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This report by the foreign law research staff of the Law Library of Congress’s Global Legal Research Directorate includes surveys of eleven selected jurisdictions on the legislative and policy frameworks affecting the protection of sacred places of indigenous peoples, their graves, remains, related artifacts, and indigenous cultural property generally. 

In the United States, a 1990 law, the Native American Graves Protection and Repatriation Act (NAGPRA) addresses the identification, repatriation, protection, regulated excavation, and custody of indigenous human remains and related cultural objects.[1]  The individual surveys in this report reflect research on whether there are corresponding laws in the selected jurisdictions similar to NAGPRA, and more generally discuss the protection of indigenous cultural patrimony. 

I. Native American Graves Protection and Repatriation Act

NAGPRA authorized development of a “process for determining the rights of lineal descendants and Indian tribes and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with which they are affiliated.”[2]  

NAGPRA required most federal agencies and museums that received federal funds to inventory human remains and associated funerary objects and attempt to determine the cultural affiliation of each item.[3]  The law required agencies and museums to notify affected Indian tribes and Native Hawaiian organizations, and to provide a written summary describing the objects, acquisition information, cultural affiliation, and related information.[4]  NAGPRA requires agencies and museums to repatriate human remains and funerary objects, as well as other sacred objects or objects of cultural patrimony, to lineal descendants, Indian tribes, or Native Hawaiian organizations that are known or whose cultural affiliation can be determined.[5] 

NAGPRA provides that any person who wishes to excavate human remains, funerary objects, sacred objects, or objects of cultural patrimony from federal or tribal lands may do so only after obtaining a permit.[6]  Such a permit is conditioned on meeting specified requirements,[7] including complying with the Archaeological Resources Protection Act (ARPA),[8] and consultation with and consent of interested Indian tribes or Native Hawaiian organizations.[9]  

Any person who inadvertently discovers such cultural items must immediately notify the responsible federal agency official with respect to federal lands or the responsible Indian tribe official with respect to tribal lands.[10]  If the discovery occurs during ongoing activity like construction or mining, the activity must cease and a reasonable effort must be made to protect the items.[11]  If on federal lands, the responsible federal official must take immediate steps to secure and protect the items, notify and consult with interested lineal descendants, Indian tribes or Native Hawaiian organizations, and ensure that any excavation and disposition is carried out lawfully.[12]  If on tribal lands, the responsible tribal official may similarly take appropriate steps to protect the items and ensure any excavation or disposition complies with specified requirements and procedures.[13]

NAPRA vests custody, ownership, and control of discovered or excavated human remains and funerary objects in lineal descendants, if they can be ascertained.[14]  With respect to remains or funerary objects for which such descendants cannot be determined, or with respect to other types of cultural items, custody, ownership, and control is vested in the Indian tribe aboriginally occupying the federal land, or the tribe or Native Hawaiian organization with the strongest demonstrated relationship with the cultural items.[15]  Federal agencies with unclaimed cultural items must care for and manage them in a manner consistent with detailed regulations.[16]

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II. Comparative Analysis

The jurisdictional surveys in this report reflect broad differences around the world in how governments seek to protect indigenous cultural property. 

The survey on Australia describes a complex array of Commonwealth, state, and territorial legislative regimes.  Commonwealth law protects indigenous heritage in areas of national significance, prohibits the export of protected objects, and provides backstop protection where state or territorial laws are ineffective.  A Commonwealth statute, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, sets forth requirements governing the discovery of Aboriginal remains, including reporting such discovery to the government, consultation with Aboriginals with interest in the remains, and repatriation or safekeeping of such remains.  Each state and territory in Australia has laws that protect indigenous heritage sites and objects, and provide procedures with respect to the discovery of human remains.

In New Zealand, statutes are in place that ensure the involvement of Māori in decision-making with respect to activities that could impact areas of interest to Māori, regulate the handling of Māori artifacts and provide a process for determining ownership of such items. In addition, government guidelines address the legal requirements and management of human remains that have been uncovered through accidental discovery, excavation, or natural processes such as coastal erosion that are Māori in origin, and provide for recognition of the role of Māori in managing such remains.

In Norway, comprehensive legislation provides for the recognition of the rights of the indigenous Sami people, and cultural objects of the Sami are protected by general cultural heritage legislation.  Sami human remains have been repatriated by Norwegian cultural institutions, although the government has not passed legal requirements for the conservation and return of Sami human remains.  Excavation and archeological studies of Sami graves are subject to the control or regulation of the government.        

In Russia, archaeological activities, including the discovery and treatment of artifacts, graves, sacred places, and places of worship, are regulated by a general cultural heritage statute.  Archaeological activities require permits, and the discovery of items of cultural heritage must be reported to governmental authorities.  In the event of an accidental discovery of an object of archaeological heritage, the person making the discovery must immediately suspend work and report the discovery to the regional body for the protection of objects of cultural heritage, which will assess the cultural and historic value of the discovery.  Objects of archaeological heritage are under state ownership.

