By Christopher Zheng.

Whether it is land stolen under coercive treaties or looted belongings displayed in museums, the United States’ relationship with Native American tribes has long been defined by bad faith. In July of last year, however, the Supreme Court took a step towards reckoning a long history of injustice by honoring a treaty with the Muscogee Nation, formally recognizing half of the land in Oklahoma as tribal land.[1] This, along with recent calls to reexamine mascots, flags, and statues depicting Indigenous peoples,[2] demonstrates a shift towards respecting the limited sovereignty of tribal governments and, by extension, their cultural footprint in modern America.

However, much work beyond awareness needs to be done. Many of the Native American belongings sitting inside museums and galleries today were improperly acquired. Much of this is due to the fact that, after the Civil War, the American government funded scientists and anthropologists to collect millions of Native religious and cultural items and ancestral remains, which were often taken from tribes by fraud, compulsion, or robbery.[3] Additionally, tribes have long found little legal protection for preserving their cultural land and practices. In 1988, for instance, the Supreme Court in Lyng v. Northwest Indian Cemetery Protection Association held that the American Indian Religious Freedom Act (“AIRFA”) could not prevent a logging company from building a road through an area used for native religious rites.[4] In response to Lyng and its profound implications on tribal sovereignty, Congress passed a bill two years later aimed at guaranteeing communication between the federal government and tribes for the protection and repatriation of Native cultural heritage belongings and ancestral remains.[5] This article seeks to explore how effective that law has been in achieving that goal.

The Native American Graves and Repatriation Act (NAGPRA)

Thirty one years ago, on November 16th, 1990, President George H.W. Bush signed the Native American Graves and Repatriation Act (“NAGPRA”) into law.[6] The act established procedures for the restitution of Native American remains and funerary belongings to their affiliated tribes or lineal descendants, as enforced by civil and criminal penalties.[7] Under NAGPRA, museums and federal agencies are required to inventory Native American remains and funerary objects, create summaries of cultural items, consult with lineal descendants or associated tribes, evaluate repatriation requests for cultural items, and provide public notice prior to repatriation or transfer of such ancestral remains and objects.[8] Additionally, the statute establishes a permit requirement for any person who wishes to excavate human remains, funerary or sacred objects, or objects of cultural patrimony from federal or tribal lands.[9] Such permits are conditioned upon approval by interested tribes and compliance with the Archeological Resources Protection Act (“APRA”).[10] In the event that an individual recovers cultural belongings or remains on federal land or tribal property, NAGPRA requires that the relevant federal agency official or Indian tribe official overseeing the area should be immediately notified.[11] Such officials should then quickly take steps to protect the objects, alert interested lineal descendants and tribes, and ensure that excavation is carried out properly.[12] Additionally, if the belongings or remains are found as part of a mining or construction project, all activity must cease and reasonable efforts must be made to secure the objects before the project may continue.[13] The rules for cultural objects found on private or state land depend on who has control of the items once they enter a private holding or collection. For the most part, private collections of Native American remains are untouched by NAGPRA.[14] However, the 10th Circuit has previously ruled that NAGPRA extends to the individual trade of Native American belongings.[15]

