Can Mississippi state-owned property be used to rebury prehistoric Native American remains?
Plain-English summary
The Mississippi Department of Archives and History (MDAH) was contacted by the Muscogee Creek Nation about a desecrated prehistoric Native American burial. The tribe wanted to rebury the individual as close to the original site as possible and asked whether reburial could happen on state-owned land. MDAH was thinking longer-term too: it wanted to be able to set up reburial sites for tribal nations that no longer hold land in Mississippi.
The AG concluded MDAH can do this. Mississippi law gives the MDAH Board of Trustees broad authority under § 39-5-5 to acquire, preserve, restore, or operate any real or personal property that the Board deems significant for historical, architectural, archaeological, or cultural reasons. Reburying prehistoric Native American remains close to the original burial site fits squarely within those purposes. The Board has to make the underlying factual finding that the property is significant for one of those reasons, but once it does, it has the statutory authority to proceed.
Two important caveats. First, the AG explicitly noted it cannot interpret federal law, but flagged that the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001 to 3013, and its implementing regulations at 43 C.F.R. Part 10 govern Native American remains. Any reburial has to comply with NAGPRA's notification, consultation, and repatriation framework. Second, this opinion only addresses Mississippi law authority; it does not speak to federal funding, tribal consultation requirements under Section 106 of the National Historic Preservation Act, or other federal regimes that may apply.
Currency note
This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
MDAH was created with broad statutory purposes set out in Miss. Code Ann. § 39-5-1: care and custody of official archives, collecting historical materials, editing official records, diffusing knowledge of state history, and "the performance of such other acts and requirements as may be enjoined by law." That last clause leaves room for the agency to take on responsibilities tied to its core mission.
Section 39-5-5 lists the duties and powers of the MDAH Board of Trustees. Two are central to this opinion. Subsection (a) gives the Board authority to "determine the location of places of historical interest within the state." Subsection (d) gives the Board authority to "acquire, preserve, restore or operate any real or personal property deemed significant for historical, architectural, archaeological or cultural reasons, to expend funds for such purposes, to enter into contracts or agreements with any agency of the United States or any person, firm, corporation or association for such purposes and to do any and all things which may be necessary or desirable to carry out such purposes."
Reading these together, the AG concluded that the Board may identify a state-owned location near a desecrated site, find that the location is significant for historical, archaeological, or cultural reasons, and use it for reburial. The same authority extends to acquiring new property if no existing state-owned property meets the proximity and significance requirements.
The federal overlay is NAGPRA. Native American remains and associated funerary objects fall under NAGPRA's protection regime, which requires consultation with lineal descendants, Indian tribes, and Native Hawaiian organizations; specific procedures for inventory, notification, and repatriation; and adherence to 43 C.F.R. Part 10 on the federal regulatory side. Mississippi state law cannot override or substitute for these federal requirements, and the AG explicitly disclaimed authority to interpret federal law.
Common questions
Q: Does MDAH need legislative approval to set up a reburial site?
A: The AG opinion does not require it. The Board's existing authority under § 39-5-5 already supports the decision, provided the required findings are made. Of course, if MDAH needed to acquire new property and the cost exceeded available funds, normal legislative appropriations rules would apply.
Q: What does the Board of Trustees need to find?
A: Under § 39-5-5(d), the property must be "deemed significant for historical, architectural, archaeological or cultural reasons." For a Native American reburial site, the cultural-significance basis is the most direct fit. The Board should record its findings in the minutes.
Q: Can a tribe with no remaining land in Mississippi participate?
A: Yes, that is one of the scenarios MDAH was specifically planning for. The opinion contemplates reburial sites for tribal nations that no longer hold land in Mississippi.
Q: Is reburial mandatory if a tribe requests it?
A: The AG did not address that question directly. NAGPRA may impose specific obligations regarding repatriation and disposition. Whether reburial on state property is the right disposition for a particular set of remains is a federal-regulatory and consultative question, not a question of Mississippi state authority.
Q: What if the original site is on private land?
A: This opinion does not reach that scenario. State-owned property is the basis for the AG's analysis. Private-land reburials would require negotiation with the landowner and continue to be governed by NAGPRA where federal nexus exists, plus state cemetery and burial laws.
