NAGPRA: From Compromise to Collapse: Federal legislation that was crafted as a compromise between researchers and Native American tribes is being misread and creating conflict.

• Author: Weiss, Elizabeth
• Position: Native American Graves Protection and Repatriation Act

Recently, several news stories have alleged that American universities are failing to comply with laws governing the repatriation of human remains, funerary items, and sacred objects to modern Native American tribes. The reports allege foot-dragging and even the hiding of collections.

A closer inspection finds that universities are, in fact, following the laws, but the journalists seem to misunderstand them. In this article, we give examples of such articles, describe how the Native American Graves Protection and Repatriation Act (NAGPRA) is misunderstood, and explain why a legislative compromise created to ensure continued research is failing.

NAGPRA

After several years of discussion, Congress passed and President George H.W. Bush signed NAGPRA in 1990. The law contains several definitions and provisions relating to ownership and possession of "human remains," "associated funerary objects," "unassociated funerary objects," "sacred objects," and "items of cultural patrimony." It gives certain rights to claim human remains to current Indian tribes and Native Hawaiian organizations that have been recognized by the U.S. government. These rights are dependent upon the remains having been found on Indian or federal lands after November 16, 1990. For remains found prior to that date, the right to claim the remains depends upon the claimants demonstrating cultural affiliation with the remains.

Where no claimant can demonstrate such affiliation, the remains are considered "culturally unidentifiable." The legislative history of NAGPRA strongly suggests that it was not intended to make culturally unidentifiable remains subject to repatriation. The complaints that led to NAGPRA concerned actions taken by the U.S. government, or its military, or by private persons, to seize the bodies of known individuals or individuals who clearly belonged to an identifiable tribe. There was extensive testimony and comment on that issue. Much less comment was devoted to remains originating prior to 1492 AD, but that comment recognized the historical and scientific value of studying those remains and stated that they should be "kept with care" in the institutions that possess them.

A very large portion of remains held within institutions (mainly museums and universities) are culturally unidentifiable, meaning that they cannot plausibly, by the preponderance of the evidence standard established in NAGPRA, be associated with any federally recognized tribe, or indeed with any existing group. Even remains dating to as early as 1000-1500 AD are often culturally unidentifiable because of migration, population loss, and splitting and fusion of ethnic groups before European contact and the effects of war, disease, trade, displacement, and acculturation as a result of Euro-American contact. The Department of the Interior subsequently issued regulations that purported to establish repatriation rights for culturally unidentifiable remains, but NAGPRA did not give the Interior Department the power to, in effect, amend the law to include those remains.

NORTH DAKOTA'S REPATRIATION DELAY

On September 15, 2022, the New York Times ran the article, "Congress Told Colleges to Return Native American Remains. What's Taking So Long?" Its writers, Mitch Smith and Julie Bosman, appear to misunderstand NAGPRA, believing it intends for the immediate repatriation and reburial of all Native American skeletal remains regardless of when they were found or what tribe they are connected to. NAGPRA was passed as a compromise to ensure that federally recognized Native American tribes would be able...