Cultural resource preservation law: the enhanced focus on American Indians

Air Force Law Review, Wntr, 2004 by Lauryne Wright

2. Inventory Requirement

Basically, NAGPRA tells federal agencies that as of November 16, 1990, if they have collections of certain American Indian items, they must catalog or inventory those items to determine and disclose what is in their possession. (53) A summary of a federal agency's collection is to be provided to lineal descendants, Indian tribes, or Native Hawaiian organizations, as may be applicable. (54)

Although NAGPRA requires efforts to identify the cultural affiliation of cultural items, by express provision of the statute, requests for additional documentation relating to affiliation are not to be construed as authorization for new scientific studies of the items. (55) Clarification of the statutory parameters on permissible scientific analysis and who may be qualified to determine cultural affiliation have been provided by two NAGPRA lawsuits involving human remains recovered from land controlled by the Department of the Navy on the island of Oahu, Hawaii.

a. Na Iwi O Na Kapuna O Makapu v. Dalton

In Na Iwi O Na Kapuna O Makapu v. Dalton, (56) a Native Hawaiian organization objected to a physical anthropologist's examination of a cranium (57) to determine cultural affiliation. In this, the first DoD project to fall under NAGPRA, the Navy awarded the Bishop Museum a contract to inventory human remains disinterred from the Mokapu Peninsula. The general objective was to accurately list human remains and funerary objects and to determine the number of individuals represented. (58)

In conducting its inventory, the Bishop Museum did not perform DNA analysis or generally conduct extensive metric or nonmetric analyses of the remains. Its use of standard physical anthropological methods to determine the various ages and sexes represented and, thereby, the number of individuals present was upheld:

   Examinations done for the purpose of accurately identifying cultural
   affiliation or ethnicity are permissible because they further the
   overall purpose of NAGPRA, proper repatriation of remains and other
   cultural items.[59]

   NAGPRA Section 3003(b)(2) merely prevents federal agencies and
   museums from conducting additional research after completion of the
   initial inventory. Section 3003(b)(2) is wholly inapposite to
   examinations conducted at the inventory compilation stage. The
   section's restrictive language only applies upon request by an
   Indian tribe or Native Hawaiian organization which receives or
   should have received notice [of the completed inventory, ... for]
   additional available documentation to supplement the [inventory]
   information required by subsection (a) of [Section 3003]." 25 U.S.C.
   Section 3003(b)(2) (emphasis provided). Because the Federal
   Defendant did not conduct its examination in response
   to a request for information, Section 3003(b)(2) is of no
   consequence.

   ... Section 3003(b)(2)'s restrictive language [is included] to
   prevent agencies and museums from using a request for additional
   documentation as an excuse to initiate new studies and further delay
   the repatriation process.[60]