A presentation on the felony criminal provisions of NAGPRA (The Native American Graves Protection and Repatriation Act) that I created my final year of law school. Enjoy!

1. 18 U.S.C. § 1170: Illegal trafficking
in Native American human remains
and cultural items
Bodhicaryavatara
Federal Criminal Law
Fall 2016

2. 18 U.S.C. § 1170(a)
• (a) Whoever knowingly sells, purchases, uses
for profit, or transports for sale or profit, the
human remains of a Native American without
the right of possession to those remains as
provided in the Native American Graves
Protection and Repatriation Act shall be fined
in accordance with this title, or imprisoned
not more than 5 years, or both.

3. 18 U.S.C. § 1170(b)
• (b) Whoever knowingly sells, purchases, uses
for profit, or transports for sale or profit any
Native American cultural items obtained in
violation of the Native American Grave
Protection and Repatriation Act shall be fined
in accordance with this title, imprisoned not
more than one year, or both, and in the case
of a second or subsequent violation, be fined
in accordance with this title, imprisoned not
more than 5 years, or both.

4. NAGPRA Overview
• The Native American Graves Protection and
Repatriation Act (NAGPRA) was enacted on
November 16, 1990 to address the rights of lineal
descendants, Indian tribes, and Native Hawaiian
organizations to Native American cultural items,
including human remains, funerary objects,
sacred objects, and objects of cultural patrimony.
• 18 U.S.C. § 1170 is section 4 of NAGPRA, which
amends the United States Criminal Code to create
a new felony offense.

5. Legislative History
• The Antiquities Act of
1906 was the first piece
of legislation aimed at
curbing the trade in
Native American Human
Remains. Owing to its
vagueness in this regard
however, the Ninth Circuit
invalidated the criminal
penalties of this statute in
those areas under its
jurisdiction.

6. Legislative History
• Another statute, known as
ARPA, was enacted in 1979,
aimed at safeguarding sites of
archeological importance.
• Those who illegally removed
material from locations
considered to be archeological
sites without a permit face a
felony conviction, up to five
years in prison, a $250,000,
and the seizure of vehicles and
tools used in the illegal activity.

7. Legislative History
• NAGPRA came into existence on account of
many Native Americans taking offense to
ARPA’s characterization of human remains as
an “archeological resource”.
• NAGPRA is designed to protect such remains
and other items by treating them as personal
and sacred to the communities from which
they originate.

8. Legislative History
“I believe this legislation effectively
balances the interest of Native
Americans in the rightful and
respectful return of their ancestors
with the interest of our Nation's
museums in maintaining our rich
cultural heritage, the heritage of all
American peoples. Above all, I
believe this legislation establishes a
process that provides the dignity and
respect that our Nation's first citizens
deserve.”
— Senator John McCain, one of the
law’s principal sponsors, noted
during Senate consideration of the
NAGPRA bill (10/26/1990)

9. Important Aspects of NAGPRA
• While ARPA did not apply to the removal of
materials from non-federal land, NAGPRA applies
to Native American human remains and cultural
materials on both private and federal land.
NAGPRA confers federal jurisdiction over these
items, wherever they are found.
• The “knowing” standard identified in the statute
sets forth a general intent crime meaning the
government must establish that defendant knew
he was participating in a financial activity but not
that the cultural item was protected.

10. Defenses
• The statute only applies to human remains and
artifacts removed from land following the date
the act took affect. All items removed prior to
that date are thus not subject to this statute.
• Defendant can assert that he was granted the
right of possession by the tribal authority.
• Defendants have unsuccessfully raised the
defense that the statute is unconstitutionally
void for vagueness.
• Failure to realize an intended profit is not a
defense.

11. Penalties
• Those who violate Section A of this act face
imprisonment of up to 5 years, and face a
monetary penalty.
• Those found to have violated Section B of the
statute face a monetary penalty and
imprisonment for up to 1 year as punishment
for a first offense. Penalties for a second
offense consist of a fine and imprisonment up
to five years.

12. U.S. v. Cook (2010, D. NV)
• Defendant removed and damaged 300 lb. petroglyph
from Spring Mountains National Recreational Area and
placed it in front yard
• Sheriff’s Department discovered petroglyph when they
went to Defendant’s home to execute a search warrant
• 2 members of the Southern Paiute tribe testified at
sentencing that the site from which the petroglyph was
removed is a sacred worship site and that the removal
of the rock constituted desecration of the site.
• Sentenced to 6 months in federal prison and 1 year of
supervised release

13. U.S. v. McNeil (2010, E.D. WA)
• Defendant took archaeological resources from
Lake Roosevelt National Recreation Area between
June 2004 and April 2005
• In May 2005, National Park Service executed a
search warrant at Defendant’s residence and
recovered numerous protected archaeological
objects such as projectile points, stone weights
and tools, etc.
• Defendant sentenced to 30 days home detention
and prohibited from entering the Lake Roosevelt
National Recreation Area for three years

14. U.S. v. Knowlton (2010, D. CO)
• Defendant pleaded guilty to knowingly
offering to sell an archaeological resource—
namely, an ancestral Pueblo cloud blower
pipe, which was removed from public lands
• Defendant knowingly transported item from
CO to UT
• At sentencing, Defendant was banned from
being on Bureau of Land Management land
for purpose of collecting

15. U.S. v. Larson (2010, E.D. WA)
• Defendant and her companion were
encountered at Spearfish Park looking for
arrowheads and artifacts
• Received sentence of 2 years probation,
ordered to pay $6,690.08 restitution , ordered
to perform 150 hours of community service
for the Yakama Nation, and banned from
going into Spearfish Park during probation