Perhaps the most important takeaway from NAGPRA is its vesting of custody, ownership, and control of Native belongings and remains in lineal descendants or, if such individuals cannot be ascertained, the tribes that originally occupied the land on which the objects were found.[16] Putting this provision into practice, however, has not been without difficulty. The most well-known controversy involved a 9,000-year-old skeleton discovered along the Columbia River in Kennewick, Washington in 1996.[17] Dubbed by Native Americans as “the Ancient One,” the remains were claimed by nearby Indian tribes who asserted lineal connections based on oral histories about their indigenous ancestors, and the Army Corp of Engineers agreed to repatriate the remains per NAGPRA.[18] However, a group of eight scientists, some of whom worked for the Smithsonian Museum, filed suit to block the transfer of the skeleton, asserting that §3001(9) of the statute required a relationship with presently existing tribes, peoples, or cultures and that the absence of evidence of a direct link between the modern tribes and the ancient remains made NAGPRA’s requirements irrelevant.[19] The 9th Circuit in 2004 agreed with the scientists, holding that “no reasonable person could conclude on this record that Kennewick Man is ‘Native American’ under NAGPRA.”[20] A decade after the decision, a DNA analysis performed on the skeletal remains found that the Kennewick Man was, in fact, closely linked with the contemporary Colville tribe, and the remains were turned over to a tribal coalition.[21] In 2017, the Colville reburied the Kennewick Man in a final secret resting place.[22] Cases such as this suggest that increased accessibility to technology in anthropological study may aid in the efficient repatriation of Indigenous remains and belongings, though this technique must be balanced against the significant problem that most tribes do not want their ancestors to undergo intrusive testing.

Challenges to NAGPRA Enforcement

While much progress has been made in the statute’s thirty-one-year-old history, many obstacles to the return of cultural belongings still abound, resulting in a glacial pace for the repatriation process. In fact, of the 185,475 sets of human remains inventoried within the most current NAGPRA report (the majority of such inventories being incomplete), it would take about 238 years to repatriate all listed remains at the current rate, not even accounting for any associated belongings.[23] This section will discuss four of the main challenges facing NAGPRA enforcement: communication difficulties, statutory ambiguity, the international loophole, and ethical concerns.

Communication Difficulties

One of the largest barriers to the efficacy of NAGPRA has been the difficulty of communication and lack of receptiveness to dialogue between the federal government and tribal governments. In last year’s NAGPRA report by the General Accountability Office (“GAO”), tribes complained that agencies often limited tribal input to general public meetings rather than one-on-one consultations and consulted tribes far too late in project development stages, limiting opportunities for tribes to influence project designs.[24] As a result of this disregard for tribal participation, sixty-two percent of surveyed tribes felt that federal agencies did not give sufficient consideration to tribal interests.[25] Furthermore, when tribes believed that federal officials did not adhere to consultation requirements, tribal government officials were left with few appeal options other than costly litigation.[26]

Fortunately, courts have increasingly sided with tribes in such disputes. For instance, the United States District Court for the District of Nevada held in 2006 that a Bureau of Land Management (“BLM”) determination that ancient skeletal remains found in a cave next to tribal land were not affiliated with any modern day Indigenous tribe was arbitrary and capricious.[27] In that case, the BLM did not permit tribes to present their own evidence for cultural affiliation, making the agency determination solely off its own experts. The court’s ruling thus ensures that BLM determinations on belonging affiliations and NAGPRA obligations must give due consideration to tribal scientific and cultural evidence.[28] While relying on the courts can bring about favorable resolutions in some cases, the burdens of expensive litigation make it an unfavorable method of protecting tribal interests under NAGPRA. Additionally, even with court orders protecting tribal interests, agencies report difficulty in contacting tribal governments when they do wish to solicit their input. Sixty-seven percent of relevant federal agencies surveyed reported difficulty maintaining channels of communication with tribal governments and officials due to high turnover in tribal leadership.[29] Thus, communication between tribes and federal agencies remains a two-way street that demands bilateral solutions.

Statutory Ambiguity

A second major challenge can be found in NAGPRA’s language, which can create difficulty in separating sacred and secular objects. The statute defines cultural items into the broad categories of human remains, associated funerary objects, unassociated funerary objects, sacred objects, and cultural patrimony.[30] When it comes to objects of uncertain religious or cultural connection such as projectile points, tools, or loose beads, there is uncertainty as to whether such objects fall under the purview of the elastic definitions of NAGPRA.[31] Tribes are often uncomfortable with presenting lists of sacred objects to federal authorities because such lists would violate religious rules against revealing secret information to outsiders.[32] As a result, the definitions presented can often be both too restrictive and too broad depending on how anthropologists, scientists, and officials decide to interpret them.

