The Repatriation Of Native American Artifacts And Human Remains

November 23, 2021

By Aara Ramesh

Among the many challenges faced by Indigenous Peoples in North America today, one that has gained particular attention is that of unmarked graves (usually associated with former Indian boarding schools) and of artifacts taken from various Tribes in the early period of the European settlement of the continent.

It is estimated that currently, there are ​​116,857 remains of Indigenous Peoples kept in museums and institutions across the country (not including the Smithsonian Institute’s museums and research facilities). The issue of the return of these remains is one that is of high importance to Native American communities today.

In this piece, we take a look at the Native American Graves Protection And Repatriation Act (NAGPRA) of 1990, which was enacted to address this specific issue.

Under NAGPRA, museums and federal agencies were ordered to take detailed stock of their inventory of “human remains, funerary objects, sacred objects and cultural patrimony,” within five years of it being signed into law. It is important to note that there are specific definitions of these terms that may differ from their conventional cultural connotation.

The details required to be collected include where the remains and objects came from; their cultural affiliation, if known; and any specifics on how and when each item was acquired by the body. The cultural affiliation clause here refers to establishing a link to a federally recognized Tribe in the present.

Per a U.S. Senate report from 1990, the Act was not meant to undermine the “important function museums serve in society by preserving the past,” but rather was to “encourage a continuing dialogue between museums and Indian tribes and Native Hawaiian organizations,” in addition to promoting “greater understanding” between them. 

In addition, the Act also spells out some rules around gravesites and other cultural items embedded on federal and Tribal lands. Before any intentional excavation is carried out, the party behind it has to get a permit and consent from the relevant bodies, in which the reason for the excavation has to be well justified.

The Act also accounts for unintentional discoveries of such artifacts in the course of other activities, such as construction, mining, or logging. The person who makes the discovery is required to immediately halt their activity and notify the relevant authority, federal or Tribal, and wait up to 30 days for permission before they are allowed to restart. 

Part of the restitution covered by NAGPRA is that descendants of the deceased person whose remains are in question, as well as a “culturally affiliated” Native American organization or Tribe, can request the repatriation of the human remains and/or artifact in question. If such a request is made, the item must be returned within 90 days of it being registered.

Almost all trafficking of Native American human remains “for sale or profit,” no matter when the remains were acquired, is illegal under NAGPRA, except in certain cases where explicit permission has been granted by the relevant authority. Any entity found to be in violation of this could face criminal penalties (a fine and/or prison term), as well as civil suits from the Secretary of Interior and/or “an Indian tribe, Native Hawaiian organization or individual with protected rights under NAGPRA.”

Crucially, claims under NAGPRA cannot be made against individuals, and are applicable only to museums (which is, admittedly, a broad category) and federal agencies. There are also two significant exceptions to repatriation mandates. One is if more than one party makes a claim on the object/remains, and it cannot be determined which has the more legitimate claim. The second is if the item is “indispensable for [the] completion of a specific scientific study, the outcome which would be of major benefit to the United States.”

There is a Federal Advisory Review Committee that oversees the implementation and review of NAGPRA. The Secretary of the Interior appoints members to the committee from a number of different stakeholder fields.

The assessment of the efficacy of NAGPRA is debated. The National Parks Service (NPS) estimates that it has collected around $59,111 in civil penalties from violations of NAGPRA between 1990 and 2018. Over that same period, the NPS says, “20% of museums subject to NAGPRA have resolved all Native American human remains under their control.”

On the other hand, national NAGPRA program manager Melanie O’Brien estimates that 72% of institutions that possess Native American remains have not established the affiliation and/or completed the repatriation process. She also says there is ample information to determine where the ancestors originally came from for at least 90% of those remains, down to state, if not county or site. The cultural affiliations of an additional 5% of remains have been established, but cannot be claimed due to a small technical loophole involving publishing a completed inventory. O’Brien estimates that only 5% of that total number comes from “an ‘unknown’ geographic location.”

On their part, institutions say that the process of cultural affiliation is “difficult, time consuming and expensive,” especially for those that are “too old to be affiliated with a federally recognized, present-day tribe.”

Particular institutions that have been in the news for noncompliance recently are the University of California, Berkeley, and the Harvard Peabody Museum, which have the two largest collections of Native American human remains in the U.S.

Earlier this year, the Department of Interior, under the purview of its first-ever Native American secretary, said it is looking at revising NAGPRA for the first time since it was enacted, to make it more effective and to “standardize” some of the broad definitions currently in the Act.

It is important, Indigenous activists say, for the repatriation of remains and funerary objects to happen. It allows for the healing of centuries-old wounds. Often, Tribes have been reported to hold “poignant,” “emotional,” and “deeply spiritual” reburial ceremonies” for the remains, most of which are unidentifiable. This can be particularly true in the cases of students housed at the aforementioned boarding schools.

At the end of the day, as John Stomberg, director of the Hood Museum, put it: “The work is never done when it comes to NAGPRA.”