Marcella Hadden/Niibing Giizis Studio/Saginaw Chippewa Tribe of Michigan
The Saginaw Chippewa Indian Tribe Men’s Society walk to the Nibokaan Ancestral Cemetery in Mt. Pleasant, Michigan, on October 12, 2012.

The Spoils of Wars and Massacres: NAGPRA 25 Years Later

Dylan Brown

Ten-year-old Hector "Lalo" Franco would never forget his great-aunt's funeral.

The distress of his elders burying one of their own while strangers scoured the Tachi Yokuts’ ancestral land in California's Central Valley, grave-robbing in the name of science, progress or profit. "There was nothing to stop these people," Franco, now 61 and the tribe's historical preservation director, says.

In 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) changed that, but not before the remains of about 200,000 American Indians, Alaska Natives and Native Hawaiians were pilfered for federal and museum collections nationwide. Boxed up with those remains are more than a million funeral objects and countless other sacred objects.

NAGPRA established a process by which those remains would be returned, but 25 years later, righting the historic wrong remains a monumental undertaking.

The law established a system by which remains would be returned to descendants based on a "reasonable" conclusion derived from a "preponderance" of the evidence available. But the dark legacy of American archaeology and anthropology and historical mismanagement at museums left little or no documentation for three-quarters of all bones considered to be Native American. Without evidence, it was impossible to return 122,736 culturally unidentifiable individuals.  

In 2011, that all changed. A new NAGPRA regulation known as the 10.11 rule dramatically reduced the amount of evidence required to prove the tribal connection needed for repatriation.

And yet, repatriation remains slow because the rule has reignited the ideological debate between tribes and museums over who should control the past.

Locked in the power struggle, only a few thousand of the unknown dead have escaped that limbo.

Structural Racism

Populated with the spoils of wars and massacres, museums were "a mirror of society as a whole,” says Alex Barker, a museum director at the University of Missouri. “There was and is undeniable structural racism that has affected Native communities going back centuries," explains Barker, a member of the NAGPRA Review Committee, a federal advisory panel split between museum and tribal representation. “The law was something that was necessary and appropriate.”

The acceleration of dam building, mining and other developments from coast-to-coast in the 20th Century drove the American economy, but it also laid waste to Native American history.

The Antiquities Act in 1906 and later the Archaeological Resources Protection Act of 1979 put archaeologists and anthropologists to work preserving the legacy being lost, but mostly for scientific purposes. Ignoring tribes, government agencies offloaded "artifacts" by contracting academics to excavate ahead of infrastructure projects.

This process had little regard for record-keeping, leaving collections in disarray and often separated from documentation. A 2010 Government Accountability Office report described "poor curation practices by agencies and repositories, in general, along with poor historical records and documentation.”

The confusion left behind is "the largest NAGPRA issue facing federal agencies" today, according to the National NAGPRA Program, an independent division established within the National Park Service that administers the law.

Modern experts and tribes were left "a monumental task" tracking down Native American items in vast archaeological collections that only continue to grow.

Stalling to Steal

Scientific certainty isn't required to determine remains’ cultural affiliation, the requirement for repatriation. The law outlines a host of factors to consider, including geography, biology and archaeological records, but also tribal language, oral tradition and expert opinion.

Tribal leaders argue that museums perpetually set the bar too high for repatriation so they can continue to study bones. "There is a lot to be learned, I agree," Sonya Atalay, who is Anishinabe-Ojibwe, a member of the NAGPRA Review Committee and a University of Massachusetts-Amherst anthropology professor, says. "But at what cost?"

NAGPRA gives museums 90 days after a request to initiate consultation with the inquiring tribe, but establishes no timetable for repatriation other than a "reasonable" amount of time. National Association of Historic Preservation Officers President D. Bambi Kraus says museums throw out many excuses to drag out consultation for decades.

According to National NAGPRA data, federal agencies and museums have made no attempt at consultation has been made for 24,215 unidentified human remains and 12,888 culturally affiliated remains are not included in public notices, as required by the law.

Tribes argue documentation for many unidentifiable remains exists, but are still “unidentifiable” decades after they were labeled as such in past by museums facing fines if they did not submit detailed inventories of their collections to federal officials.

