Previously, we discussed what the Native American Graves Protection & Repatriation Act is and what it requires of museums and other institutions. NAGPRA is a federal law, so why do tens of thousands of ancestors and countless Native belongings remain unavailable for repatriation? Many institutions have massive numbers of Native Ancestors in their collections, not to mention funerary objects, sacred objects, and objects of cultural patrimony. In 1989, the Smithsonian Institution alone had 18,500 ancestors in its custody.[1] This has made repatriating ancestors a massive undertaking, requiring immense time, labor, and expertise. Beyond logistics, many academics argued that Native ancestors should be studied for the sake of science and education.[2] While this belief is not widely held today, the repercussions of this logic are still felt. Based on this argument, some institutions dragged their feet, resulting in today’s massive backlogs.

Many institutions are NAGPRA compliant or have made good-faith efforts to become compliant. However, some institutions had a vested interest in avoiding NAGPRA compliance. But how was and is that possible? There are two big elements of NAGPRA that have allowed non-compliant museums to fly under the radar: who NAGPRA applies to and how it is enforced. In my previous article, I discussed to whom NAGPRA applies: museums and government agencies. However, the way in which NAGPRA defines museums left a loophole. The statute states that “Museum means any institution or State or local government agency (including any institution of higher learning) that has possession of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds.”[3] What this has meant in practice is that only museums & institutions which have accepted federal, or state funding must comply. This resulted in some museums which had not already accepted federal funding not applying for funding in the future in order to avoid becoming subject to NAGPRA. These museums and institutions represent a significant gap in the data regarding ancestors and objects covered by NAGPRA held in museum collections. Databases like the one created by ProPublica depend on data published in inventories and summaries. Institutions that have not submitted inventories can often avoid public accountability.

The second element that has allowed some museums to avoid NAGPRA compliance is how the regulations are enforced. Enforcement and penalties for non-compliance are entirely dependent on individuals or groups officially reporting the failure of an institution to comply.[4] There are no regular or random inspections for NAGPRA compliance by the Department of the Interior. Furthermore, the civil penalties that museums face are minimal in practice. As of April 2022, only 20 institutions had been fined for non-compliance, with an average fine of only $2,955 per institution.[5] Essentially, the law has no teeth. 

Some museums have also acted in bad faith by complying with the letter of the law but not the true intent. One example of this is ‘culturally unidentifiable’ objects. In the past, museums claimed that they could not repatriate ancestors and funerary objects because they could not determine a cultural affiliation and designated ancestors as ‘culturally unidentifiable,’ or CUI.[6] Some museums set arbitrary dates to limit cultural affiliation. The Illinois State Museum set a guideline that “any individual buried prior to 1673, the date the first Europeans arrived in the State of Illinois, was not subject to NAGPRA.”[7] In 2010, the Department of the Interior enacted a new regulation that allows for culturally unidentifiable human remains and associated funerary objects to be repatriated. However, this rule does not cover unassociated funerary objects.[8]

But what is cultural affiliation and why is it so complicated? According to the NAGPRA regulations, “cultural affiliation means that there is a relationship of shared group identity that can be reasonably traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group.”[9] Essentially, culturally affiliating something is determining what specific Native American culture an item originated with and the modern Native nations who might have a claim. You do not have to prove cultural affiliation definitively. The standard is “a preponderance of evidence,” meaning that there is substantial evidence to support your conclusion. There are different types of evidence that can be used to support cultural affiliation, such geographic affiliation, kinship, biological, archeological, anthropological, linguistic, folklore, oral traditions, and historical evidence. In recent years, more weight has been given to traditional Native knowledge and beliefs and the proposed new regulations codify that.

So why are there so many CUI ancestors and objects in museums? How do you not know where an object or person came from? It’s a lot easier than you’d think. Native belongings have entered museum collections through a variety of colonial pathways, including “inequitable trade, ‘expeditions’, looting, and theft.[10] All of these pathways often work to obscure the provenance of items. The actions of anthropologists, museums, academic institutions, and the United States government all contributed to unethical collections lacking provenance. Shortly after the Civil War, the Surgeon General’s Order of 1868 was passed. Grave robbing of Native graves existed long before this, but this order enshrined such acts in federal policy, ordering soldiers and other army employees to unethically obtain remains for the Army Medical Museum.[11]Adding insult to injury, Native remains, particularly skulls, were used to support bunk race sciences like phrenology to justify settler colonialism and genocide.[12] Other justifications such salvage ethnography, and ‘preserving evidence extinct races’ abounded.[13] In 1906, the government even designated Native remains as “federal property” with the Antiquities Act.[14] Grave robbing combined with poorly documented archaeology resulted in large collections of human remains and objects with virtually no documentation.

