Unit author: April K. Sievert, Anthropology, Indiana University
What is NAGPRA?
Description
The Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, is human rights legislation that created a process for returning Indigenous (Native American) human remains and objects to descendanttribes. This unit explains the provisions of the law along with discussion about changes to the legislation that added greater responsibility for museums and institutions and serve to streamline the process. Although many non-Indigenous people realize that Indigenous people in the U.S. were forcibly removed from aboriginal homelands, many have the mistaken view that these people no longer exist. The NAGPRA allows tribes no longer on their aboriginal homelands to regain their ancestral remains and cultural objects based on affiliation with those homelands. It is an attempt by the federal government toward restorative justice for the original inhabitants of the land now occupied by the United States of America. This unit introduces students to not only the legislation, but also problems and solutions for the way the law has been applied and how it has changed.
Learning Goals
- Define what NAGPRA is, what it does, what it represents
- Create a timeline of the NAGPRA law
- Identify the materials covered under NAGPRA
- Learn about changes over the past 30 years that have streamlined the process
History of NAGPRA
Activism leading up to NAGPRA included action by individuals from the American Indian Movement (AIM) and other organizations. Instrumental to the process was Maria Pearson, who worked in Iowa to bring differential treatment of Indigenous and Euro-American human remains out into the open. Listen to a radio program about Pearson’s legacy, and learn about how Iowa became the first state to create greater protections for Native American remains.
The law passed in 1990 as a result of work done among legal experts, officials from federally recognized tribes, and members of institutional and scholarly communities to reach consensus and craft wording. At the time of passage, the law required the repatriation of all culturally affiliated human remains and associated funerary objects to federally recognized tribes. The law affected federal agencies as well as institutions holding remains that receive federal funding. It established a review committee comprising members of tribal and scholarly communities, as well as the federal Office of the Native American Graves Protection and Repatriation Act. Institutions had to submit inventories of human remains and funerary objects and summaries of other objects (not accompanied by human remains, sacred objects, objects of cultural patrimony) to the national NAGPRA office by 1995. This published list would give tribes necessary information so that they could initiate claims under the law. Institutions also had to notify tribes of their inventories and summaries.
Even though the law was comprehensive, progress toward repatriation has been slow. This article by Angeleti (2022) summarizes the big questions about why repatriation has taken so long, and provides some examples of repatriations of remains and cultural objects. Thirty years after NAGPRA, over 100,000 individuals still remain in institutions. An article in ProPublica also asks the question, why? In their article about the failure of museums to follow through with repatriation, the authors take an investigative look at several reasons why the process lags. They identify differences in perspectives and worldviews, and ways the law was worded, that allowed some institutions to defer repatriation of Native American human remains for years. The authors also discuss specific institutions. Instructors and students can use materials and activities provided below to understand better the points made in the ProPublica article by Jafee, et al (2023).
Resources
Amati, Anne and Ellyn DeMuynk. 2021. Looking at the Numbers: Cultural Affiliation and NAGPRA. University of Denver Museum of Anthropology, Social Sciences blog. May 7, 2021. (Accessed 1/23/2023.)
Angeleti, Gabriella. 2022. Three Decades Three decades ago, US museums were told to report all Native remains in their collections—so why are they still there? The Art Newspaper. 11/8/2022. (Accessed 1/15/2023.)
NAGPRA Compliance: Association for American Indian Affairs. (Accessed 1/23/2023.)
Jaffee, Logan, Mary Hudetz, Ash Ngu, and Graham Brewer. 2023. The Repatriation Project: America’s Biggest Museums Fail to Return Native American Human Remains. ProPublica :Investigative Journalism in the Public Interest. January 11, 2023. (Accessed 1/25/2023.)
National NAGPRA. U.S. Department of the Interior. Determining Cultural Affiliation within NAGPRA. courtesy University of California at San Diego.
Nebbe, Charity .2013. Maria Pearson and Native American Repatriation. Iowa Public Radio.
Pokagon Band of Potawatomi. (Accessed 1/23/23.)
Reclaiming the Ancestors: Indigenous and Black Perspectives on Repatriation, Human Rights, and Justice, 8/31/2020. online panel discussion sponsored by Sapiens.org, the Indigenous Archaeology Collective, the Society for Black Archaeologists, the Robert S. Peabody Institute of Archaeology, the Cornell Institute of Archaeology and Material Studies, and the Wenner-Gren Foundation for Anthropological Research. (Accessed 1/12/2023.)
Activity and Assessment Ideas
Activities
Watch the Webinar, Reclaiming the Ancestors: Indigenous and Black Perspectives on Repatriation, Human Rights, and Justice.This program, co-sponsored by several organizations,provides extensive context for repatriation of ancestral remains and cultural objects. This discussion should reveal the importance of repatriation and what it represents in terms of restorative justice. This can be watched in the context of class, but can also be assigned to students as preparation. Students should be able to grasp broadly the importance of repatriation. Ask students to develop additional questions for discussion.
The best source for information and explanation of NAGPRA is the national website. NAGPRA is administered by the National Park Service, and is therefore under the U.S.. Department of Interior. Nearly all federal lands and the Bureau of Indian Affairs also falls under this department. NAGPRA has four primary functions: to find out the character and location of materials that may belong to Indigenous people, through creating inventories of human remains and burial objects and summaries of cultural materials, to create a process for returning materials to federally recognized tribes, to safeguard burials on federal and tribal land, and to prevent trafficking in Indigenous remains and cultural materials. It also created a National Review Committee, provisions to penalize organizations that don’t comply, and a way to obtain funding through NAGPRA grants. Consultation is critical to the process, and mandated by the law. It provides the exchange of information and collaborative planning between institutions and federally recognized tribes. Ask students to thoroughly explore the National NAGPRA website. Ask them to also explore the NAGPRA compliance website for the Association for American Indian Affairs which presents compliance from the tribal perspective. Place students into study groups to specialize in teaching parts of the law to the other students. For example, a group might focus on who must comply, another on what materials are covered.
