consul-tation with the review committee established under section 8, Native American groups, repre-sentatives of museums and the sci-entific commu-nity.

(c) Intentional excava-tion and removal of Na-tive American human re-mains and objects.-The intention-al removal from or excava-tion of Native American cultural items from Federal or tribal lands for purposes of discovery, study, or removal of such items is permitted only if-

(1) such items are excavated or removed pursuant to a permit issued under section 4 of the Archaeologi-cal Resources Protection Act of 1979 (93 Stat. 721; 16 U.S.C. 470aa et seq.) which shall be consistent with this Act;

(2) such items are excavated or removed after consultation with or, in the case of tribal lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organiza-tion;

(3) the ownership and right of control of the disposition of such items shall be as provided in sub-sections (a) and (b); and

(4) proof of consultation or consent under paragraph (2) is shown.

(d) Inadvertent discov-ery of Na-tive American re-mains and ob-jects.-(1) Any person who knows, or has reason to know, that such person has discovered Native Amer-ican cultural items on Federal or tribal lands after the date of enact-ment of this Act shall notify, in writing, the Secretary of the Depart-ment, or head of any other agency or instru-mentality of the United States, hav-ing primary management authority with respect to Federal lands and the appropriate Indian tribe or Na-tive Hawaiian organiza-tion with respect to tribal lands, if known or readily ascertainable, and, in the case of lands that have been select-ed by an Alaska Native Corpo-ration or group organized pursuant to the Alaska Native Claims Settle-ment Act of 1971, the appropriate corpo-ration or group. If the discov-ery occurred in connection with an activity, including (but not limited to) construction, mining, logging, and agriculture, the person shall cease the activity in the area of the discovery, make a reasonable effort to protect the items discovered before resuming such activity, and provide notice under this subsection. Following the notification under this subsection, and upon certification by the Secretary of the department or the head of any agency or instru-mentality of the United States or the appropriate Indian tribe or Native Hawaiian organization that notification has been received, the activity may resume after 30 days of such certification.

(2) The disposition of and control over any cultural items excavated or removed under this subsection shall be determined as provided for in this section.

(3) If the Secretary of the Interior consents, the responsibilities (in whole or in part) under para-graphs (1) and (2) of the Secretary of any department (other than the Department of the Interior) or the head of any other agency or instru-mentality may be delegated to the Secretary with respect to any land managed by such other Secretary or agency head.

(e) Relinquishment.-Noth-ing in this section shall prevent the gov-erning body of an Indian tribe or Native Hawaiian organization from expressly relinquishing control over any Native American human re-mains, or title to or control over any funerary object, or sacred object. (25 U.S.C. 3002)

Inventory for Human Remains and Asso-ciated Funerary Objects

Sec. 3. (a) In general.-Each Feder-al agency and each museum which has possession or control over hold-ings or collections of Na-tive Ameri-can human remains and associated fu-nerary objects shall compile an inventory of such items and, to the extent possible based on information possessed by such mu-seum or Fed-eral agency, identify the geographic-al and cultural affiliation of such item.

(b) Requirements.-

(1) The inventories and identi-fi-ca-tions required under subsection (a) shall be-

(A) completed in consulta-tion with tribal government and Native Hawaiian organization offi-cials and traditional religious lead-ers;

(B) completed by not later than the date that is 5 years after the date of enactment of this Act, and

(C) made available both during the time they are being con-ducted and afterward to a review committee established under Sec. 8.

(2) The notice required by paragraph (1) shall include informa-tion-

(A) which identifies each Native American human remains or associated funerary objects and the circumstances surrounding its acqui-si-tion;

(B) which lists the human remains or associated funerary ob-jects that are clearly identifiable as to tribal origin; and

(C) which lists the Native American human remains and asso-ciated funerary objects that are not clearly identifiable as being cultural-ly affiliated with that Indian tribe or Native Hawaiian organization, but which, given the totality of circum-stances surrounding acquisition of the remains or objects, are deter-mined by a reasonable belief to be remains or objects culturally affiliat-ed with the Indian tribe or Native Hawaiian organization.

(3) A copy of each notice provided under paragraph (1) shall be sent to the Secretary who shall publish each notice in the Federal Register.

