Native American Graves Protection and Repatriation Act (NAGPRA)
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In the late 1980s through 1990, the Association played a key role in obtaining the enactment of the Native American Graves Protection and Repatriation Act (NAGPRA), a federal law that provides graves protection for federal and Tribal lands, mandates repatriation of Ancestors, their burial belongings and sacred objection and cultural patrimony from federal agencies and any institution that has been in receipt of federal funds. The Association has been very involved in the implementation of NAGPRA, having facilitated repatriation of almost 2,000 human remains to Dakota Nations, as well as filing amicus briefs in NAGPRA cases, writing legal analyses of NAGPRA for Tribal and public use, providing NAGPRA training, and filing comments on proposed regulations. We also provide NAGPRA specific training as part of our Annual Repatriation Conference, and can customize training and technical assistance for Native Nations and institutions. |
Narrated by former Association Executive Director Jack Trope
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The Regulations
The Association attended Tribal consultations and public sessions, and worked with the Association's Tribal Partners Working Group and its Native organization to develop comprehensive comments and changes still needed to address longstanding concerns that have burdened Native Nations, as well as museums. You can learn more about the Association's comments here:
The Act
January 11, 2023
America’s Biggest Museums Fail to Return Native American Human Remains
by Logan Jaffe, Mary Hudetz and Ash Ngu, ProPublica, and Graham Lee Brewer, NBC News
ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.
Series: The Repatriation Project
ProPublica’s Investigation Into the Delayed Return of Native American Human Remains
As the United States pushed Native Americans from their lands to make way for westward expansion throughout the 1800s, museums and the federal government encouraged the looting of Indigenous remains, funerary objects and cultural items. Many of the institutions continue to hold these today — and in some cases resist their return despite the 1990 passage of the Native American Graves Protection and Repatriation Act.
“We never ceded or relinquished our dead. They were stolen,” James Riding In, then an Arizona State University professor who is Pawnee, said of the unreturned remains.
ProPublica this year is investigating the failure of NAGPRA to bring about the expeditious return of human remains by federally funded universities and museums. Our reporting, in partnership with NBC News, has found that a small group of institutions and government bodies has played an outsized role in the law’s failure.
Ten institutions hold about half of the Native American remains that have not been returned to tribes. These include old and prestigious museums with collections taken from ancestral lands not long after the U.S. government forcibly removed Native Americans from them, as well as state-run institutions that amassed their collections from earthen burial mounds that had protected the dead for hundreds of years. Two are arms of the U.S. government: the Interior Department, which administers the law, and the Tennessee Valley Authority, the nation’s largest federally owned utility.
An Interior Department spokesperson said it complies with its legal obligations and that its bureaus (such as the Bureau of Indian Affairs and Bureau of Land Management) are not required to begin the repatriation of “culturally unidentifiable human remains” unless a tribe or Native Hawaiian organization makes a formal request.
Tennessee Valley Authority Archaeologist and Tribal Liaison Marianne Shuler said the agency is committed to “partnering with federally recognized tribes as we work through the NAGPRA process.”
The law required institutions to publicly report their holdings and to consult with federally recognized tribes to determine which tribes human remains and objects should be repatriated to. Institutions were meant to consider cultural connections, including oral traditions as well as geographical, biological and archaeological links.
Yet many institutions have interpreted the definition of “cultural affiliation” so narrowly that they’ve been able to dismiss tribes’ connections to ancestors and keep remains and funerary objects. Throughout the 1990s, institutions including the Ohio History Connection and the University of Tennessee, Knoxville thwarted the repatriation process by categorizing everything in their collections that might be subject to the law as “culturally unidentifiable.”
Ohio History Connection’s director of American Indian relations, Alex Wesaw, who is also a citizen of the Pokagon Band of Potawatomi Indians, said that the institution’s original designation of so many collections as culturally unidentifiable may have “been used as a means to keep people on shelves for research and for other things that our institution just doesn’t allow anymore.”
In a statement provided to ProPublica, a University of Tennessee, Knoxville spokesperson said that the university is “actively building relationships with and consulting with Tribal communities.”
