Nagpra representative work

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Issues in Repatriation: an examination of NAGPRA

Cultures native to an area and immigrant cultures have interacted, in various

degrees and impacts upon one another, since the era of divergent cultures. The

United States is a country that contemporarily withholds and defines the tangible

differences between these two alternate schools of thought. Inter-cultural impacts

and interactions often become necessary when viewed from the opinions and

actions of archaeologists, whom wish for the correct and scientific preservation of

archaeological sites and artifacts. Secondly lays the opinions of Native American and

Hawaiian Tribes, whom often wish for Archaeologists to make explicit their goals,

which often lie in opposition of Native American and Hawaiian Tribes. Scientific

preservation and curation of artifacts may be accepted by the scientific community

whereas the Native American and Hawaiian Tribal may perceive these actions as the

theft and mistreatment of items of cultural patrimony. This sentiment is as true in

the United States as it is elsewhere globally. More often than not, the line between

theft and preservation becomes distorted because of the different interested parties’

opinions and involvement with an archaeological site. The Native American Graves

Protection and Repatriation Act (known as NAGPRA) is a piece of legislation that

was passed by Congress in 1990 with the intention of requiring the repatriation of

items and artifacts of cultural significance, held or housed by agencies, museums,

and universities that receive federal funding, to their provable, contemporary lineal

or cultural descendants (Cortes-Rincon 2012). Upon the passing of NAGPRA, the

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new law mandated that all federally-funded agencies, museums, and institutes

which withhold or curate Native American ancestral remains and cultural items,

must repatriate such items to the respective tribes that can demonstrate cultural

and/or genetic affiliation with the aforementioned items (King 2008). One must

note that the NAGPRA only extends jurisdiction as far as the funding they provide

and does not address the repatriation of Native American and Hawaiian ancestral

remains and cultural items held in private collections. Under the guise of NAGPRA,

all federally-funded agencies, museums, and institutes must undergo the tedious

process of identification (or re-identification) of all artifacts of cultural significance,

as well as the process of repatriation of those artifacts to their respective original

owners (Cortes-Rincon 2012; King 2008). The necessity of an artifact inventory has

actually caused some museums to ‘discover’ collections that have long been lost or

forgotten in storage. In most cases, an, or the original owner refers to the lineal

descendants of Native Americans and Native Hawaiian cultures to which the

artifact(s) belonged (Toner 2010: 9-10). More than twenty years beyond the passing

of NAGPRA, efforts to identify and repatriate items of significant cultural heritage

are still ongoing and have been met with significant accomplishments and

challenges (Cortes-Rincon 2012). Such accomplishments and challenges allow for,

and require: the increased discussion of, the requisite debate of, and further

decision-making regarding the repatriation and/or curation of artifacts of Native

American and Hawaiian cultural significance (Cortes-Rincon 2012; King 2008).

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As stated by Toner, NAGPRA has engendered collaboration between

archaeologists and Native American and Native Hawaiian groups in order to return

cultural items to their original owners (Toner 2010: 9). Despite the underlying goal

of repatriation, NAGPRA has created as schism between the scientific and Native

American communities. This disagreement hinges on the difference between the

arguments and goals of the two alternate preservationist communities; the Native

American community goal of preservation often revolves around the preservation of

artifacts and sites through efforts of non-disturbance, while, until recently, the

scientific goal of preservation was through the collection and curation artifacts.

(King 2008). Whereas archaeologists wish to accomplish the scientific study and

documentation of the first peoples that inhabited the Americas, Native Americans

pursue the repatriation of Native American and Hawaiian human remains and

cultural artifacts (Toner 2010). The scientific-based argument is aptly expressed by

the president of the American Association of Physical Anthropologists, Dennis

O’Rourke (Toner 2010: 10-11). He is quoted by Toner as arguing that the,

“‘wholesale reburial of [Native American] indigenous history’, would have,

‘devastating consequences’” (Toner 2010: 11). O’Rourke may be referring to the loss

of scientific knowledge that may be attained through the study of collected artifacts.

Alternatively, Toner includes the opinions and sentiments of Brenda Shemayme

Edwards on NAGPRA; Edwards is the chairwoman of the Cado Nation of Oklahoma

(Toner 2010). Brenda Shemayme Edwards is quoted by Toner as saying that, “It is

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sad that our ancestors continue to be regarded as natural resources instead of

human beings” (Toner 2010: 11).

As defined by NAGPRA, cultural items may consist of objects of cultural

patrimony, sacred objects, funerary objects, and human remains (Dumont 2011).

