Native American Graves Protection and Repatriation Act

In 1990, Congress passed the Native American Graves Protection and Repatriation Act, also known as NAGPRA. NAGPRA provides a process for museums and Federal agencies to return certain Native American cultural items, such as human remains, funerary objects, sacred objects, and objects of cultural patrimony, to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations (http://www.cr.nps.gov/nagpra/). The purpose of the act was to create a systematic and consistent approach to culturally significant items that are found using federal funds. Congress decided that the government had a responsibility to give these artifacts to the Native American groups. It is interesting to note the events leading up to the passage of the act, and to look at the repercussions of it. There have been some consequences that Congress did not foresee, and perhaps the act should be amended to be more like what they had envisioned.

The context that led to the passage of NAGPRA was one in which Native American groups were getting more respect, and the government was coming to terms with the fact that it had been wrong on many aspects of Indian life and culture. Once the mistakes of the past were realized, the government rightly did not continue the same policies in the name of tradition. Instead, they decided to acknowledge the mistakes, and attempt to correct the situation. Part of this was trying to change the perception of Indian groups as “bloodthirsty savages.” Often, museums were an easy way to erase this misconception. By simply altering the way that Indian artifacts were displayed, and the descriptions given, the public could be given a more accurate interpretation.

The other way that the government was attempting to right previous wrongs was in the repatriation, or bringing home, of Indian items. When applied to the private sector and private property, this idea goes against many American values. The American public has a finders-keepers mentality, which has roots as far back as Manifest Destiny. As Americans moved to the West, they claimed anything and everything. The land was something to be used and consumed, and when Native American artifacts were found, the mindset was no different. Private individuals collected the items, and soon, museums would also begin acquiring the items in order to display them. As time passed, these items became more valuable, and there was a solid market for them. For instance, in the November 15, 1980 auction catalog for Sotheby Parke Bernet contained Indian pipes, ladles, clothing, beadwork, moccasins, and several other items. At this time, these items were seen more as collector’s items rather than cultural items. Part of the demand for these items was created by the mystique of the Indians, who were remembered for fighting in the Indians Wars, which ended in 1890.

The national government was partly responsible for downplaying the cultural significance of the items, as well. The national policy of Christianizing the Native American groups marginalized items that were held sacred by those groups. Religious activities, ceremonies, and dance were all banned. Another policy that made the Indian groups unable to keep human remains intact called for rigorous scientific study, particularly on Indian crania. The Army Medical Museum controlled the remains of thousands of Native Americans, which were being used for “scientific study” (Fine-Dare, 2002).
In this atmosphere, it is easy to see how Indian artifacts were seen as having little cultural value. However, Native Americans see it much differently. In “My Son, Stop Your Ears,” Chief Joseph (1879) displays the connection that the Native Americans had to the land.

I pressed my father’s hand and told him that I would protect his grave with my life. My father smiled and passed away to the spirit land. I buried him in that beautiful valley of winding waters. I love that land more than all the rest of the world. A man who would not love his father’s grave is worse than a wild animal.

This connection explains the contention between the Native Americans and those who wanted human remains and religious items for other purposes. During the 1970’s, Indian groups became more politically active, due to a cultural and population resurgence. Indian populations have steadily increased since 1900, and by 1980 there were over one million Native Americans. In addition, their organization improved greatly, so they were able to exert more political pressure on leaders in government.

Before NAGPRA, individual states all had laws against grave robbing and tampering with corpses. However, scientists were allowed to disinter Native American bodies and grave goods. Most state laws, in fact, did not address repatriation, but rather the preservation of archaeological resources. While the preservation of these resources is important for scientific purposes, the repatriation of these items to the Indian groups is also important, and deserves to be covered by law. While many of the state laws prevented the opening of known graves, unmarked burials or areas where the remains are completely decomposed often reside in legal gray areas. In addition, different states had different requirements. NAGPA was enacted in part to try to create a uniform standard and to address other issues.

In the decade before NAGPRA was passed, a trend was appearing in which both museums and other private individuals returned sacred items to Indian nations. In 1986, the National Congress of American Indians rejected the federal laws which designated Indian sites as “archaeological resources.” In 1989, six bills regarding repatriation were introduced in Congress, and later in the year, the National Museum of the American Indian Act (NMAIA) was passed, requiring the Smithsonian Institute to return human remains and funerary objects to Indian tribes. One million dollars was allocated to help in this process. This was a victory for Native American groups, representing the “humanization of the Native Peoples, and the legal recognition that [they] too have the human right of get buried and stay buried, to recover [their] people and property from those who wanted to own them” (Suzan Shown Harjo, 1995, as quoted by Fine-Dare, p. 117).

One year after the NMAIA was passed, NAGPRA was passed, giving a much more concrete set of legal guidelines for excavating and removing those types of remains, as long as they are found on federal land. Much of the West is federal land, so this act is fairly far reaching. Permission of the interested Native American groups is required if the remains are on Tribal land. If the remains are on federal land, the associated tribes must still be consulted. It also established criminal penalties for sale, purchase, or transport of human remains without the legal right of possession (Native American Graves Protection and Repatriation Act).

In addition, the law calls for organizations receiving federal funds to post an inventory of their Native American holdings in the Federal Register, in order to facilitate repatriation. There were to be lists of items that were unassociated with any group, and separate lists of items that were associated with particular groups. Tribes were to have, upon request, access to these records. A review committee was to be created by the Secretary of the Interior, which would consist of seven members, three of which had to be appointed based on nominations made by Indian tribes. Three more members had to be representatives of the scientific and the museum communities. The final member would be appointed with the consent of the other six members. This committee would be responsible for overseeing the inventory processes.