What this means for you
For MDAH staff: Before authorizing reburial on a state property, prepare a recommendation for the Board of Trustees that documents the historical, archaeological, or cultural significance of the location. Tie the proposed action to § 39-5-5 explicitly. Document the NAGPRA consultation record so federal compliance is clear on its face.
For tribal historic preservation officers: This opinion gives MDAH the state-law foundation it needs to work with you on reburial of remains. The actual coordination still has to follow NAGPRA. MDAH cannot move ahead without the federal consultation and notification process.
For Mississippi cultural resource managers: Section 39-5-5 is the operative authority. When advising MDAH or tribal partners on potential reburial sites, frame the analysis around the four statutory grounds: historical, architectural, archaeological, and cultural significance.
For state property managers: If MDAH identifies a state-owned property under your control as a candidate reburial site, expect to coordinate on access, signage, maintenance, and long-term protection. The AG's opinion does not require special title transfer; existing state ownership is enough.
Citations and references
Statutes:
- Miss. Code Ann. § 39-5-1 (purposes of the Mississippi Department of Archives and History)
- Miss. Code Ann. § 39-5-5 (powers and duties of the MDAH Board of Trustees)
Federal law (referenced for context, not interpreted):
- Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013
- 43 C.F.R. Part 10 (NAGPRA implementing regulations)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/08/K.Blount_July-31-2020-Reburial-of-Prehistoric-Native-American-Remains.pdf
Original opinion text
July 31, 2020
Katie Blount, Director
Mississippi Department of Archives and History
Post Office Box 571
Jackson, Mississippi 39205-0571
Re: Reburial of Prehistoric Native American Remains
Dear Ms. Blount:
The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.
Question Presented
May existing property owned by the Mississippi Department of Archives and History (MDAH) be used for the reburial of prehistoric Native American remains?
Background Facts
The Muscogee Creek Nation contacted MDAH regarding a prehistoric Native American burial desecration. The tribal nation wished to rebury the individual as close to the original site as possible, and inquired whether reburial may be made upon state-owned property. This is not the first request made to MDAH for the reburial of prehistoric Native American remains upon state-owned property. Moving forward, it is the intent of the MDAH to create reburial sites that are optional for those tribal nations which no longer own lands in Mississippi.
Brief Response
Though the Office of the Attorney General may not interpret nor opine upon federal law, please note, Native American remains and associated funerary objects are subject to the Native American Graves Protection and Repatriation Act, 25 U.S.C.A. Section 3001 - 3013 and those federal regulations which implement the Act, 43 C.F.R. 10.
No provision in Mississippi law prohibits the MDAH from using state-owned property or acquiring property for the purpose of reburying prehistoric Native American remains if the MDAH Board of Trustees has made the necessary factual findings in accordance with Section 39-5-5.
Applicable Law and Discussion
MDAH was created to fulfill the "objects and purposes" as set forth by Miss. Code Ann. Section 39-5-1, which states as follows:
The objects and purposes of the department are the care and custody of official archives, the collecting of materials bearing upon the history of the state and of the territory included therein, from the earliest times, the editing of official records and other historical material, the diffusion of knowledge in reference to the history and resources of this state, the preparation and publication of annual reports, the encouragement of historical work and research and the performance of such other acts and requirements as may be enjoined by law.
To accomplish its statutory objectives, the MDAH Board of Trustees are vested with broad authority pursuant to Section 39-5-5, which provides, in relevant part:
The duties and powers of the Board of Trustees of the Department of Archives and History shall include, in addition to other duties and powers granted or prescribed by law, the following:
(a) To determine the location of places of historical interest within the state;
(d) To acquire, preserve, restore or operate any real or personal property deemed significant for historical, architectural, archaeological or cultural reasons, to expend funds for such purposes, to enter into contracts or agreements with any agency of the United States or any person, firm, corporation or association for such purposes and to do any and all things which may be necessary or desirable to carry out such purposes;
The above quoted statute provides MDAH with the authority to determine a location close in proximity to the property at which prehistoric Native American remains were desecrated, and to utilize such property, upon a finding that the same is "significant for historical, architectural, archaeological or cultural reasons," to rebury those remains; subject, however, to the Native American Graves Protection and Repatriation Act, 25 U.S.C.A. Section 3001 - 3013 and the federal regulations which implement the Act, 43 C.F.R. 10.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General