NAGPRA dictated that the inventory of such items housed in federally-funded

institutions must be completed by 1995 (Cortes-Rincon 2012). Multiple factors

contributed to the missing of that timed goal, including the sheer number of artifacts

that require inventory and the reluctance of some institutions to repatriate objects

of cultural patrimony (Dumont 2011; Cortes-Rincon 2012). NAGPRA also dictates

that these cultural items may only be returned to the lineal or cultural descendants

of Native American and Hawaiian Tribes whom are federally recognized (Cortez-

Rincon 2012). This poses significant problems because, firstly, not all living Native

American and Hawaiian Tribes have federal recognition, and secondly, to prove

one’s lineal and/or cultural descent can be very difficult to determine (Toner 2010:

11-12). It is interesting to note that NAGPRA officials keep track of culturally

identifiable and unidentifiable artifacts that are inventoried and offered up for

repatriation while they do not track the actual number of artifacts returned (Toner

2010: 11). Some further definitions defined in NAGPRA include the provision

regarding items that are determined to be culturally unidentifiable. As indicated,

some cultural objects and artifacts were collected and catalogued in an incomplete

manner—regarding background data—or were collected without any provenience

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at all (Toner 2010: 9-12; Cortes-Rincon 2012). As a result, these objects with an

incomplete or missing provenience are often labeled as culturally unidentifiable

(Toner 2010: 11). Once deemed culturally unidentifiable, these artifacts become

much more difficult to claim for Native American and Hawaiian Tribes. NAGPRA

dictates that these culturally unidentifiable artifacts must be archived—now

possible to accomplish in digital, online formats—in order to provide a means for

Native American and Hawaiian Tribal review, possibly leading to identification of

the artifact’s cultural affiliation and eventual repatriation (Toner 2010: 9-12). As of

recently, just under 124,000 sets of Native American and Native Hawaiian human

remains remain classified as culturally unidentifiable nationally (Toner 2010: 10).

This number lies in juxtaposition with Government Accountability Office (GAO)

statistics regarding NAGPRA; according to the GAO, twenty years of NAGPRA efforts

have led to only fifty-five per cent of inventoried human remains and sixty-eight

percent of inventoried associated funerary objects being offered for, and repatriated

to Native American and Hawaiian Tribes (Toner 2010: 10-11). As mentioned earlier,

bias can play a role in NAGPRA. Just as any other piece of legislation, NAGPRA

contains possible flaws and accompanying possible revisions. The GAO has reported

that the NAGPRA committee has acted outside of the legal boundaries set by

NAGPRA in such actions as returning culturally unidentifiable remains to Tribes

that lack federal recognition or to coalitions of Tribes (Toner 2010: 9-12).

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It is important at this time to discuss other relevant laws and legislation

regarding the repatriation of use right to such things as traditional cultural

properties and sacred sites. One such law is the American Indian Religious Freedom

Act (AIRFA) of 1978, which of many things reversed the previous BIA prohibition of

Native American religious practices such as the White Deer Skin Dance and the

Potlatch (Rovier 2012). Such religious practices are often the events to which

repatriated items are required for correct practice (King 2008). AIFRA also has

stipulations mandating that governmental undertakings must be reviewed—with

the involvement of the affected local Tribal authorities—in terms of possible and

plausible impacts to the practice of traditional religion prior to the beginning of a

project (King 2008). Significant to this law is the intentional wording that protects

the action of religious practice, not necessarily limited to the designation of

protecting individual physical locations (King 2008). Executive order 13007 speaks

directly to the protection of Native American and Hawaiian sacred sites on federal

or Native American and Hawaiian lands (King 2008). Executive Order 13007 differs

from the National Historic Preservation Act (NHPA) in terms of scope; whereas

Executive Order 13007 mitigates impacts to sacred sites, NHPA is tasked with the

protection of historical properties on federal or Native American and Hawaiian

lands (King 2008).

Culturally affiliated artifacts currently housed in federally-funded or

supported museums and universities California are vastly outnumbered by those

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curated by the National Park Service and the Bureau of Land Management (Toner

2010: 9-12). Since the National Park Service and the Bureau of Land Management

are federally funded, those agencies must comply with NAGPRA as well (Dumont

2011; Cortes-Rincon 2012). A United States Fish and Wildlife Service Archaeologist

reported to the GAO that an inventory of all culturally affiliated items—held just by

the USFWS—could take as many as twenty-eight years to accomplish (Toner 2010:

11-12).

The museums, agencies, and universities receiving federal funding differ in

terms of the similarities and differences between their NAGPRA plans, coordination,

and resulting actions. As recently as 2007, UC Berkeley eliminated the NAGPRA

oversight unit at the on-campus Phoebe Hearst Museum (Anonymous 2007). In

response to this elimination, the Native American NAGPRA Coalition was formed

from representatives from five different Native American Tribes as a protest against

the decision (Anonymous 2007). One of the enduring goals of the Native American

NAGPRA Coalition is to express the fact that tribal consultation was not sought

before the oversight-removal decision was made (Anonymous 2007). Wesleyan

University, of Connecticut, has violated sections five and six of NAGPRA

(Anonymous 2011). Section five of NAGPRA requires that all possibly affected tribes

be consulted when regarding artifact inventory while section six of NAGPRA states

that federally-funded agencies, museums, or institutions must provide complete

lists of artifacts curated in such facilities to interested parties (Anonymous 2011). A

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year-long audit by the Government Accountability Office, completed in 2010,

concluded that federal-funded agencies, museums, and universities have failed to

comply with NAGPRA (Anonymous 2010). Included in the GAO report was the

restatement of the section of NAGPRA law that dictates repatriation activities must

be reported and provided to those whom request. Despite realizing some

repatriation of items of cultural patrimony, the GAO concluded that the U.S. Army

Corps of Engineers, the U.S. Forest Service, and the National Park Service have not

provided such repatriation reports of their progress to any Tribe or agency.