The International Loophole

A third challenge involves the international loophole. Currently, NAGPRA applies only domestically, and thus any belongings exported for sale in foreign countries carry with them no obligations for repatriation.[33] As a result, Native American tribes rely entirely on gestures of good faith by foreign governments for the safe return of their cultural patrimony.[34] One illustrative example from 2016 involved an Acoma Pueblo shield from New Mexico which was offered for sale at the EVE auction house in Paris.[35] An enrolled member of the Pueblo of Acoma was able to identify the shield in a photograph as the exact one used by her grandfather, who was the original caretaker of the ceremonial shield.[36] When Acoma Pueblo Governor Brian Vallo contacted the auction house to privately request the shield’s return, the auction house instead invited the Pueblo to bid on the shield themselves at the starting price of $40,000.[37] It was only after a civil complaint, FBI investigation, and agreement by the consignor of the shield that the belonging was returned to the leaders of the Acoma Pueblo.[38]

To help close the international loophole, a bill was introduced in the Senate in July 2019 called the Safeguard Tribal Objects of Patrimony (“STOP”) Act.[39] The bill prohibits the exportation of illegally-obtained Native American cultural belongings and arranges for their voluntary or involuntary return as enforced by criminal penalties. Despite its broad support by a coalition of tribal organizations, the statute is not without its detractors. Some antiques dealers groups such as the Authentic Tribal Art Dealers Association (“ATADA”) fear that the STOP Act overreaches as “the first time in the United States’ entire history that it has sought to restrict export of art or cultural heritage,” and that the STOP Act’s broad definitions would improperly block the legal Native items trade.[40] In December of 2020, the Senate quickly passed the legislation and passed it along to the House where it is currently held at the desk awaiting further debate.[41] While it is unclear if the ramifications of the STOP Act’s language would indeed hobble the legal indigenous belongings trade, it remains evident that the international loophole is a major vulnerability to Native American tribes’ ability to recover their cultural patrimony on their own terms.

Ethical Concerns

A fourth concern with the current status of NAGPRA is its failure to address certain key ethical issues. To begin, the language of federal legislation aimed at protecting Native American culture is phrased in terms of property rights. While this framing is seemingly innocuous or necessary, tribes have taken great issue with the perception of ancestral human remains and funerary objects being defined as “property.”[42] Indeed, where many tribes hold a spiritual reverence for the remains of their ancestors,[43] the classification of such remains as property seems to miss the heart of the issue – that these belongings are not property at all, but a fundamental, inalienable part of personal and tribal identity.

The cultural reverence for remains raises another ethical dilemma involving the identification process and scientific study. Many Native Americans find outsiders handling cultural belongings and human remains to be an odious and disturbing process.[44] As objects undergoing NAGPRA identification must be handled to some degree, disagreements between tribal officials and scientists over procedure can stall the repatriation process. Additionally, the current language of NAGPRA does not stop scientific tampering with remains since scientific testing, considered as desecration to many tribes, is still permitted prior to repatriation.[45] Where NAGPRA categorizes tribal remains as property and allows scientific study prior to transfer, an open question remains as to whether tribes should thus have a proprietary interest in any scientific or anthropological data collected from tribal remains and items.

