Native American Graves Protection and Repatriation Act (NAGPRA)

THE BACKGROUND AND NEED FOR NAGPRA

THE PASSAGE AND IMPLEMENTATION OF NAGPRA

BIBLIOGRAPHY

In 1990, the U.S. Government began a historic repatriation process that would return to the native peoples of the United States the remains of some of their dead, as well as cultural property that was wrongfully taken in earlier times. This process is occurring under the Native American Graves Protection and Repatriation Act (NAGPRA), which was signed into law by President George H. W. Bush in 1990. NAGPRA is a human rights law enacted as part of Congress’s Indian trust responsibilities. It protects Native American graves, prohibits the sale of native dead or their body parts, and establishes procedures and legal standards for returning this material, along with other cultural items, to Native American communities and owners.

THE BACKGROUND AND NEED FOR NAGPRA

Native Americans have experienced a long history of grave robbing by non-Indians. While the graves and dead bodies of white Americans have always been strictly protected by law, Indian graves were actively dug up and the contents removed by soldiers, pot hunters, curiosity seekers, scientists, and museum collection crews. As early as 1620, Pilgrims were opening Indian graves, “looking for underground stashes of food” (Mann 2005, p. 51). Since then, historians have documented the widespread collection of Native American human remains social norms making it acceptable to dig Indian graves but a crime to dig the graves of other races.

The roots of this double standard stem largely from the notions of race and racial theories among American scientists in the mid-1800s. Their interest in racial biology prompted great interest in collecting Indian skulls for cranial research. The craniologists assumed that “each race possessed a uniquely shaped skull,” and they believed that “cranial measurements provided an index of brain size and hence intelligence” (Bieder 1990, pp. 5–6). To that end, Samuel G. Morton, the founder of physical anthropology in America, bought thousands of skulls. His pseudoscientific findings of nonwhite racial inferiority colored racial thinking for many years. Consequently, “civilization for Indians was virtually impossible” and they “faced inevitable extinction” (Bieder 1990, p. 11). These predictions gave rise to the “Vanishing Red Man” theory, which was widely embraced and used to justify government Indian policies.

The appropriation of human remains was also spurred by America’s newly founded museums, which competed to collect all aspects of the Native Americans’ “procurable culture” (Cole 1985, p. xi.), including the bodies of their dead. Franz Boas, a leading museum collector, noted that “stealing bones from a grave was ‘repugnant work’ but ‘someone has to do it.”’ (Cole 1985, p. 119). To enhance the collection of the Army Medical Museum, founded in 1862, the U.S. Surgeon General ordered army personnel to collect Indian skulls beginning in 1867. More than 4,000 heads were obtained under that order. This government policy no doubt contributed to the rampant and clandestine taking of Native American remains by museums and private individuals.

Between 1875 and 1925 a staggering quantity of material, both secular and sacred, left native hands for American museums. By the time this scramble for native cultural property ended, more indigenous material lay in museums than in tribal communities. Virtually every Native American tribe and community in the United States had been victimized by grave looting. Hundreds of thousands of dead relatives, sacred objects, and objects of cultural patrimony lay stored or on display in museums, tourist attractions, art houses, private collections, and universities.

THE PASSAGE AND IMPLEMENTATION OF NAGPRA

Nagpra established procedures and legal standards for museums and federal agencies to use in repatriating improperly acquired human remains, funerary objects, sacred objects, and objects of cultural patrimony to Native American claimants. These cultural items must be returned to lineal descendants or culturally affiliated Indian tribes or Native Hawaiian groups under prescribed evidentiary and procedural guidelines. In addition, NAGPRA prohibits trafficking in Native American body parts and the excavation of Indian graves found on federal or tribal land without tribal consent. If any remains are accidentally discovered on such lands, the affected tribes must be notified.

Repatriation under NAGPRA occurs on a case-by-case basis. The law will take years to fully implement due to the massive number of human remains, museums, and federal agencies involved. Meanwhile, agencies, museums, and the courts are promulgating, interpreting, clarifying, and applying the provisions of the law. By 2004 the remains of 30,261 Native Americans and 581,679 associated funerary objects had been repatriated to Native American claimants. In addition, 92,298 funerary objects unassociated with particular human remains, 1,222 sacred objects and about 800 objects of cultural patrimony had been repatriated. After a decade of implementation, there is a strong consensus that NAGPRA’s repatriation process, which is based upon consultation among all interested parties, has been beneficial. There is also general agreement that the process has not harmed legitimate scientific interests, but has instead led to a better understanding of Native American cultural history and closer collaboration between Indian tribes and museums.

Almost 120,000 dead have not been repatriated, however, because their cultural affiliation is unknown, including 16,000 skeletal remains stored in the Smithsonian Institution. It is expected that NAGPRA regulations will be issued to recommend the appropriate disposition of these unknown American Indian dead. Some scientists wish to permanently retain these remains due to their potential value as scientific specimens. Native Americans disagree, however. They assert that these dead are entitled to a decent burial, pointing to mainstream social values found in the laws of every state that ensure a burial for all persons, including paupers, unclaimed strangers, or persons who die without next of kin.

Implementation of the social changes mandated by NAGPRA has not always come quickly or easily. Some scientists have sought to limit NAGPRA in order to protect their research interests. They have argued, in cases such as the “Kennewick Man” litigation, that NAGPRA is not an “Indian law statute,” and that it must be narrowly construed and should not apply to early American remains. Historically, minority and ethnic groups have experienced different forms of discrimination. The historical mistreatment of Native American graves and dead relatives is one type of discrimination, and it has been repudiated by NAGPRA, which seeks to rectify centuries of disparate racial treatment.

BIBLIOGRAPHY

Bieder, Robert E. 1990. A Brief Historical Survey of the Expropriation of American Indian Remains. Boulder, CO: Native American Rights Fund.

Cole, Douglas. 1985. Captured Heritage: The Scramble for Northwest Coast Artifacts. Seattle: University of Washington Press.

Echo-Hawk, Roger C., and Walter R. Echo-Hawk. 1994.Battlefields and Burial Grounds: The Indian Struggle to Protect Ancestral Graves in the United States. Minneapolis, MN: Lerner Publications.

Gould, Stephen Jay. 1996. The Mismeasure of Man, rev. ed. New York: Norton.

Mann, Charles C. 2005. 1491: New Revelations of the Americas before Columbus. New York: Alfred A. Knopf.

Trope, Jack F., and Walter R. Echo-Hawk. 1992. “The Native American Graves Protection and Repatriation Act: Background and Legislative History.” Arizona State Law Journal 24(1): 35–77.

Walter R. Echo-Hawk