Native American Graves Protection and Repatriation Act
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT. In 1989, the U.S. Congress passed the National Museum of the American Indian (NMAI) Act (Public Law 101-185), which preceded the Native American Graves Protection and Repatriation Act (NAGPRA) by one year. The NMAI Act created a new museum within the Smithsonian Institution devoted to American Indians that incorporated the collections of the Heye Foundation in New York City. One part of the NMAI Act provided for the repatriation to lineal descendants or culturally affiliated tribes of Native American human remains and funerary objects held at the Smithsonian. This repatriation was to be monitored by a five-person review committee, at least three of whom were recommended by Native American tribes.
The following year, 1990, Congress passed NAGPRA (Public Law 101-601); it was signed by President George Bush on 16 November 1990. The act gives Native Americans, including Native Hawaiians, ownership or control of Native American cultural objects and human remains found on federal and tribal lands. The act also mandates the repatriation to lineal descendants or culturally affiliated tribes of human remains, funerary objects, objects of cultural patrimony, and sacred objects that are held by any federal agency and any museum or institution that receives federal funds. Agencies, museums, and institutions receiving federal funds were given five years to inventory human remains and funerary objects associated with human remains in their collections—with the possibility of extending time deadlines—and notify relevant Native American groups. They were given three years to provide summary inventories to Native American groups of unassociated funerary objects, objects of cultural patrimony, and sacred objects.
NAGPRA mandates the creation of a seven-person review committee to monitor and administer the provisions of the act. The secretary of the interior appoints the committee from a roster of nominated individuals, three of whom must be nominees of Native American tribes; two must be "traditional Indian religious leaders."
NAGPRA provides for fines and prison terms of up to one year for a first offense by individuals who obtain or traffic in Native American human remains or objects. Civil penalties set by the secretary of the interior apply to agencies, museums, and institutions that violate NAGPRA. The Smithsonian Institution is specifically exempted from the act, as it operates under the guidelines of the NMAI Act, as amended in 1996, which defines objects of cultural patrimony and sacred objects as subject to repatriation.
As the two major repatriation laws were being developed, Native American groups and museums and other institutions had very different views as to the impact of the laws. Native Americans assumed repatriation of human remains and objects would be simple and straight forward, while many museum employees were fearful that their institutions would lose their Native American human remains and artifacts. As the laws were passed and implemented, however, both groups were incorrect. Repatriation has often proved to be a difficult, time-consuming, and frequently expensive undertaking for Native Americans, and museums have not been emptied.
Part of the problem with implementing repatriation legislation has been refining the definitions of the law. "Cultural affiliation" is difficult to define. "Affiliation" may be established by a variety of means, but experts and Native American groups do not always agree. For example, the controversy over the remains of Kennewick Man pitted traditionalists, who claimed the ancient skeleton was an ancestor of modern tribesmen, against archaeologists, who believed the person was part of an unrelated prehistoric community. Native American groups have sometimes competed for remains or objects, all claiming affiliation. (Multiple ancestry is possible because a historic Native American group could be culturally affiliated with a number of contemporary tribes.)
Federal law has jurisdiction only over federally recognized tribes, thus excluding many American Indian groups, such as state-recognized tribes, terminated tribes (no longer federally recognized), and groups actively seeking federal recognition. In addition, it will surely be impossible to establish reasonable cultural affiliation for many human remains; this leaves the question of what to do with "culturally unaffiliated remains" unanswered. The definitions of human remains, funerary objects (associated or unassociated), objects of cultural patrimony, and sacred objects contained in the law are not as unambiguous as one might think. For example, do human hairs and fingernail clippings constitute "human remains"? Likewise, Native American groups and those charged with implementing the law define a funerary object, sacred object, or an object of cultural patrimony in varying ways.
Significant repatriations representing thousands of human remains and cultural objects have occurred, many from the Smithsonian Institution. The Smithsonian's National Museum of Natural History has itself returned several thousand human remains, primarily to Alaska, with particularly large numbers going to Alaskan native communities on Kodiak Island and St. Lawrence Island. The Smithsonian has also returned human remains associated with major nineteenth-century massacres of Native Americans, such as the Sand Creek Massacre of Southern Cheyenne and other Indians and the Fort Robinson Massacre of Northern Cheyenne. Included in the human remains the Smithsonian has repatriated is the brain of Ishi, the well-known California Indian. Sitting Bull's braid, cut from him during his autopsy, is still at the Smithsonian, but has been offered for repatriation. Numerous cultural objects have also been repatriated by the Smithsonian, including Ghost Dance shirts and other objects obtained from those Lakota massacred at Wounded Knee Creek. Likewise, the Smithsonian's National Museum of the American Indian has returned numerous sacred objects and objects of cultural patrimony to their rightful owners.
Under the mandate of NAGPRA, as of 2002, large numbers of human remains had not been returned, and significant Native American objects of cultural patrimony and sacred objects remained in museums and other institutions. Successes have occurred, however: for example, the Zuni Pueblo has had many of its Ahayu:da (war gods) repatriated, and the Pawnee tribe of Oklahoma has had the remains of ancestors returned from the State of Nebraska as well as from the Smithsonian.
Mending the Circle: A Native American Repatriation Guide. New York: American Indian Ritual Object Repatriation Foundation, 1996.
Mihesuah, Devon A., ed. Repatriation Reader: Who Owns American Indian Remains? Lincoln: University of Nebraska Press, 2000.
Price, H. Marcus. Disputing the Dead: U.S. Law on Aboriginal Remains and Grave Goods. Columbia: University of Missouri Press, 1991.
Thornton, Russell. "Who Owns Our Past? The Repatriation of Native American Human Remains and Cultural Objects." In Studying Native America: Problems and Prospects. Edited by Russell Thornton. Madison: University of Wisconsin Press, 1997.
Trope, Jack F., and Walter R. Echo-Hawk. "The Native American Graves Protection and Repatriation Act: Background and Legislative History." Arizona State Law Journal 24 (1992): 35–77.