Excerpted From: Tracy Feldman, Native American Gravesites: Shielding Liminal Spaces Through Expansion of Historic Preservation Ordinances & Zoning Codes That Designate Cultural Resources Protection Overlay Districts & Readapt Cemetery Dedication Laws Within Their Provisions, 51 Real Estate Law Journal 203 (Spring, 2023) (155 Footnotes) (Full Document Requested)


TracyFeldmanGenerally gravesites and cemeteries are not considered to be places that would be listed under the National Register of Historic Places (“NRHP”) unless they meet certain criteria. Some of the Native American burial sites would fall under “Criteria D” which is defined as follows “Properties may be eligible for the National Register if they have yielded, or may be likely to yield, information important in prehistory or history.” This category is exempted from criteria consideration requirements. Burial sites may be part of a larger archaeological site or they may be identified individually. Though it is important to note that cemeteries may receive less status and be unaccounted for in comparison to other

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In 1990, the Native American proponents originally thought they won when Congress enacted the NAGPRA. However, the law was short sited in that it only afforded protections to remains that were on federal and tribal lands and mandated that institutions who received federal funds must repatriate the remains that were currently in their possession. The law failed to confront issues concerning inadvertent discovery of Native American bones on private lands, and those who were not in receipt of public funds or museums. Additionally, a plaintiff would only have standing to bring a suit if there was an actual violation as NAGPRA was penal and punitive in nature.

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Additionally, I propose the construction of a “funerary easement” whose main function is to provide rights to those who may want to pay respect to the dead. These easements can be included within the zoning provisions. The overlay designation of such a zone, could be akin to an aquifer designation of an overlay district, which may require additional requirements to protect pollution, or limit impervious surfaces that interfere with groundwater discharge. The additional requirements would be to allow for those related or descended from such remains regular visitation to honor the deceased. Though these visitation hours may be limited to certain windows. These districts could be floating districts that are flexible and adapt to new land uses in a controlled manner. The floating districts would be predicated upon the potential discovery and likelihood of encountering a multitude of unmarked burial graves within its boundaries.

Tracy Feldman is a native of Great Neck, New York and graduated from Hofstra University where she earned a liberal arts degree.