The effects of NAGPRA are far-reaching. Colleges and museums are among those organizations that have had to create inventories, and in order for new excavations to be undertaken, new lines of communication between scientific circles and Native American groups have had to be created. The fact that communication between the groups has increased is a testament to the growing legitimacy of the law, and the fact that institutions are complying with it also adds legitimacy to their archaeological endeavors and programs.

The costs associated with creating the inventories vary widely. Universities and museums have a very large task on their hands, and they can be fined for not providing the lists. The inventories were due five years after the passage of the act, but time extensions have been granted liberally.

Also of significant expense is the process of tracking the legitimate owners. According to http://www.usbr.gov/nagpra/, “between 1990 and 1995, the Bureau of Reclamation had 13 inadvertent discoveries that resulted in 12 planned excavations on Reclamation lands. These discoveries resulted in the recovery of human remains belonging to 23 individuals and 16 associated funerary objects. Three individuals and seven associated funerary objects have undergone disposition. Two other individuals have not been claimed by tribes. The remaining 17 individuals and nine associated funerary objects have multiple claimants and continued consultation is occurring with the affected tribes.” These consultations take up time and money that the Bureau could be using in other ways. That is one of the problems of NAGPRA: it costs groups that want to excavate new areas and are funded by federal money in order to comply, and by complying, they may have to give up the rights to anything that they have discovered.

NAGPRA is good in theory, in that it regulates the processes associated with Native American remains, but it provides disincentives for new discoveries. If a federally funded university wants to excavate human remains, it must spend the time and money to consult (or get consent if the remains are on Tribal lands) the associated Native American groups, and the rights of ownership of items found may not even belong to the group doing the excavation. If a direct individual descendant can be found, the items will be given to him or her, and if not, there is a hierarchy of Indian groups who may make a claim to the items. The group that made the discovery may be given time to make a scientific study on the object, if it is considered to be of vital importance to a study that would bring a large benefit to the United States (Native American Graves Protection and Repatriation Act). This set of circumstances undoubtedly lead to lessened incentives for new archaeological research. While it is hard to deny there is a value in maintaining ownership rights for cultural items, especially human remains, it is equally hard to deny that there is not a similar interest in the expansion of knowledge for the sake of knowledge. This increase of knowledge, however, conflicts with the maintenance of ownership rights to those materials.

NAGPRA should be reevaluated to see if a compromise could be worked out that would improve incentives for new archaeological finds. As it stands, it has a bold and noble purpose, but there is no reason to believe that these goals should have to exclude (or at least hamper) the idea of scientific progress. While there are sections that should be left completely intact, such as criminal penalties for those who buy or sell burial items that were procured illegally, other sections could be improved. A compromise could be reached between the Native American groups and those who want to make scientific progress.

While such a compromise might be difficult to craft, there are different avenues that could be explored. Indian groups have a history of being told one thing by legislators, only to have laws passed that did something different. Their trust for the legislative system is justifiably lacking, and they are not likely to want to give up any legal gains that they have made. However, a compromise that they might agree to would give a grace period for scientific study, as long as the time period was relatively short (one to two years, perhaps) and there was no avenue for time extensions, unless the interested parties allow for it.

Another alternative is to draft a compromise where the excavators are entitled to a percentage of what they find. Items that could be traced to one descendant would be exempt from this, but other items that couldn’t be linked to an individual would qualify. A committee with a similar makeup to that of the NAGPRA Review Committee could be formed, with the purpose of dividing up items. The excavators would be entitled to perhaps twenty percent of the find, and they would be granted limited property rights. They would have the right to own, study, and display the items, but not sell them. This would limit them to academic considerations, rather than financial ones, when the items were being divided.

Either of these alternatives provides more incentive for new research. There is at least some hope for a return on the investments made. It would also be wise to consider revising NAGPRA before it wears out its welcome. Other acts that grant broad rights in order to try to adjust for past wrongs often come under attack. This is the case for affirmative action policies, for example. While NAGPRA may never receive the same level of attention, if it seems that one side is the clear winner, the scientific circles and the Native American groups may become more polarized. If this were to happen, there would be a deleterious effect on communication between the groups, leading to the reduced efficiency of the act itself.
The main problem with NAGPRA is that it banks on the two groups working in cooperation with each other. However, its effects aid one group much more than the other, which is bound to create friction. In order to create stronger ties between the different interests, NAGPRA needs to be reevaluated and updated to promulgate a truly cooperative spirit.

Bibliography

Fine-Dare, Kathleen S. 2002. Grave Injustice. University of Nebraska Press.
Harjo, Suzan Shown. 1995. Mending the Circle: A Native American Repatriation Guide. Pp. 3-7. New York: American Indian Ritual Object Repatriation Foundation.
http://www.cr.nps.gov/nagpra/.
http://www.usbr.gov/nagpra/.
Joseph, Chief. 1991[1879]. My Son, Stop Your Ears. In Native American Testimony: A Chronicle of Indian-White Relations from Prophecy to Present. New York: Viking, p. 130.
Lathrop, Alan K. 1986. Another View of Wounded Knee. South Dakota History. Pp.249-68.
Native American Graves Protection and Repatriation Act, 1990.

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