Loyola University Chicago School of Law, J.D. 2023
The Native American Graves Protection and Repatriation Act (NAGPRA) was passed on November 16, 1990, to protect the rights of indigenous descendants, Indian tribes, and Native Hawaiian organizations to indigenous human remains, funerary objects, sacred objects, and objects of cultural patrimony. Thirty-one years later, the federal government is finally taking steps to improve the outdated and flawed legislation. But is it really enough to fix the problem, or is it just a Band-Aid on a broken system?
The civil implications of NAGPRA
The civil portion of NAGPRA applies to any institution that receives federal funds, such as museums, universities, or federal agencies. It requires all affected organizations to inventory any Native American human remains and associated funerary objects under its control. They must then attempt to identify the cultural and geographic tribal association of the objects and remains in consultation with the tribes. A federal agency or museum must repatriate (return) human remains and associated funerary objects upon request of a descendant of the deceased person or upon request of a culturally affiliated Indian tribe or Native Hawaiian organization.
In the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony, museums and agencies must create a summary of the items that provides general information about what kinds of objects are being held, their cultural affiliation, and how and when they were obtained. NAGPRA also requires applicable organizations to have ongoing consultations with Native American leaders about the items included in the summaries. If a tribe or individual presents evidence that the federal agency or museum obtained the objects without the knowledge or consent of an individual who had a right to sell or transfer ownership of the object and can show the item was previously controlled by the tribe or tribal member, the museum must repatriate the item.
Implementation and enforcement challenges
While NAGPRA was intended to rectify decades of legal and moral wrongs suffered by indigenous people, it has been far from a success. While on its face, NAGPRA gives indigenous people a way to reclaim their ancestors and cultural items, it also gives museums and federal agencies an immense amount of power over the determination of cultural affiliation and providing notice to tribes. Under the statute, museums and federal agencies had until 2007 to complete their inventories and summaries. Yet, in 2020 the American Alliance of Museums reported that less than thirty percent of human remains in federal and museum collections had been successfully repatriated, even though two decades had passed since NAGPRA’s enaction.
So, what is taking so long? NAGPRA is implemented by the National Park Service (NPS), which handles compliance, complaints, and enforcement of the statute. In a 2020 interview, James Pepper Henry, Associate Director of the Smithsonian National Museum of the American Indian and member of the Kaw Nation of Oklahoma and the Muscogee Creek Nation, explained that the NPS themselves are out of compliance with the act; they are also in possession of NAGPRA covered items that have not been appropriately inventoried, summarized, or repatriated. In fact, the federal government is the largest possessor of Native cultural material. In Henry’s opinion, the fact that the NPS has suffered no consequences for its many years of non-compliance sends a signal to other agencies that NAGPRA is not being taken seriously. Critics also accuse the NPS of underfunding NAGPRA because a robust investigation team goes against the NPS’ own self-interest.
The future of NAGPRA
The Department of the Interior announced on July 15, 2021, that it would begin consultations with tribal and Native Hawaiian cultural leaders to review and implement updates to NAGPRA. These changes seek to eliminate unnecessary burdens to the repatriation process and allow Indigenous peoples better access to their ancestors and sacred items. A draft of the proposed changes is currently available on the NPS website. The deadline for Indian Tribes and Native Hawaiian community leaders to submit written comments closed on September 30, 2021.
On January 31, 2022, the NPS announced that it had hired a full-time civil penalties investigator whose sole purpose would be to manage oversight and museum compliance with NAGPRA. The investigator will explore complaints against museums, present findings to the Secretary of the Interior, serve as a witness in legal proceedings, and provide support to federal, state, and Tribal agencies on how to comply with NAGPRA.
While changes to the statute and the addition of a dedicated investigator may slightly progress the efficiency of repatriation, the fact that it has taken the government so long to make any improvements is unacceptable. Congress has a duty to step in and make sure NAGPRA is being property enforced and funded. Additionally, they should take its enforcement out of the clearly incompetent hands of the NPS and create an outside agency that has no conflicting interest with NAGPRA’s enforcement.
NAGPRA is at its core a crucial piece of human rights legislation that deserves to be funded and enforced to its full potential. The National Congress of American Indian is currently the lobbying group and voice of indigenous peoples in Washington. However, Native American’s represent less than two percent of the population within the United States, and their voices are often drowned out by louder voices and other “more important” priorities in Congress.
Indigenous human remains are not curiosities to be studied and displayed in museums, they have families who are alive today and want to bring them home. Indigenous people deserve to have control and ownership of what happens to their ancestors and their sacred cultural items. More importance and priority must be given to improving the effectiveness of NAGPRA.