To be very clear, not all museums, in fact, I would say most are not engaged in Machiavellian scheming to avoid NAGPRA compliance. Today’s museum professionals have often inherited collections management disasters decades in the making. I know of at least one museum professional who was told the museum was NAGPRA compliant. A sort of oral history surrounding NAGPRA compliance existed. However, further research revealed that no documentation or inventories existed in the museum’s records. Upon contacting National NAGPRA, they found that the museum had never submitted an inventory. Many museums don’t realize they are noncompliant or that they are subject to NAGPRA. Cultural affiliation is also challenging and nuanced work, requiring expertise, labor, and funding. Resistance to NAGPRA and cultural affiliation is fading, but the road to compliance remains rocky. For more information on the Native American Graves Protection & Repatriation Act, I highly recommend NAGPRA Comics. These comics tell true stories of repatriation under NAGPRA and are collaborative in community-based.

[1] Jack F. Trope, “The Case for NAGPRA,” in Accomplishing NAGPRA: Perspectives on the Intent, Impact, and Future of the Native American Graves Protection and Repatriation Act (Corvallis, OR: Oregon State University Press, 2013), 24.

[2] Devon A. Mihesuah, “American Indians, Anthropologists, Pothunters, and Repatriation: Ethical, Religious, and Political Differences,” in Repatriation Reader: Who Owns American Indian Remains, ed. Devon A. Mihesuah (Lincoln, NE: University of Nebraska Press, 2000), 123–68.

[3] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.

[4] “Civil Penalties – Native American Graves Protection and Repatriation Act,” National Park Service, October 14, 2020, https://www.nps.gov/subjects/nagpra/civil-penalties.htm.

[5] Mary Hudetz and Graham Lee Brewer, “Senate Committee Probes Top Universities, Museums Over Failures to Repatriate Human Remains,” ProPublica, April 21, 2023, https://www.propublica.org/article/senate-probes-universities-museums-nagpra-failures.

[6] Logan Jaffe Brewer et al., “America’s Biggest Museums Fail to Return Native American Human Remains,” ProPublica, January 11, 2023, https://www.propublica.org/article/repatriation-nagpra-museums-human-remains.

[7] Laurie W. Rush, “It’s Personal: My Lifetime Lessons Protecting Ancestors,” Indian Affairs Journal 192, no. Spring/Summer (2023): 6–8.

[8]

[9] 43 CFR 10.2 (d)(4), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.

[10] Brandie Macdonald, “Pausing, Reflection, and Action: Decolonizing Museum Practices,” Journal of Museum Education 47, no. 1 (January 2, 2022): 8–17, https://doi.org/10.1080/10598650.2021.1986668.

[11] Jack F. Trope and Walter R. Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader: Who Owns American Indian Remains, ed. Devon A. Mihesuah (Lincoln, NE: University of Nebraska Press, 2000), 126;  Jack F. Trope, “The Case for NAGPRA,” in Accomplishing NAGPRA: Perspectives on the Intent, Impact, and Future of the Native American Graves Protection and Repatriation Act (Corvallis, OR: Oregon State University Press, 2013), 22.

[12] Logan Jaffe Brewer et al., “America’s Biggest Museums Fail to Return Native American Human Remains,” ProPublica, January 11, 2023, https://www.propublica.org/article/repatriation-nagpra-museums-human-remains; Jack F. Trope and Walter R. Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader: Who Owns American Indian Remains, ed. Devon A. Mihesuah (Lincoln, NE: University of Nebraska Press, 2000), 126.

[13] Logan Jaffe Brewer et al., “America’s Biggest Museums Fail to Return Native American Human Remains,” ProPublica, January 11, 2023, https://www.propublica.org/article/repatriation-nagpra-museums-human-remains.

[14]  Jack F. Trope and Walter R. Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader: Who Owns American Indian Remains, ed. Devon A. Mihesuah (Lincoln, NE: University of Nebraska Press, 2000), 127;  Jack F. Trope, “The Case for NAGPRA,” in Accomplishing NAGPRA: Perspectives on the Intent, Impact, and Future of the Native American Graves Protection and Repatriation Act (Corvallis, OR: Oregon State University Press, 2013), 22.