ProPublica found that the American Museum of Natural History has not returned some human remains taken from the Southwest, arguing that they are too old to determine which tribes — among dozens in the region — would be the correct ones to repatriate to. In the Midwest, the Illinois State Museum for decades refused to establish a cultural affiliation for Native American human remains that predated the arrival of Europeans in the region in 1673, citing no reliable written records during what archaeologists called the “pre-contact” or “prehistoric” period.
The American Museum of Natural History declined to comment for this story.
In a statement, Illinois State Museum Curator of Anthropology Brooke Morgan said that “archaeological and historical lines of evidence were privileged in determining cultural affiliation” in the mid-1990s, and that “a theoretical line was drawn in 1673.” Morgan attributed the museum’s past approach to a weakness of the law that she said did not encourage multiple tribes to collectively claim cultural affiliation, a practice she said is common today.
As of last month, about 200 institutions — including the University of Kentucky’s William S. Webb Museum of Anthropology and the nonprofit Center for American Archeology in Kampsville, Illinois — had repatriated none of the remains of more than 14,000 Native Americans in their collections. Some institutions with no recorded repatriations possess the remains of a single individual; others have as many as a couple thousand.
A University of Kentucky spokesperson told ProPublica the William S. Webb Museum “is committed to repatriating all Native American ancestral remains and funerary belongings, sacred objects and objects of cultural patrimony to Native nations” and that the institution has recently committed $800,000 toward future efforts.
Jason L. King, the executive director of the Center for American Archeology, said that the institution has complied with the law: “To date, no tribes have requested repatriation of remains or objects from the CAA.”
When the federal repatriation law passed in 1990, the Congressional Budget Office estimated it would take 10 years to repatriate all covered objects and remains to Native American tribes. Today, many tribal historic preservation officers and NAGPRA professionals characterize that estimate as laughable, given that Congress has never fully funded the federal office tasked with overseeing the law and administering consultation and repatriation grants. Author Chip Colwell, a former curator at the Denver Museum of Nature & Science, estimates repatriation will take at least another 70 years to complete. But the Interior Department, now led by the first Native American to serve in a cabinet position, is seeking changes to regulations that would push institutions to complete repatriation within three years. Some who work on repatriation for institutions and tribes have raised concerns about the feasibility of this timeline.
Our investigation included an analysis of records from more than 600 institutions; interviews with more than 100 tribal leaders, museum professionals and others; and the review of nearly 30 years of transcripts from the federal committee that hears disputes related to the law.
D. Rae Gould, executive director of the Native American and Indigenous Studies Initiative at Brown University and a member of the Hassanamisco Band of Nipmucs of Massachusetts, said institutions that don’t want to repatriate often claim there’s inadequate evidence to link ancestral human remains to any living people.
Gould said “one of the faults with the law” is that institutions, and not tribes, have the final say on whether their collections are considered culturally related to the tribes seeking repatriation. “Institutions take advantage of it,” she said.
Some of the nation’s most prestigious museums continue to hold vast collections of remains and funerary objects that could be returned under NAGPRA.
Harvard University’s Peabody Museum of Archaeology and Ethnology in Cambridge, Massachusetts, University of California, Berkeley and the Field Museum in Chicago each hold the remains of more than 1,000 Native Americans. Their earliest collections date back to the 19th and early 20th centuries, when their curators sought to amass encyclopedic collections of human remains.
Many anthropologists from that time justified large-scale collecting as a way to preserve evidence of what they wrongly believed was an extinct race of “Moundbuilders” — one that predated and was unrelated to Native Americans. Later, after that theory proved to be false, archaeologists still excavated gravesites under a different racist justification: Many scientists who embraced the U.S. eugenics movement used plundered craniums for studies that argued Native Americans were inferior to white people based on their skull sizes.
These colonialist myths were also used to justify the U.S. government’s brutality toward Native Americans and fuel much of the racism that they continue to face today.
