by Ben Hunter

In 1971, highway crews in southwest Iowa uncovered 28 human remains. The remains of the 26 white individuals were reburied; the remains of a Native American woman and her baby girl were boxed and sent to the State Archaeologist.  Maria Pearson, an outraged Yankton Sioux activist, visited the State house to see Iowa Governor Robert Ray.   Ray credits Pearson for drawing the government’s attention to the discriminatory treatment of Native American human remains in Iowa.  The ensuing debate over new burial legislation led to the passage of the Iowa Burials Protection Act of 1976. The Iowa legislation served as a model for graves protection reform.  Pearson and other graves protection activists went on to lobby for federal graves protection reform and eventually succeeded with the passage of the Native American Graves Protection and Repatriation Act (NAGPRA).

NAGPRA was signed into law in November of 1990. The statute requires that museums, federal agencies, and any institutions that receive federal money create an inventory of any human remains or funerary objects in its collection. The institution must consult with lineal descendants, Indian tribes, and Native Hawaiian organizations to determine if there is a known cultural affiliation of the remains or funerary objects. After the consultation, the institution makes a determination whether the remains are either culturally affiliated or culturally unidentifiable. If the museum determines that the remains or funerary objects are culturally affiliated to a tribe, then the remains must be offered to the tribe for repatriation.

The passage of NAGPRA was a huge success for the repatriation movement, but today, the effort to return human remains and cultural objects is at an impasse. To date, the remains of 38, 671 individuals have been offered for repatriation, while 124,377 individuals have been classified as culturally unidentifiable. Museums have been able to retain human remains in their collections by making the determination that the remains are culturally unidentifiable. The drafters of the statute could not have anticipated that such a large percentage of human remains, held in collections, would be classified as culturally unidentifiable and therefore, ineligible for repatriation.

NAGPRA authorized the Department of Interior to make regulations regarding how these culturally unidentifiable human remains should be handled. In May, the Interior published rule 43 CFR Part 10, which requires museums to comply with requests for human remains by tribes, if the remains were found on the requestors tribal lands or aboriginal occupancy. The new rule could substantially affect what happens to the 124,377 culturally unidentifiable individual human remains currently held in collections. Evidence of the rule’s potential effectiveness is the harsh criticism it has received from the institutions that will be affected.

In a letter to the Secretary of the Interior, prominent archaeologists and anthropologists complain that the new rule will cause “an incalculable loss to science” and that the rule is “contrary to both the letter and the spirit of the law [NAGPRA].” One of the leading authors suggested that Congress needs to look at the rule “to see if they think, as we do, that these regulations go far beyond what Congress intended and what Interior has a right to do as a regulatory agency.”

The response is plainly wrong with regards to both the “letter and spirit of the law”. NAGPRA is a human rights statute. The history of the legislation makes its purpose clear:

The purpose of H.R. 5237 is to protect Native American burial sites and the removal of human remains, funerary objects, sacred objects, and objects of cultural patrimony on Federal, Indian and Native Hawaiian lands. The Act also sets up a process by which Federal agencies and museums receiving federal funds will inventory holdings of such remains and objects and work with appropriate Indian tribes and Native Hawaiian organizations to reach agreement on repatriation or other disposition of these remains and objects.

The debate over the legislation reveals that Congress intended for the respect of Native American human rights to be the guiding principle governing disputes between museums and tribes.

As for the “letter of the law,” the statute does not enumerate any rights of museums to keep culturally unaffiliated remains. The statute empowers the Interior to regulate what will be done with the culturally unidentifiable remains. NAGPRA was created to return Native American human remains and cultural objects. The new rule facilitates that purpose by creating a way for tribes to take back culturally unidentifiable human remains found on their lands. Under the new rule, a museum can no longer retain culturally unidentifiable human remains simply because it cannot – or will not – determine which tribe is the rightful recipient.

Although the human rights aspect is paramount, the NAGPRA drafters were concerned with scientific discovery and historic preservation. However, the potential scientific loss caused by the new rule is ineligible. Sherry Hutt, program manager for the NAGPRA Program in the National Parks Service, addressed the scientific concern posed by the writers of the letter:

Note that this rule applies only to human remains already determined to be Native American, but for whom the body of knowledge is insufficient to determine, even to the level of a reasonable basis, the cultural affiliation of the individuals. For those individuals subject to retrieval methods that left them bereft of contextual information or material culture, you may question what value to important scientific study might they be? For those individuals having contextual information of benefit to science, these individuals are likely culturally affiliated and subject to repatriation, thus are not subject to this rule.

Repatriation and graves protection is a deeply important cultural issue to Native American Tribes. It also touches on important American values. We are shocked and outraged by the recent mishandling of veterans’ graves at Arlington National Cemetery.   The right to a decent burial which is undisturbed has long been recognized in American law. NAGPRA extended this protection to the indigenous people of this continent. Nearly 20 years after the successful passage of NAGPRA by Maria Pearson and grave protection activists, 43 CFR Part 10 may bring us closer to remedying the discriminatory treatment of Native American human remains. Unfortunately, in many cases the damage done is irreversible. Some tribes will not accept human remains once the bodies have been unearthed because there is no cultural mechanism for dealing with reburial. Still, for many, NAGPRA offers a path towards healing. Going forward, it is important that museums, archaeologists, and anthropologists support the process of reconciliation rather than stand in the way. ▢

Ben Hunter is a 2nd year law student at American University Washington College of Law. This summer, he is working with the Native American Graves Protection Act Program in the National Park Service.