NAGPRA leaves Hawaiian burial sites vulnerable.

Posted on September 27, 2008


An ancient burial

In response to the recent CPAL post on the Naue burials lawsuit, several readers have emailed to ask why NAGPRA does not work to protect burials such as these.  In light of an excellent article released today on Indian Country Today, Applying NAGPRA in Hawaii, I thought it appropriate to answer this question with a quick post.

The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 is a U.S. federal law that requires federal agencies and federally funded institutions to return Native American cultural items and human remains to their respective tribes.  NAGPRA is inapplicable in the Brescia suit because Joseph Brescia is a private landowner, not the federal government or a museum.  NAGPRA does not prohibit Brescia digging up the bones and selling them, or building right on top of them, although Hawaii state law does.

Hawaii’s historic preservation law was enacted in 1988 has a provision for discovery and reburial of human remains.  If the remains are over 50 years old (as in the Naue burials case), then in situ (on site) preservation is preferred.  Two different processes exist for dealing with development of a lot with burials, and it is preferrable to discover burials during excavation than prior to beginning it.  The effect is that developers are discouraged from doing proper archaeological surveys because it works to their disadvantage in the permitting process.  Obviously, there are some shortfallings of the Hawaii legislation, some of which are being explored in the Brescia case.

I absolutely agree that ancient burials like those at Naue should be better protected, but NAGPRA, unfortunately, is not the vehicle through which this can be accomplished.

Further reading:

Applying NAGPRA in Hawaii on Indian Country Today.  The author explores the application of NAGPRA in Hawaii by way of the Forbes Collection litigation.

Indian Affairs leaders support NAGPRA review on Indian Country Today.