§3001 — Title 25 Indians | U.S. Code

Summary

Defines important words used in this chapter about Native American and Native Hawaiian burials, cultural items, lands, and the agencies that handle them. Burial site — any place, natural or made, where human remains are put as part of a culture’s death rites. Cultural affiliation — a historical or prehistoric link between a present-day tribe or Native Hawaiian organization and an earlier group. Cultural items — human remains and four kinds of related objects: associated funerary objects (items buried with specific remains and now held by a federal agency or museum, including things made for burial); unassociated funerary objects (items tied to burials when the remains are not held by the agency or museum and can be linked to specific people or graves by strong evidence); sacred objects (ceremonial items needed by traditional religious leaders); and cultural patrimony (objects central to a group’s culture that belong to the group, not to individuals, and could not be sold). Federal agency — any U.S. department, agency, or instrumentality, but not the Smithsonian. Federal lands — U.S.-owned or -controlled lands outside tribal lands, including lands chosen but not yet given to Alaska Native Corporations under the Alaska Native Claims Settlement Act of 1971. Hui Malama I Na Kupuna O Hawai’i Nei — the nonprofit Native Hawaiian group incorporated April 17, 1989, to advise on cultural and burial issues. Indian tribe — any tribe, band, nation, or similar group recognized as eligible for special U.S. programs and services, including Alaska Native villages. Museum — an institution or state/local agency (including colleges) that gets federal funds and holds Native American cultural items; not the Smithsonian or other federal agencies. Native American — relating to a people indigenous to the United States. Native Hawaiian — a descendant of the people who lived and governed the Hawaiian area before 1778. Native Hawaiian organization — a group that serves Native Hawaiians, exists mainly to provide services to them, and has expertise in Native Hawaiian affairs. Office of Hawaiian Affairs — the office created by Hawaii’s constitution. Right of possession — ownership gained with the voluntary consent of whoever had the authority to give it; original lawful acquisitions are treated as giving that right unless doing so would be a Fifth Amendment taking as decided by the U.S. Court of Federal Claims under 28 U.S.C. 1491, in which case other property law applies; human remains and associated funerary objects obtained with full knowledge and consent of next of kin or the tribe/org’s governing body are also treated as giving right of possession. Secretary — the Secretary of the Interior. Tribal land — lands inside reservation boundaries, dependent Indian communities, and lands run for Native Hawaiians under the Hawaiian Homes Commission Act of 1920 and section 4 of Public Law 86–3.

Title 25, §3001

Indians — Source: USLM XML via OLRC

For purposes of this chapter, the term—

(1)“burial site” means any natural or prepared physical location, 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 reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization 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 reasonably 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 presently 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.11 So in original. The period probably should be a comma.

(B)“unassociated funerary objects” which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably 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 preponderance 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 specific burial site of an individual culturally affiliated with a particular Indian tribe,

(C)“sacred objects” which shall mean specific ceremonial objects which are needed by traditional 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 instrumentality of the United States. Such term does not include the Smithsonian Institution.

(5)“Federal lands” means any land other than tribal lands which are controlled or owned by the United States, including lands selected 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 nonprofit, 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 Hawaiian cultural issues, particularly burial issues.

(7)“Indian tribe” means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act [43 U.S.C. 1601 et seq.]), 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 government agency (including any institution 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 organization” 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

(12)“Office of Hawaiian Affairs” 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 alienation. The original acquisition of a Native American unassociated funerary object, sacred object or object 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 object is deemed to give right of possession of that object, unless the phrase so defined would, as applied in section 3005(c) of this title, result in a Fifth Amendment taking by the United States as determined by the United States Court of Federal Claims 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 acquisition of Native American human remains and associated funerary objects which were excavated, exhumed, 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; 22 So in original. Probably should be followed by “and”.

(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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 101–601, Nov. 16, 1990, 104 Stat. 3048, known as the Native American Graves Protection and Repatriation Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out below and Tables. The Alaska Native Claims Settlement Act of 1971, referred to in par. (5), probably means the Alaska Native Claims Settlement Act. See note below. The Alaska Native Claims Settlement Act, referred to in par. (7), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688, which is classified generally to chapter 33 (§ 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see

Short Title

note set out under section 1601 of Title 43 and Tables. The Hawaiian Homes Commission Act, 1920, referred to in par. (15)(C), is act July 9, 1921, ch. 42, 42 Stat. 108, which was classified generally to sections 691 to 718 of Title 48, Territories and Insular Possessions, and was omitted from the Code. section 4 of Public Law 86–3, referred to in par. (15)(C), is section 4 of Pub. L. 86–3, which is set out as a note preceding section 491 of Title 48.

Amendments

1992—Par. (13). Pub. L. 102–572 substituted “United States Court of Federal Claims” for “United States Claims Court”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1992 AmendmentAmendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure.

Short Title

Pub. L. 101–601, § 1, Nov. 16, 1990, 104 Stat. 3048, provided that: “This Act [enacting this chapter and section 1170 of Title 18, Crimes and Criminal Procedure] may be cited as the ‘Native American Graves Protection and Repatriation Act’.”

§3001 Definitions

Summary

Title 25, §3001

Notes & Related Subsidiaries

Editorial Notes

References in Text

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Amendments

Statutory Notes and Related Subsidiaries

Effective Date

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Citations & Metadata