Building a Better NAGPRA

As institutions begin to move towards greater identification of ancient belongings and improved social attitudes towards the repatriation of Native American belongings, NAGPRA will have greater opportunities to find its footing. However, such positive trends should not be indicators of satisfaction, but rather impetus for improvement. Several key reforms in NAGPRA enforcement can be found in the aforementioned GAO report on NAGPRA compliance. To improve communication between tribal governments and federal agencies, the 2020 report first recommended the development of a broad federal database for tribal points of contact with notification systems.[46] Additionally, as sixteen agencies currently do not require formal written communication of policies or decisions with tribal governments, NAGPRA should require federal officials to retain written records on how they conduct tribal government consultations and should send formal written communications to tribal governments explaining how they rendered decisions on cultural belonging affiliations.[47] Finally, the GAO report explained that agency capacity limitations could be addressed by providing more training for officials facilitated by tribal governments, such as the Army Corp of Engineers’ multi-day training hosted by a Tribal Historic Preservation Office to boost cultural competency.[48] By building stronger channels of communication and proactively involving tribes in all stages of the training and development process, federal agencies can help NAGPRA fulfill the mission it set out to achieve over thirty years ago, ensuring that Indigenous Nations can better protect their sacred patrimony and preserve their legacies.

The History Endures Today…

“In the 1900s, we uncovered the history of how much looting and vandalizing occurred. We’re still suffering the consequences of the first contact of non-natives to America, and the history endures today. This is only to mend the wounds they created here and do so with the best processes we can in putting remains back where they belong.”

Hopi Tribal Council Vice Chairman Clark Tenakhongva[49]

The repatriation of cultural belongings always raises a tension between the value of public education or display of sacred objects balanced against the importance of their rightful return. Aside from the moral obligation to help correct centuries of shameful wrongs perpetrated against Native Americans, there is the added bonus that creating working relationships with tribes opens the doors for museums to curate more authentic and creative exhibitions. For example, in the 1970s, the Denver Art Museum originally resisted a return request by the Pueblo of Zuni tribe for two wooden statues called War Gods.[50] The Zuni objected to the display of the revered objects in the museum because War Gods were living beings, and “part of living is naturally degrading…[if] put behind glass…they’d suffocate.”[51] After working with the Zuni, the Denver Art Museum forged a compromise and agreed to build a shrine in New Mexico for the War Gods, protected by steel barriers, barbed wire, and alarms, but featuring an open top allowing for full exposure to the elements.[52] With the arrival of NAGPRA in the 1990s, museums may have lost some power to control their cultural resources, but they also gained extensive knowledge about those belongings by working with descendant communities and local tribes and opened new possibilities for culturally-accurate display.[53] Though there is still much room for improvement, especially in the need to provide greater power to tribal governments, legislation like NAGPRA rightfully sets a goal of ensuring that, indigenous history can endure today in its most authentic form.


Further Reading:

Endnotes:

