NAGPRA

It's the Law

To punish and protect

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“”Before they break ground, archaeologists should talk to local people and try to identify areas where their interests coincide. It's very hard for many of us, since it means giving up control and authority.

—Dr Vitelli, Chair ethics committee of the Society for American Archaeology

The NAGPRA (Native American Graves Protection and Repatriation Act), is a 1990 Federal law that attempts to protect Native American culture and identity by doing two primary things:

1. Providing that any Native American artifact or human remains currently in the possession of any government, or government funded museum or scientific institution be returned to the people, and
2. providing that any newly-discovered burial site, artifact, or human remains be returned to Native people if at all possible.

Where possible, serious attempts to return the artifacts to tribes that can claim true ancestry of the artifact are now mandatory.

Origins

Despite its somewhat cumbersome nature, NAGPRA addresses a very real problem. Historically, Native American graves and artifacts were fair game. The nineteenth century saw a massive rise in "collections," some well-intended, others less so and the line between scientific research and grave robbing was very thin indeed; U.S. federal agencies alone had 14,500 deceased Natives in their possession.

The cavalier attitude to Native remains often had a racist dimension. This was brought into sharp relief when the the Iowa Department of Transportation were building a new road in the town of Glenwood. A number of bodies were uncovered but, whereas the "white" skeletons were quickly reburied, the remains of a Native American mother and child were sent to a lab for study instead.

The disparity in this treatment struck Maria Pearson as so unfair that she lobbied the state governor until the Iowa Burials Protection Act of 1976 was in place. This was a direct precursor of NAGPRA and Ms Pearson is seen as the Rosa Parks of the Nagpra movement.

Pity the poor archaeologist

NAGPRA presents a number of challenges to archaeologists and curators.

1. Currently held artifacts
   1. Federal agencies and museums must identify cultural items in their collections that are subject to NAGPRA, and prepare inventories and summaries of the items.
   2. Federal agencies and museums must consult with lineal descendants, Indian tribes, and Native Hawaiian organizations regarding the identification and cultural affiliation of the cultural items listed in their NAGPRA inventories and summaries.
   3. Federal agencies and museums must send notices to lineal descendants, Indian tribes, and Native Hawaiian organizations describing cultural items and lineal descendancy or cultural affiliation, and stating that the cultural items may be repatriated. The law requires the Secretary of the Interior to publish these notices in the Federal Register.
2. Inadvertent discovery of artifacts
   1. On tribal lands the excavation or removal of the human remains and other cultural items may take place only with the consent of the appropriate Indian tribe or Native Hawaiian organization, and must follow the requirements of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.) and its implementation regulations.
   2. On federal lands excavation or removal of the human remains and other cultural items must take place following the requirements of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.) and its implementation regulations. This includes issuance of an excavation permit by the cognizant Federal agency where required by ARPA.
3. Intentional excavation - NAGPRA allows the intentional excavation of Native American human remains and other cultural items on tribal lands only with the consent of the appropriate Indian tribe or Native Hawaiian organization.

There have been occasions where principal artifacts for any range of studies have been repatriated before full studies were finished.^{[citation needed]} Of course, this is generally true with any other "recent" human remains, so it really isn't too much of an issue, as long as the scientists use their time carefully.

But the major source of friction between archaeologists and NAGPRA rests on the concept of what constitutes an artifact that rightfully belongs to a tribe, and what constitutes an artifact old enough to be "the property" (for want of a better word) of humanity at large. For example, the city at Chaco Canyon: these ancients may or may not have been ancestors of modern Pueblo and some modern Mexican tribes, but the ties are far enough back in time (and theoretical enough) that they cannot be considered direct ancestors. The Mound Builders of the Southwest also cannot be claimed by any one tribe.

Many disputes that resulted from the passage of NAGPRA have continued to simmer. Institutions that formerly argued that their "collections" contained so much wonderful information that reburial would be like book-burning suddenly decided that they had no idea what their collections contained, and therefore they could not meet NAGPRA's inventory requirements.

Several artifacts have been dated to 10,000 BCE, some even contentiously dated to nearly 20,000 BCE. These are stone age peoples, and while they obviously are ancestors to Native Americans, they are clearly not linked to any one tribe. The artifacts of these people are also more important to archaeology, because they hold clues about how humans at large lived thousands of years ago, and populated the world. Yet those artifacts often can be drawn directly into NAGPRA court battles.^{[citation needed]}

All of the above issues have come into play in the controversial case of Kennewick Man. Kennewick man is old enough that he is not directly related to any living tribe, yet by NAGPRA definition, he is "indigenous" if not tribal. Further, no less than four tribes have claimed their right to his remains.

Native reactions

The Native American tribes are usually split into two camps regarding the NAGPRA. The first camp wants the bones back right away or as soon as possible, before scientists can study them. Since they believe their tribes have been in North America since the beginning of time any study about which groups the skeletons are related to in order to piece together migratory patterns into the New World are irrelevant to them. The Lakota are an example of this.

“”Bronco Lebeau, a Lakota (Sioux) provides a narration which simply rejects the whole idea of migration to the United States, stressing the importance of traditional Native cosmologies which contend that Natives were always here and originated, in the case of the Lakota, from caves in the Black Hills. Claiming the right to discard the dominant scientific paradigm, Bronco vehemently holds throughout the film the position that all bones, whether association with historical tribes can be proven (a requirement of NAGPRA) or not, should be returned to Native people.

The other camp understands the need for these studies, and will allow analysis before re-burying the skeletons.

Other Issues

NAGPRA highlights a host of already-existing problems regarding the ways in which Native Americans are treated by the US government, as well as introducing several problems distinct to this act. By and large, despite the issues, it has been mostly successful at getting "dead bodies" out of museums and reburied. Having said that....

Federally recognized tribes

One of the problems for Native people trying to repatriate their cultural items, is that the laws are specifically limited to "federally recognized tribes". There are 566 "federally recognized tribes" in the US. Scholars suggest (based on both language and DNA evidence) that the number of actual tribes that were here prior to colonization, and which may or may not have descendants, could range from as few as 1,000 to as many as 10,000 distinct tribes. Today, there are hundreds of tribes that are not recognized, but which have living descendants. These tribes are legally excluded from the "that's my ancestor" game (among many other Federal benefits), even if the artifact had a big 'ol "Property of the Deleware Munsi tribe" label stuck to it. The fight over having to petition the government for recognition of status is a long, hard legal battle.

Tribal fights

And, before we all get too carried away with venerating "the noble savage", repatriation can be contentious between the various tribes and families within tribes, especially where there is money or prestige involved. For example, the remains of Geronimo were to be returned to his family but there was disagreement between various factions of the Apache tribe as to exactly which family was entitled to them. Court fights over who has the right to possess the artifact have been costly and contentious.