“Native Americans have always been the object of study instead of real people,” said Shannon O’Loughlin, chief executive of the Association on American Indian Affairs and a citizen of the Choctaw Nation of Oklahoma.
As the new field of archaeology gained momentum in the 1870s, the Smithsonian Institution struck a deal with U.S. Army Gen. William Tecumseh Sherman to pay each of his soldiers up to $500 — or roughly $14,000 in 2022 dollars — for items such as clothing, weapons and everyday tools sent back to Washington.
“We are desirous of procuring large numbers of complete equipments in the way of dress, ornament, weapons of war” and “in fact everything bearing upon the life and character of the Indians,” Joseph Henry, the first secretary of the Smithsonian, wrote to Sherman on May 22, 1873.
The Smithsonian Institution today holds in storage the remains of roughly 10,000 people, more than any other U.S. museum. However, it reports its repatriation progress under a different law, the National Museum of the American Indian Act. And it does not publicly share information about what it has yet to repatriate with the same detail that NAGPRA requires of institutions it covers. Instead, the Smithsonian shares its inventory lists with tribes, two spokespeople told ProPublica.
Frederic Ward Putnam, who was appointed curator of Harvard University’s Peabody Museum of American Archaeology and Ethnology in 1875, commissioned and funded excavations that would become some of the earliest collections at Harvard, the American Museum of Natural History and the Field Museum. He also helped establish the anthropology department and museum at UC Berkeley — which holds more human remains taken from Native American gravesites than any other U.S. institution that must comply with NAGPRA.
For the 1893 World’s Columbian Exposition in Chicago, Putnam commissioned the self-taught archaeologist Warren K. Moorehead to lead excavations in southern Ohio to take human remains and “relics” for display. Much of what Moorehead unearthed from Ohio’s Ross and Warren counties became founding collections of the Field Museum.
A few years after Moorehead’s excavations, the American Museum of Natural History co-sponsored rival expeditions to the Southwest; items were looted from New Mexico’s Chaco Canyon and shipped by train to New York. They remain premiere collections of the institution.
As of last month the Field Museum has returned to tribes legal control of 28% of the remains of 1,830 Native Americans it has reported to the National Park Service, which administers the law and keeps inventory data. It still holds at least 1,300 Native American remains.
In a statement, the Field Museum said that data from the park service is out of date. (The museum publishes separate data on its repatriation website that it says is frequently updated and more accurate.) A spokesperson told ProPublica that “all Native American human remains under NAGPRA are available for return.”
The museum has acknowledged that Moorehead’s excavations would not meet today’s standards. But the museum continues to benefit from those collections. Between 2003 and 2005, it accepted $400,000 from the National Endowment for the Humanities to preserve its North American Ethnographic and Archaeological collection — including the material excavated by Moorehead — for future use by anthropologists and other researchers. That’s nearly four times more than it received in grants from the National Park Service during the same period to support its repatriation efforts under NAGPRA.
In a statement, the museum said it has the responsibility to care for its collections and that the $400,000 grant was “used for improved stewardship of objects in our care as well as organizing information to better understand provenance and to make records more publicly accessible.”
Records show the Field Museum has categorized all of its collections excavated by Moorehead as culturally unidentifiable. The museum said that in 1995, it notified tribes with historical ties to southern Ohio about those collections but did not receive any requests for repatriation or disposition. Helen Robbins, the museum’s director of repatriation, said that formally linking specific tribes with those sites is challenging, but that it may be possible after consultations with tribes.
The museum’s president and CEO, Julian Siggers, has criticized proposals intended to speed up repatriation. In March 2022, Siggers wrote to Interior Secretary Deb Haaland that if new regulations empowered tribes to request repatriations on the basis of geographical ties to collections rather than cultural ties, museums such as the Field would need more time and money to comply. ProPublica found that the Field Museum has received more federal money to comply with NAGPRA than any other institution in the country.
Robbins said that among the institution’s challenges to repatriation is a lack of funding and staff. “That being said,” added Robbins, “we recognize that much of this work has taken too long.”