(e) Inventory.-For the pur-poses of this section, the term "in-vento-ry" means a simple itemized list that summarizes the information called for by this section. (25 U.S.C. 3003)

Summary for Un-associ-ated Funer-ary Ob-jects Sa-cred Objects and Cultural Patrimony

Sec. 4. (a) In general.-Each Feder-al agency or museum which has pos-session or control over hold-ings or collections of Native Ameri-can unassociated funerary objects, sacred objects, or objects of cultural patri-mony shall provide a written sum-mary of such objects based upon available information held by such agency or museum. The sum-mary shall describe the scope of the col-lection, kinds of objects included, reference to geograph-ical location, means and period of acquisition and cultural affiliation, where readily ascertainable.

(b) Requirements.-

(1) The summary required under subsection (a) shall be

(A) in lieu of an object-by-object inventory; (B) followed by consultation with tribal government and Native Hawaiian organization officials and traditional religious leaders; and

(C) completed by not later than the date that is 3 years after the date of enactment of this Act.

(2) Upon request, Indian Tribes and Native Hawaiian organizations shall have access to records, catalogues, relevant studies or other pertinent data for the limited purposes of determining the geographic origin, cultural affiliation, and basic facts surrounding acquisition and accession of Native American objects subject to this section. Such information shall/be provided in a reasonable manner to be agreed upon by all parties. (25 U.S.C. 3004)

Repatriation

Sec. 5. (a) Repatriation of Native American human remains and objects possessed or controlled by Federal agencies and museums.-

(1) If, pursuant to section 5, the cultural affiliation of Native American human remains and associated funerary objects with a particular Indian tribe or Native Hawaiian organization is established, then the Federal agency or museum, upon the request of a known lineal descendant of the Native American or of the tribe or organization and pursuant to subsections (b) and (e) of this section, shall expeditiously return such remains and associated funerary objects.

(2) If, pursuant to section 6, the cultural affiliation with a particular Indian tribe or Native Hawaiian organization is shown with respect to unassociated funerary objects, sacred objects or objects of cultural patrimo-ny, then the Federal agency or museum, upon the request of the Indian tribe or Native Hawaiian organization and pursuant to subsections (b), (c) and (e) of this section, shall expeditiously return such ob-jects.

(3) The return of cultural items covered by this Act shall be in consulta-tion with the requesting lineal descendant or tribe or organi-zation to determine the place and manner of delivery of such items.

(4) Where cultural affiliation of Native American human remains and funerary objects has not been established in an inventory prepared pursuant to section 5, or the summa-ry pursuant to section 6, or where Native American human remains and funerary objects are not includ-ed upon any such inventory, then, upon request and pursuant to sub-sections (b) and (e) and, in the case of unassociated funerary objects, subsection (c), such Native Ameri-can human remains and funerary objects shall be expeditiously re-turned where the requesting Indian tribe or Native Hawaiian organiza-tion can show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropo-logical, linguistic, folkloric, oral traditional, historical, or other rele-vant information or expert opinion.

(5) Upon request and pursuant to subsections (b), (c) and (e), sa-cred objects and objects of cultural patrimony shall be expeditiously returned where-

(A) the requesting party is the direct lineal descendant of an individual who owned the sacred object;

(B) the requesting Indian tribe or Native Hawaiian organiza-tion can show that the object was owned or controlled by the tribe or organization; or

(C) the requesting Indian tribe or Native Hawaiian organiza-tion can show that the sacred object was owned or controlled by a mem-ber thereof, provided that in the case where a sacred object was owned by a member thereof, there are no identifiable lineal descendants of said member or the lineal descen-dants, upon notice, have failed to make a claim for the object under this Act.

(b) Scientific study.-If the lineal descendant, Indian tribe, or Native Hawaiian organization re-quests the return of culturally affili-ated Native American cultural items, the Federal agency or museum shall expedi-tiously return such items unless such items are indispensable for comple-tion of a specific scientif-ic study, the outcome of which would be of major benefit to the United States. Such items shall be returned by no later than 90 days after the date on which the scientific study is com-pleted.