In Taiwan, a law known as the Indigenous Peoples Basic Law provides for the consultation and participation of indigenous groups in determinations regarding land development, resource utilization, ecology conservation, or academic research on or adjacent to indigenous land.  Protection of indigenous cultural heritage is governed by a general cultural heritage preservation law and subsidiary legislation on indigenous heritage.  While not required by law, some instances of the return of indigenous peoples’ human remains reportedly have occurred in Taiwan.

In South Africa, cultural heritage protection, including the protection of graves and sacred spaces, is governed by a general law known as the National Heritage Resources Act.  The law provides for preservation of gravesites of cultural significance, and for consultation with communities that have an interest in the gravesites.  The unexpected discovery of graves during development activities requires stopping the activity and alerting the responsible heritage resources authority, which must consult with interested communities and make arrangements for exhumation and re-interment or other appropriate measures.

In Canada, there are some federal laws relating to indigenous heritage protection, and there is a set of national standards and guidelines relating to the recognition, management, and conservation of historical places in Canada, but most cultural heritage legislation is at the provincial and territorial level.  Each province and territory has developed legislation to address cultural heritage and indigenous relations.  The Canada survey provides a detailed description of cultural heritage law and policy in British Columbia, which among other things provides significant protections for burial places of historical or archaeological value, and of human remains and associated heritage objects.

In Brazil, archeological sites, including Indian ones, belong to the government and are considered part of the national historical heritage.  Federal agencies are responsible for preserving the country’s cultural heritage.  Indigenous sacred spaces and gravesites are not the subject of separate legislation but rather are covered by general laws governing the preservation of cultural heritage. 

Similarly, Peru does not have specific legislation on the protection of sacred indigenous spaces, but instead indigenous art, materials, graves discovered in archeological excavations, and discoveries are considered part of the nation’s cultural patrimony and are governed by a general law on the protection of cultural heritage of Peru and its regulations.    

Likewise, in Mexico, historic artifacts and human remains are the property of the nation and are managed exclusively by the Mexican State.  All archeological research must be either conducted directly by Mexico’s National Institute of Anthropology and History or by scientific institutions authorized by that institute.

Lastly, in the European Union, while general EU policies support the promotion of the rights of indigenous peoples—including their right to maintain, protect, and develop the manifestations of their cultures, such as archaeological and historical sites and artefacts—recognition of indigenous groups’ status, self-determination, and autonomy is left to the competency of the individual Member States.

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Prepared by Luis Acosta
Chief, Foreign, Comparative, and International Division II
March 2019

[1] Pub. L. 101-601, 104 Stat. 3048 (1990), codified at 25 U.S.C. §§ 3001-3013 (2012).  NAGPRA is one of several federal statutes affecting indigenous cultural property.  For a comprehensive overview of federal and state law affecting cultural property in the United States, see Sherry Hutt, Caroline Meredith Blanco & Stan N. Harris, Cultural Property Law: A Practitioner’s Guide to the Management, Protection, and Preservation of Heritage Resources (2d ed. 2017).

[2] 43 CFR § 10.1(a) (2018).

[3] 25 U.S.C. § 3003.

[4] 25 U.S.C. §§ 3003, 3004. 

[5] 25 U.S.C. § 3005.

[6] 25 U.S.C. § 3002(c); 43 CFR § 10.3.

[7] 43 CFR § 10.3.

[8] 16 U.S.C. §§ 470aa–470mm (2012).  ARPA was enacted in 1979 with the goal of preserving and protecting archaeological sites on public and Indian lands.  16 U.S.C. § 470aa(b).  ARPA prohibits the unauthorized excavation and removal of archaeological resources, and provides for a permitting process for private persons to be allowed to excavate.  16 U.S.C. § 470cc.  Excavation of such without a permit is subject to criminal or civil sanction.  16 U.S.C. §§ 470ee, 470ff.  If the federal land manager in charge of the application determines that a permit may result in harm to a religious or cultural site, the manager must notify any Indian tribe that may consider the site as having religious or cultural importance.  16 U.S.C. § 470cc(c).  Any permit for excavation or removal of an archaeological resource located on Indian lands may be granted only after obtaining the consent of the Indian tribe having jurisdiction over such lands, and shall include such terms and conditions as the tribe requests.  16 U.S.C. § 470cc(g)(2). 

[9] 43 CFR § 10.3(b)(2).

[10] 43 CFR § 10.4(b).

[11] 43 CFR § 10.4(c).

[12] 43 CFR § 10.4(d).

[13] 43 CFR § 10.4(e).

[14] 43 CFR § 10.6(a)(1).

[15] 43 CFR § 10.6(a)(2).

[16] 43 CFR § 10.7.

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Last Updated: 12/30/2020