As specified by Robert McConnell, Tribal Historic Preservation Officer

(THPO) of the Yurok tribe, loss of items and artifacts of cultural patrimony is not

just an issue of the past; contemporarily, McConnell shares that looting is, “a daily

issue” (McConnell 2012). The Yurok Tribe is the largest in California and was also

the first Tribe in California to create a Tribal Historic Preservation Office and the

accompanying position of Tribal Historic Preservation Officer (McConnell 2012). At

the time the Yurok created their Tribal Historic Preservation Office, there were

fourteen THPOs nationally. Despite a sharp rise in the number of THPOs to over 140

nationally, the federal fiscal budget for THPOs has not increased, leading to the

increased dilution of already sparse funds McConnell 2012). In December of 2008,

James Truhls was arrested on charges of looting—his second arrest in under three

years for the same reason—grave sites from a prehistoric and historic Yurok village

site (Yurok Today 2009).

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The opinions and reactions of Native Americans, Native Hawaiians,

anthropologists and archaeologists to NAGPRA vary greatly. Bruce D. Smith, curator

of North American Archaeology at the Smithsonian Institution has claimed that the

repatriation of cultural items “would be an incalculable loss to science” (Toner

2010: 10-11). Conversely, Bambi Kraus—the president of the National Association

of Tribal Historic Preservation Officers—states that, “after twenty years of NAGPRA,

only about twenty per cent of our ancestors have been returned—a rate of about

one per cent a year” (Toner 2010: 10-11). Following that rate of repatriation, the

remaining artifacts would take another eighty years to repatriate. Fine-Dare (2005:

176) quotes Lakota anthropologist Bea Medicine as saying that, “the

disenchantment with anthropology as a discipline and [with] the anthropologist as

‘officious meddler’ is still a part of the fabric of research in reservation and urban

communities. This disdain may increase as issues of repatriation and intellectual

property rights escalate”. Patricia Capone is the associate curator at Harvard

University’s Peabody Museum of Archaeology and Ethnology (Toner 2010: 11-12).

She is quoted by Toner in the article “NAGPRA at Twenty” as saying that the

interaction between the Peabody Museum and numerous Tribal organizations has,

“provided a valuable context and rich cultural connections for the research we do”

(Toner 2010: 11-12). The Karuk Tribe’s (of Northern California) THPO (Tribal

Historic Preservation Officer) has worked in the past with the Peabody museum and

has stated that she witnessed many artifacts held at the Peabody that are incorrectly

labeled (Rovier 2012).

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NAGPRA, when passed, was a revolution in regards Native American and

Hawaiian’s right to reclaim items of cultural heritage. The issue of repatriation will

continued to be discussed and refined well into the future. Included in this

discussion will be some of the difficulties implementing and enforcing legislation

such as NAGPRA. Also, some serious thought must be given to the issue of

repatriating items of cultural patrimony that are held in places not influenced by

NAGPRA. Despite all of the identifiable shortcomings of NAGPRA, it was a precedent-

setting piece of legislation that has led to the return of some important cultural

artifacts, and led to opening the floor to the debate of indigenous rights and

anthropology.

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Bibliography

Anonymous ..

The Circle: News from an American Indian Perspective. August 1st, Vol. 28, Issue 8, 2007: 3.

Anonymous

The Circle: News from an American Indian Perspective. August 1st, Vol. 31, Issue 8, 2010: 3.

Anonymous

The Circle: News from an American Indian Perspective. February 1st, Vol. 32, Issue 2, 2011: 2.

Cortes-Rincon, Marisol

NAGPRA (lecture notes), HSU ANTH 374 class, February 21st, 2012.

Dumont, Jr., Clayton W.

Contesting Scientists' Narrations of NAGPRA's Legislative History. Wicazo Sa Review 26, no. 1 (Spring2011): 5-41.

Fine-Dare, Kathleen S.

Anthropological suspicion, public interest and NAGPRA. Journal of Social Archaeology 2005, 5: 171-192.

King, Thomas F.

Cultural Resources: Laws and Practice.

McConnell, Robert

Yurok Tribe guest lecture (lecture notes), HSU ANTH 374, February 14th, 2012.

Rovier, Helene

Karuk THPO guest lecture (lecture notes), HSU ANTH 374, March 20th, 2012.

Toner, Mike

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NAGPRA AT 20. Illinois Antiquity 45, no. 4 (December 2010): 9-12.