Museums are currently facing a reckoning for past collecting practices, with many nations demanding repatriation of illegally or unethically obtained items. It comes as no surprise that Indigenous Nations have been among those demanding the return of their cultural heritage and ancestors. Public scrutiny combined with new regulations in the coming weeks has resulted in greater interest in the Native American Graves Protection and Repatriation Act, also known as NAGPRA. The legal language and fraught subject matter of NAGPRA makes the act complex and difficult to understand; but, we’re here to give you a crash course in what the law is and why all museum professionals need to understand it.
NAGPRA is a federal law passed on November 16th, 1990 that can be understood as human rights legislation related to the Indian Religious Freedom Act of 1978. Until 1978, government policy prevented Indigenous people in the United States from exercising their first amendment right to freedom of religion. Anishinaabe historian and NAGPRA practitioner, Eric Hemingway, has stated that, “Many Native people across the country saw the need to have their ancestors returned as part of their ceremonies, part of their religion, part of their belief system […] and also to reclaim many of the sacred items that have been taken or alienated from their communities.”[1] Under NAGPRA Indian Tribes, Native Hawaiian Organizations, or lineal descendants of the ancestor “whose remains, funerary objects, or sacred objects” are in the custody of a museum can make a claim for repatriation.
In the simplest terms, NAGPRA requires museums and federal agencies to repatriate Native American human remains and belongings in their collections and to consult with Tribes when similar remains or belongings are discovered on federally owned land.[2] However, the law and its implementation are far more complex than this definition would suggest. NAGPRA covers five types of items in museum collections: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony.[3] I should note that the terms ‘belongings’ or ‘items’ are preferred terminology, but ‘objects’ is the legal terminology used in both the Native American Graves Protection and Repatriation Act and the accompanying regulations. When referring to legalities and official categories, I will use ‘object’ but will otherwise use the more respectful terminology.
The definitions and categories of items are crucial to the Native American Graves Protection and Repatriation Act. Native ancestors, officially termed human remains in NAGPRA, are defined as the “physical remains of the body of a person of Native American ancestry.”[4] The category of human remains does not include parts naturally shed or potentially ‘freely given’, such as human hair.[5] This means that collections like the hair samples held by Harvard University, are not technically subject to NAGPRA. However, like Harvard, institutions can choose to repatriate Native belongings even if they are not legally obligated to do so.
Funerary objects and the distinctions between associated and unassociated funerary objects are a little more complex. According to the NAGPRA regulations, funerary objects are “objects that were made exclusively for burial purposes or to contain human remains.”[6] This category might include belongings placed with an ancestor, such as beads or pottery, as well as burial containers like urns.
Associated funerary objects are “funerary objects for which the human remains with which they were placed intentionally are also in the possession or control of a museum or Federal agency.”[7] Unassociated funerary objects are “funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency.”[8] Essentially, Native belongings are associated funerary objects when a museum holds the objects and the remains with which they were found. Native belongings are unassociated funerary objects when a museum holds the objects and does NOT have the remains with which they were found. During the nineteenth and twentieth centuries, ancestors were frequently separated from their belongings under a variety of circumstances. Grave robbers known as “pothunters” often only sought items highly desirable to white collectors, such as pottery and jewelry.[9] Other grave robbers stole the remains of ancestors to build osteological collections to support inaccurate race sciences, like phrenology.[10] In other cases, archaeologists would divide the items from an archaeological site among several museums, separating ancestors from their burial items. As a result, museums may have belongings from a burial in their collection while the ancestor remained interred, or an ancestor might be in their care, while belongings from the burial are in the care of another museum. A common misconception is that the remains and funerary objects must be held by the same museum in order for those funerary objects to be considered associated. However, the remains associated with the objects can be held by any museum or institution. In some of the most unfortunate cases there are simply no records to determine whether an item is an associated funerary object, and is deemed unassociated.
The third category, sacred objects, are belongings needed for the practice of Native American religions with present-day adherents.[11] In other words, the religion must be currently practiced by Native American people. This can present a significant hurdle to tribes working to revive religious practices lost over centuries of oppression. Finally, objects of cultural patrimony are defined as items that are central to an Indian Tribe or Native Hawaiian Organization’s culture, traditions, or history to the point of being collective cultural property. This means that they cannot be owned or sold by an individual.[12] One of the best-known examples of cultural patrimony are the Wampum Belts belonging to the Haudenosaunee Confederacy. Several of these belts were repatriated in 1989 under the National Museum of the American Indian Act (NMAIA), a law similar to NAGPRA which governs the Smithsonian Institution.[13]
But who must comply with NAGPRA? In short, museums and federal agencies. But it’s how NAGPRA defines museums that’s tricky. 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.”[14] What this has meant in practice is that only museums & institutions which have accepted federal, or state funding must comply. For example, a small museum that has relied solely on its endowment and donations is not required under the current statute to comply with NAGPRA.
In the more than thirty years since NAGPRA became law, progress has been incremental and many museums remain non-compliant. As of April 2023, 104,539 Native Ancestors have yet to be made available for repatriation.[15] However, this statistic only includes museums which have publicly reported their holdings in compliance with the law. Countless small museums across the country may not even be aware they are non-compliant. Though the task may seem daunting, it is one that museum professionals must undertake. We must step forward into a new era of collaboration with Native Nations and communities. It is an ethical imperative that we work to make museums safe and welcoming spaces which accurately and thoughtfully represent the cultures with whose belongings we have been entrusted. If you would like to learn more about NAGPRA, or are a museum professional working on compliance, we encourage you to explore the following resources:
The ProPublic Repatriation Project
The ProPublica Repatriation Project Database
The NAGPRA Community of Practice
The National Park Service
The National NAGPRA Program Training Resources
Notes
[1] NAGPRA 101, 2023. https://www.youtube.com/watch?v=pRteJ8IJiVY.
[2] Sangita Chari and Jaime M.N. Lavallee, “Introduction,” 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), 8.
[3] NAGPRA, 25 USC § 3001(3), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[4] NAGPRA, 25 USC § 3001(3), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[5] NAGPRA, 25 USC § 3001(3), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[6] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[7] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[8] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[9] 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.
[10] Devon A. Mihesuah, “American Indians, Anthropologists, Pothunters, and Repatriation: Ethical, Religious, and Political Differences.”
[11] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[12] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[13] National Museum of the American Indian. “Repatriation.” Accessed October 2, 2023. https://americanindian.si.edu/explore/repatriation.; Fenton, William N. “Return of Eleven Wampum Belts to the Six Nations Iroquois Confederacy on Grand River, Canada.” Ethnohistory 36, no. 4 (1989): 392–410. https://doi.org/10.2307/482654.
[14] 43 CFR § 10.2 (d)(2), https://www.nps.gov/subjects/nagpra/upload/Existing-Regulation.pdf.
[15] Suozzo, Ash Ngu, Andrea. “Does Your Local Museum or University Still Have Native American Remains?” ProPublica, January 11, 2023. https://projects.propublica.org/repatriation-nagpra-database/.
Article by: Madeline Smith
MA Candidate, History and Museum Studies
Tufts University ’24