(c) Standard of repatri-ation.-If a known lineal descen-dant or an Indi-an tribe or Native Hawaiian organi-zation requests the return of Native American unassoci-ated funerary objects, sacred objects or objects of cultural patrimony pursuant to this Act and presents evidence which, if standing alone before the introduc-tion of evidence to the contrary, would support a finding that the Federal agency or museum did not have the right of possession, then such agency or museum shall return such objects unless it can overcome such infer-ence and prove that it has a right of possession to the objects.

(d) Sharing of information by Federal agencies and museums.-Any Federal agency or muse-um shall share what information it does possess regard-ing the object in question with the known lineal descendant, Indian tribe, or Native Hawaiian organiza-tion to assist in making a claim under this section.

(e) Competing claims.-Where there are multi-ple requests for repa-triation of any cultural item and, after complying with the require-ments of this Act, the Federal agen-cy or museum cannot clearly deter-mine which requesting party is the most appro-priate claimant, the agen-cy or muse-um may retain such item until the requesting parties agree upon its disposition or the dispute is other-wise resolved pursuant to the provi-sions of this Act or by a court of competent jurisdiction.

(f) Museum obliga-tion.-Any museum which repatri-ates any item in good faith pursuant to this Act shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of state law that are inconsistent with the provisions of this Act. (25 U.S.C. 3005)

Review Committee

Sec. 6. (a) Establishment.--Within 120 days after the date of enactment of this Act, the Secretary shall es-tab-lish a committee to moni-tor and review the implementation of the inventory and identification process and repatriation activities required under sections 5, 6 and 7.

(b) Membership.-

(1) The Com-mittee estab-lished under sub-section (a) shall be comp-osed of 7 mem-bers,

(A) 3 of whom shall be appointed by the Secretary from nomina-tions submitted by Indian tribes, Native Hawaiian organiza-tions, and traditional Native Ameri-can religious leaders with at least 2 of such persons being traditional Indian religious leaders;

(B) 3 of whom shall be appointed by the Secretary from nomina-tions submitted by national museum organizations and scientific organiza-tions; and

(C) 1 who shall be appoint-ed by the Secretary from a list of persons developed and consented to by all of the members appointed pursuant to subparagraphs (A) and (B).

(2) The Secretary may not appoint Federal officers or employ-ees to the committee.

(3) In the event vacancies shall occur, such vacancies shall be filled by the Secretary in the same manner as the original appointment within 90 days of the occurrence of such vacancy.

(4) Members of the committee established under subsection (a) shall serve without pay, but shall be reimbursed at a rate equal to the daily rate for GS-18 of the General Schedule for each day (including travel time) for which the member is actually engaged in committee business. Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(c) Responsibilities.-The com-mittee established under subsec-tion (a) shall be responsible for-

(1) designating one of the members of the committee as chair-man;

(2) monitoring the inventory and identification process conducted under sections 5 and 6 to ensure a fair, objective consideration and assessment of all available relevant information and evidence;

(3) upon the request of any affected party, reviewing and mak-ing findings related to:

(A) the identity or cultural affiliation of cultural items, or

(B) the return of such items;

(4) facilitating the resolution of any disputes among Indian tribes, Native Hawaiian organizations, or lineal descendants and Federal agen-cies or museums relating to the return of such items including con-vening the parties to the dispute if deemed desirable;

(5) compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for disposition of such remains;

(6) consulting with Indian tribes and Native Hawaiian organi-zations and museums on matters within the scope of the work of the committee affecting such tribes or organizations;

(7) consulting with the Secretary in the development of regulations to carry out this Act;

(8) performing such other related functions as the Secretary may assign to the committee; and

(9) making recommendations, if appropriate, regarding future care of cultural items which are to be repatriated.

(d) Admissibility of re-cords.-Any records and findings made by the review committee pursuant to this Act relating to the identity or cultur-al affiliation of any cultural items and the return of such items may be admissible in any action brought under section 15 of this Act.

(e) Recommendations and re-port.-The committee shall make the recommendations under para-graph (c)(5) of this section in con-sulta-tion with Indian tribes and Native Hawaiian organizations and appro-priate scien-tific and museum groups.