Kraus says she's disappointed "there isn't more of an outcry."

She dismisses the argument that tribes are “anti-science” because it ignores the fact that Native Americans needed a law to protect their dead in the first place, something the broader society takes for granted.

But a vocal section of the museum community argues that cultural affiliation is difficult to establish. Historic movements, forcible migrations and dislocation by disease and war mean the tribe in closest proximity to where remains are discovered isn't automatically the rightful owner. Differing accounts of history exist between the 560 federally recognized tribes.

“How do you weigh among those and say this one is more correct than that one in a respectful way?" says Barker.

In the absence of records, using genetic information and other analysis to pinpoint the exact origin of hundreds of individuals is expensive and time-consuming, according to museums. Even experts can take years picking out single individuals from the tangle of records with no guarantee of results. Many museums are struggling for funding while their collections keep growing.

The cost of identifying remains also slows down repatriation for some tribes. More pressing issues like unemployment or law enforcement leave them unable to spend the money needed to claim identified ancestors, creating a gulf between the roughly 26 percent of remains determined to belong to a particular tribe and the less than 10 percent now back in tribal hands.

For others, handling the dead after burial is taboo.

The pendulum

The question now is who should have final say when it comes to making repatriation decisions.

The passage of the 10.11 rule four years ago dramatically loosened requirements for cultural affiliation in an effort to accelerate the process. Museums are now required to consult with tribes that request the repatriation of culturally unidentifiable human remains. If no request is received, the repository itself must initiate consultation with tribes recognized by the federal government as aboriginal inhabitants. If they decline, another tribe or non-federally recognized group can request repatriation or the remains and items can simply be reburied according to State or other laws.

Some museums are taking 10.11 as a fresh opportunity to revisit their collections.

"Ninety percent of what we have is culturally unidentifiable, that really prompted the university to take a look at the way in which we're doing NAGPRA," says Megon Noble, who became the University of California-Davis first NAGPRA project manager in 2014.

She says the rule rightly transferred the decision-making authority. "Native American people should have the civil right to determine how their ancestors are treated or reburied if that's their choice.”

Many museum officials and the Society of American Archaeology, however, vehemently disagree. They argue that 10.11 gives too much power to the tribes, undermining the balance of power Congress intended between tribal interests and scientific inquiry.

Critics of 10.11 note the scientific exemptions in NAGPRA’s text for Native American objects "indispensable to the completion of a specific scientific study, the outcome of which is of major benefit to the United States."

"It's not a law designed to end scientific inquiry into human skeletal remains and it hasn't done that," says Jordan Jacobs, head of repatriation and cultural policy at the University of California-Berkeley's Phoebe A. Hearst Museum of Anthropology.

He says 10.11, however, discounts not only scientific value, but also tribal cultural and spiritual contexts for reburial by essentially opening up all remains to repatriation.

Healing the wound

While the first decade of NAGPRA was replete with horror stories about dusty, rat-infested collections, Jacobs says scientific attitudes toward repatriation have undergone a generational shift. "It's just part of the ethos now.”

Review Committee member Shannon Keller O'Loughlin praises the shift, but says plenty more ancestors are still in cluttered garages and dusty backrooms. "I would like to see the day when I can tell my children and our elders that those days are behind us," says O'Loughlin, a citizen of the Choctaw Nation of Oklahoma and an attorney with the Lewis Brisbois Indian Nations Law & Policy Practice Group. "I don't think we're there yet."

Boxes of bones untouched since their excavation are still turning up. National NAGPRA added 658 more individuals to 2013's total number of human remains last year.

According to National NAGPRA, "a substantial body of work remains for NAGPRA communities and practitioners," but progress has undoubtedly been made in 25 years as NAGPRA locked tribes and museums in a room and threw away the key.

Finding the rightful homes of the unknown dead are what's left to do. And completing it will require continued commitment, O’Loughlin says.

"It is a heavy burden on museums,” she says, “but are we prioritizing what's required under the law?"

Franco still bears the wound left by the crimes of the strangers he never forgot.

"NAGPRA has been one of the ways we've been able to heal this wound," Franco says. "It's still healing, it's still there and the pain is still there."

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