  1. See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
  2. See e.g. Craig LeMoult, Activists Demonstrate In Support Of Bills That Would Prohibit Native American Mascots, Change State Flag, WGBH News (July 16, 2020); David Detmold, Governor Baker Signs the Bill Establishing a Special Commission to Change the Mass Flag and Seal, ChangeTheMaFlag (Jan. 12, 2021).
  3. Naomi Riley, Native American Exhibitions, Wall Street J. (Mar. 10, 2017).
  4. See generally Lyng v. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
  5. Marilyn Phelan, A History and Analysis of Laws Protecting Native American Cultures, 45 Tulsa L. Rev. 45 (2013).
  6. 25 U.S.C. 32 §§ 3001–3013 (2012).
  7. See generally id.
  8. National Parks Service, Compliance, U.S. Dep’t of Interior (last updated Jan 21, 2021).
  9. Luis Acosta, Protection of Indigenous Heritage: Comparative Summary, Library of Congress (Mar. 2019).
  10. 16 U.S.C. §§ 470aa–470mm (2012).
  11. Acosta, supra note 9.
  12. Id.
  13. See id.
  14. See Rebecca Tsosie, Indigenous Rights and Archeology, in Native Americans and Archaeologists: Stepping Stones to Common Ground 71 (Nina Swidler, et al. eds., 1997).
  15. See United States v. Kramer, 168 F.3d 1196, 1201-02 (10th Cir. 1999).
  16. See Acosta, supra note 9.
  17. Douglas Preston, The Kennewick Man Finally Freed to Share His Secrets, Smithsonian Mag. (Sept. 2014).
  18. Kate Gibbon, A Primer: NAGPRA, ARPA, and the Antiquities Act, Cultural Prop. News (Dec. 19, 2018).
  19. See id.
  20. Bonnichsen v. United States, 367 F.3d 864, 867 (9th Cir. 2004).
  21. See Gibbon, supra note 18.
  22. Id.
  23. Kevin Simpson, To Right Historic Wrongs, Colorado Museums Embraced Spirit of a Law that Repatriated Native American Artifacts and Remains — Largely by Listening, Colorado Sun (Mar. 1, 2019).
  24. See Anna Maria Ortiz, Testimony before the Subcommittee for Indigenous Peoples of the United States, Committee on Natural Resources, House of Representatives, GAO-20-466T (Feb. 26, 2020).
  25. Id. at 9.
  26. See id at 10.
  27. See generally Fallon Paiute-Shoshone Tribe v. United States, 455 F.Supp.2d 1207 (D. Nev. 2006).
  28. See generally id.
  29. Ortiz, supra note 24, at 10.
  30. 25 U.S.C. 32 §§ 3001 (2012).
  31. Gibbon, supra note 18.
  32. Id.
  33. Kevin Simpson, More than a Century Ago, a European Visitor Took More than 600 Native American Remains and Artifacts from Colorado’s Mesa Verde, Colorado Sun (Oct. 10, 2019).
  34. See id.
  35. Ellie Duke, A Native American Shield Highlights a Legal Loophole About the Export of Cultural Artifacts, Hyperallergic (Nov. 25, 2019).
  36. U.S. Attorney’s Office for the District of New Mexico Announces Successful Recovery of Acoma Shield for People of Acoma Pueblo, U.S. Atty’s Office D. N.M. (Nov. 18, 2019).
  37. Rick Nathanson, Sacred Ceremonial Shield to be Returned to the Pueblo of Acoma, Albuquerque J. (Nov. 18, 2019).
  38. See U.S. Attorney’s Office for the District of New Mexico, supra note 36.
  39. Safeguard Tribal Objects of Patrimony Act of 2020, S.2165, 116th Cong. (2020).
  40. Greg Smith, Stopping The STOP Act: ATADA Says Tribal Artifact Export Restriction Bill Needs Major Revisions, A No-Go, Antiques & the Arts Weekly (Aug. 11, 2020).
  41. Safeguard Tribal Objects of Patrimony Act of 2020, S.2165, 116th Cong. (2020).
  42. See Tsosie, supra note 14, at 66.
  43. See Daniel K. Inouye, Repatriation: Forging New Relationships, 24 Ariz. St. L.J. 1 (1992).
  44. See Office of the President, Policies and Practices Regarding Treatment of Native American Remains and Artifacts, University of CA, 4 (Sept 27, 2018).
  45. See Tsosie, supra note 14, at 71.
  46. See Ortiz, supra note 24, at 11.
  47. Id.
  48. Id. at 12.
  49. Simpson, supra note 33.
  50. See id.
  51. Id.
  52. William L. Merrill, et al., The Return of Ahayu: da: Lessons for Repatriation from Zuni Pueblo and the Smithsonian Institution, 34 Current Anthropology 523 (Dec. 1993).
  53. See Simpson, supra note 33.

About the Author: Christopher Zheng is a rising third-year student at Harvard Law School and was a summer 2020 legal intern at the Center for Art Law. He graduated summa cum laude from Columbia University in 2019 with a B.A. in art history and political science. At Harvard, he serves as the co-president of the Recording Artists Project, the executive editor of online content for the Journal on Sports and Entertainment Law, and the vice president of fashion and fine arts programming for the Committee on Sports and Entertainment Law. You can reach him at czheng@jd22.law.harvard.edu.

Disclaimer: This article is for educational purposes only and do not constitute legal advice. Views expressed are those of the Author.