(f) Access.-The Secretary shall ensure that the committee estab-lished under subsection (a) and the members of the committee have reasonable access to Native Ameri-can cultural items under review and to associated scientific and historical documents.

(g) Duties of secre-tary.-The Secretary shall-

(1) establish such rules and regulations for the committee as may be necessary, and

(2) provide reasonable admin-istrative and staff support necessary for the deliberations of the committee.

(h) Annual report.-The commit-tee established under subsec-tion (a) shall submit an annual re-port to the Congress on the progress made, and any barriers encountered, in imple-menting this section during the previous year.

(i) Termination.-The com-mittee established under subsection (a) shall terminate at the end of the 120-day period beginning on the day the Secretary certifies, in a report submitted to Congress, that the work of the committee has been completed. (25 U.S.C. 3006)

Penalty

Sec. 7. (a) Penalty.-Any muse-um that fails to comply with the re-quirements of this Act may be as-sessed a civil penalty by the Secre-tary of the Interior pursuant to pro-cedures established by the Secretary through regulation. A penalty as-sessed under this subsection shall be determined on the record after op-portunity for an agency hearing. Each violation under this subsection shall be a separate offense.

(b) Amount of penalty.-The amount of a penalty assessed under subsection (a) shall be determined under regu-lations promulgated pur-suant to this Act, taking into ac-count, in addition to other factors-

(1) the archaeological, his-torical, or commercial value of the item involved;

(2) the damages suffered, both economic and noneconomic, by an aggrieved party, and (3) the number of violations that have occurred.

(c) Actions to recover penalties.-If any museum fails to pay an assessment of a civil penalty pursuant to a final order of the Secretary that has been issued under subsection (a) and not ap-pealed or after a final judgment has been rendered on appeal of such order, the Attorney General may institute a civil action in an appro-priate district court of the United States to collect the penalty. In such action, the validity and amount of such penalty shall not be subject to re-view.

(d) Subpoenas.-In hearings held pursuant to subsection (a), subpoe-nas may be issued for the attend-ance and testimony of wit-nesses and the production of rele-vant papers, books, and documents. Witnesses so summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. (25 U.S.C. 3007)

Grants

Sec. 8. (a) Indian tribes and Na-tive Ha-waiian organiza-tions.-The Secre-tary is autho-rized to make grants to Indian tribes and Native Hawaiian organizations for the purpose of assisting such tribes and organiza-tions in the repa-triation of Native American cultural items.

(b) Museums.-The Secretary is authorized to make grants to museums for the purpose of assist-ing the museums in conducting the invento-ries and identification re-quired un-der sections 5 and 6. (25 U.S.C. 3008)

Savings Provi-sions

Sec. 9. Nothing in this Act shall be con-strued to-

(1) limit the authority of any Federal agency or museum to-

(A) return or repatriate Native American cultural items to Indian tribes, Native Hawaiian orga-nizations, or individuals, and

(B) enter into any other agreement with the consent of the culturally affiliated tribe or organi-zation as to the disposition of, or control over, items covered by this Act;

(2) delay actions on repatria-tion requests that are pending on the date of enactment of this Act;

(3) deny or otherwise affect access to any court;

(4) limit any procedural or substantive right which may other-wise be secured to individuals or Indian tribes or Native Hawaiian organiza-tions; or

(5) limit the application of any State or Federal law pertaining to theft or stolen property. (25 U.S.C. 3009)

Special Relation-ship Between Fed-eral Gov-ernment and Indian Tribes

Sec. 10. This Act reflects the unique relationship between the Federal Government and Indian tribes and Native Hawaiian organizations and should not be construed to establish a precedent with respect to any other individual, organization or foreign government. (25 U.S.C. 3010)

Regulations

Sec. 11. The Secretary shall promulgate regulations to carry out this Act within 12 months of enactment. (25 U.S.C. 3011)

Authorization of Appropriations

Sec. 12. There is authorized to be appropriated such sums as may be necessary to carry out this Act. (25 U.S.C. 3012)

Enforcement

Sec. 13. The United States dis-trict courts shall have jurisdiction over any action brought by any person alleg-ing a violation of this Act and shall have the authority to issue such orders as may be neces-sary to en-force the provisions of this Act. (25 U.S.C. 3013)