Ralph W. Johnson and Sharon I. Haensly, Fifth Amendment Takings Implications of the 1990 Native American Graves Protection and Repatriation Act, 24 Ariz. St. L.J. 151 (1992), https://digitalcommons.law.uw.edu/faculty-articles/457
Arizona State Law Journal
Native American Graves Protection and Repatriation Act
In November 1990, Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA"). NAGPRA provides for the protection and disposition of Native American cultural items discovered on federal or tribal lands after NAGPRA's effective date. NAGPRA also addresses disposition of those objects currently held or controlled by federal agencies and museums. NAGPRA represents Congress' attempt to resolve years of debate between tribes, archaeologists, and museums. Like any legislative pronouncement, however, Congress left key issues to agencies and courts to resolve. This article focuses upon one such area, namely, Fifth Amendment takings questions that may arise when tribes or individual Native Americans demand the return of cultural items from persons discovering them on lands owned in unrestricted fee simple on Indian reservations . The first section of the article describes the statutory scheme. The second section delineates the different classes of cultural items and legal principles pertaining to ownership. The third section explores issues related to Fifth Amendment takings. The article concludes with recommendations for both the Department of Interior to consider in forthcoming rulemaking and for Congress to consider in future legislative pronouncements affecting the return of Native American cultural items.