Who must comply? Students can explore which institutions are subject to NAGPRA. the difference between human remains and funerary objects, sacred objects, and objects of cultural patrimony. What is the difference between an object and an object of cultural patrimony?
Students may be surprised to learn that the Smithsonian Institution is not subject to NAGPRA. They are covered under a different act, the National Museum of the American Indian Act (NMAI Act) passed in 1989, which established a new National Museum of the American Indian on the Capitol Mall in Washington, D.C. This act mandated disposition or repatriation of objects and set up a repatriation office at the National Museum of Natural History (NMNH). Get a sense of what this repatriation office does by studying their website. Ask students to explore, research, and discuss why there would be two different pieces of legislation that cover repatriation in the U.S., one for the Smithsonian, and one for everyone else.
For the first 20 years that NAGPRA was in effect, only remains and objects affiliated with known historic tribes were subject to return. Institutions tended to classify remains as culturally unidentifiable, meaning that there was no way to determine which modern tribes could be considered descendant. Unless remains were clearly associated with contexts from the last 500 years, most were considered culturally unidentifiable. As originally described in NAGPRA, determining cultural affiliation was considered the job of the institution, and it depended on gathering known evidence from geographical, kinship, archaeological, biological, historical, folklore, oral history, or linguistic sources. Students can access one resource provided by National NAGPRA here. What many institutional scholars did not understand, is that cultural affiliation did not require certainty, in the way that scientists might expect. Many archaeologists had classified remains as unidentifiable because they simply thought it unlikely to find clear unbroken descent. Tribal oral histories and documentation created by Euro-American researchers in the early 20th century that linked archaeological cultures with historically known tribes could too easily be dismissed as insufficient or wrong.
Affiliation depended on linking people living at ancient sites with modern federally recognized tribes based on a preponderance of evidence, including sharing aboriginal territory or a group identity, but most importantly, by reaching an agreement between the institution and a federally recognized tribe or tribes through consultation. A blog article by Anne Amati and Ellyn DeMuynk (2021) from the University of Denver gives some insight into changes brought by a change in the law in 2010, requiring repatriating culturally unidentifiable remains. Decisions about affiliation and shared identities are part of the documentation required in Notices of Inventory Completion, documents developed by institutions in consultation with tribes, submitted to National NAGPRA for publication in the Federal Register. Ask students to collect examples of Notices of Inventory Completion from the Federal Register deriving from universities, museums, and federal agencies. Ask students to study and compare the notices along with the character of archaeological remains, and the information on cultural affiliation described. Ask them to discuss this question: Do you think it possible for different institutions to reach different decisions regarding affiliation for collections deriving from the same site? What are the ramifications should this happen for other institutions? for tribes?
The most recent alterations to the law will remove the problematic classification of culturally unidentifiable in favor of the use of geographic or territorial knowledge. Many of the largest collections are in states where tribes suffered removal. For example, Ohio and Illinois have no federally recognized tribes headquartered within the state, yet each state still has thousands of remains, due in part to dense settlement in the past and large-scale disturbance from federal projects in the presence. NAGPRA compliance will require consulting with descendant tribes that may be hundreds of miles away from their original homelands. Canvass students’ knowledge of tribes located within the students’ home states. Ask them to research removed tribes and learn where these tribes are currently headquartered, how large they are, and who they would contact to initiate consultation. Questions for class discussion include: How might the phrase culturally unidentifiable problematic for tribes? How was it problematic for institutions having collections?
Institutions concern themselves with the letter of the law, i.e. compliance, first. However, learning the spirit of the law is also critical. A good example of a state whose institutions worked toward the spirit of the law is Colorado. A 2019 article from the Colorado Sun about curators, universities, and tribes that worked with together in Colorado explains how relationships were built.
The law itself only concerns certain institutions and collections having federal funding. What if other institutions also have remains? For example, a county history museum, a library, or even a private individual could easily find that they have remains or cultural objects that can rightfully be attributed to or affiliated with tribes. Can repatriation happen outside of NAGPRA? The answer is yes, but only if the individuals with remains know what to do. In some cases, a larger institution can assist a small museum or individual by putting them in touch with a tribe that could accept an object or remains based on aboriginal territory. This is why it is so important that members of university departments, museums, libraries, and archives know about NAGPRA and repatriation. They should also know state laws governing Indigenous remains and burials, as well as what constitutes an item of cultural patrimony and be able to react responsibly if and when materials that need to be returned to tribes turn up. In Indiana, for example, it would make sense to direct an individual who discovered remains among estate materials from Valparaiso, Indiana, to the Pokagon Band of Potawatomi, the nearest federally recognized tribe to the region, and a people vested in taking care of materials from their northern Indiana and Southern Michigan homelands.
Assessment
Hold a debate about hypothetical situation involving the disposition of the following object:
- The skull of a cougar held in the collections of a small private university in Kansas was alleged to have been taken from an unidentified mound in Missouri by pothunters in around 1915. Since the mound is unidentified, you can’t be certain that this mound contained and burials.
Discuss whether this object is subject to NAGPRA or not. Discuss what actions the director of the museum might take to ascertain what to do with this object. Should tribes be contacted, if so, which tribe or tribe would that be? Assess as a learning community the ramifications of actions that you might take.
Are tribal ancestral remains always human? What kinds of non-human or inanimate objects might be considered to be animate ancestors? Would NAGPRA cover this situation. If your institution, university or tribe has a NAGPRA coordinator, ask them to moderate your discussion. Have the class self-assess their discussion.