Federal Laws and Acts Protecting Burial Sites
There are two important federal acts that have an influence on historic properties and Native American graves. These are the National Historic Preservation Act of 1966 (PDF), as amended 2000, and Native American Graves Protection and Repatriation Act of November 16, 1990 (PDF)
These acts can help determine whether a cemetery property can be shown to be part of a Native American grave site or if the integrity, significance, and history of an extant cemetery can qualify for the National Register of Historic Places through National Register Criteria.
Additionally, if federally assisted projects are likely to have an adverse effect on historical and archaeological resources of a burial ground or cemetery, appropriate federal review process must be initiated for compliance with sections of the National Historic Preservation Act of 1966.
Section 106 of the National Historic Preservation Act of 1966 states that any project to be funded with federal money must be reviewed to determine whether or not that project may produce an "adverse effect" on any cultural resource eligible for or listed on the National Register of Historic Places. Based on its assessment, PHMC issues recommendations as to how to proceed with a given project. (To understand "adverse effect," see: "Protecting Historic Properties: A Citizen's Guide to Section 106 Review" (PDF), prepared by the Advisory Council on Historic Preservation 2002, page 7.
The National Historic Preservation Act of 1966, as amended 2000 promotes a national policy to preserve historic properties, significant historic and prehistoric sites, buildings and objects that are either eligible or listed on the National Register of Historic Places. The Act gives some protection to cemeteries that are eligible for or listed on the National Register of Historic Places. This protection only applies when federal funds, permits, or licenses are involved. The National Historic Preservation Act requires federal agencies or their representatives to identify archaeological or historic properties that will affected by a federally funded, permitted or licensed project and to determine those properties eligibility for the National Register of Historic Places. If the properties are eligible, the federal agency must gauge the effect the project will have on the properties.
Role of State Historic Preservation Office
Section 101(b)(3) of the Act states that one of the responsibilities of the State Historic Preservation Officer (in Pennsylvania, the officer is the executive director of the PHMC) is to advise and assist the federal agencies in carrying out their historic preservation responsibilities. As historical and archaeological resources, eligible burial sites and cemeteries will receive identification and consideration throughout the planning and development of federal projects.
Native Indian Tribes and the Section 106 Review Process
Section 101 (d)(2) of the Act states that a tribe may assume all or any part of the functions of a State Historic Preservation Officer in accordance with subsections (b)(2) and (b)(3) of this section, with respect to tribal lands, as such responsibilities may be modified for tribal programs through regulations issued by the Secretary of the Interior. Please refer to the Act and the Advisory Council for Historic Preservation for more information on Indian Tribes and the Section 106 process.
Native American Graves Protection and Repatriation Act of November 16, 1990
The Native American Graves Protection and Repatriation Act (NAGPRA) is the primary federal legislation pertaining to graves and human remains in archaeological contexts. It requires that remains and artifacts be returned to identified descendents or groups if and when they are uncovered during activities such as archaeological excavations. NAGPRA establishes definitions of burial sites, cultural affiliation, cultural items, associated and unassociated funerary objects, sacred objects, cultural patrimony, Indian tribes, museums, Native Americans and Native Hawaiians, right of possession, and tribal land. NAGPRA gives guides and priorities concerning the ownership or control of Native American cultural items that are excavated or discovered on federal or tribal lands after the date of enactment of the act. Guides are given concerning the intentional excavation and removal of Native American human remains and objects on federal or tribal land, as well as for the inadvertent discovery of Native American remains and objects on federal or tribal lands. Process is established in assisting federal agencies and museums in the determination of the appropriate Native American group responsible for disposition of various human remains, funerary objects, sacred objects, and materials of cultural patrimony. NAGPRA required that all museums make an inventory of such items, stipulating that geographical and cultural affiliation be identified if possible, and that upon request from a tribe a museum or federal agency would provide documentation and repatriate materials if "appropriate."
Native American human remains, graves, and ritual objects located on federal and tribal land are encouraged to be protected in situ. In cases where in place preservation is not possible, or if archaeological excavation is necessary for planning or research, or if the remains are inadvertently discovered, then consultation is necessary prior to excavation under an Archaeological Resources Protection Act permit. If remains covered by the law are discovered, the project will be stopped for 30 days while the review and consultation process proceeds.
Additional Information
For additional information on cemetery, burial site, and sacred ground laws visit:
Executive Order 13007 - Indian Sacred Sites
In managing federal lands, each executive branch agency with statutory or administrative responsibility for the management of federal lands shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.