From the 1890s through the 1930s, archaeologists carried out large-scale excavations of burial mounds throughout the Midwest and Southeast, regions where federal policy had forcibly pushed tribes from their land. Of the 10 institutions that hold the most human remains in the country, seven are in regions that were inhabited by Indigenous people with mound building cultures, ProPublica found.
Among them are the Ohio History Connection, the University of Kentucky’s William S. Webb Museum of Anthropology, the University of Tennessee, Knoxville and the Illinois State Museum.
Archaeological research suggests that the oldest burial mounds were built roughly 11,000 years ago and that the practice lasted through the 1400s. The oral histories of many present-day tribes link their ancestors to earthen mounds. Their structures and purposes vary, but many include spaces for communal gatherings and platforms for homes and for burying the dead. But some institutions have argued these histories aren’t adequate proof that today’s tribes are the rightful stewards of the human remains and funerary objects removed from the mounds, which therefore should stay in museums.
Like national institutions, local museums likewise make liberal use of the “culturally unidentifiable” designation to resist returning remains. For example, in 1998 the Ohio Historical Society (now Ohio History Connection) categorized its entire collection, which today includes more than 7,100 human remains, as “culturally unidentifiable.” It has made available for return the remains of 17 Native Americans, representing 0.2% of the human remains in its collections.
“It’s tough for folks who worked in the field their entire career and who are coming at it more from a colonial perspective — that what you would find in the ground is yours,” said Wesaw of previous generations’ practices. “That’s not the case anymore. That’s not how we operate.”
For decades, Indigenous people in Ohio have protested the museum’s decisions, claiming in public meetings of the federal committee that oversees how the law is implemented that their oral histories trace back to mound-building cultures. As one commenter, Jean McCoard of the Native American Alliance of Ohio, pointed out in 1997, there are no federally recognized tribes in Ohio because they were forcibly removed. As a result, McCoard argued, archaeologists in the state have been allowed to disassociate ancestral human remains from living people without much opposition. Since the early 1990s, the Native American Alliance of Ohio has advocated for the reburial of all human remains held by Ohio History Connection. It has yet to happen.
Wesaw said that the museum is starting to engage more with tribes to return their ancestors and belongings. Every other month, the museum’s NAGPRA specialist— a newly created position that is fully dedicated to its repatriation work — convenes virtual meetings with leaders from many of the roughly 45 tribes with ancestral ties to Ohio.
But, Wesaw said, the challenges run deep.
“It’s an old museum,” said Wesaw. “Since 1885, there have been a number of archaeologists that have made their careers on the backs of our ancestors pulled out of the ground or mounds. It’s really, truly heartbreaking when you think about that.”
Moreover, ProPublica’s investigation found that some collections were amassed with the help of federal funding. The vast majority of NAGPRA collections held by the University of Kentucky’s William S. Webb Museum of Anthropology are from excavations funded by the federal government under the New Deal’s Works Progress Administration from the late 1930s into the 1940s. Kentucky’s rural and impoverished counties held burial mounds, and Washington funded excavations of 48 sites in at least 12 counties to create jobs for the unemployed.
More than 80% of the Webb Museum’s holdings that are subject to return under federal law originated from WPA excavations. The museum, which in 1996 designated every one of its collections as “culturally unidentifiable,” has yet to repatriate any of the roughly 4,500 human remains it has reported to the federal government. However, the museum has recently hired its first NAGPRA coordinator and renewed consultations with tribal nations after decades of avoiding repatriation. A spokesperson told ProPublica that one ongoing repatriation project at the museum will lead to the return of about 15% of the human remains in its collections.
In a statement, a museum spokesperson said that “we recognize the pain caused by past practices” and that the institution plans to commit more resources toward repatriation.
The University of Kentucky recently told ProPublica that it plans to spend more than $800,000 between 2023 and 2025 on repatriation, including the hiring of three more museum staff positions.
In 2010, the Interior Department implemented a new rule that provided a way for institutions to return remains and items without establishing a cultural affiliation between present-day tribes and their ancestors. But, ProPublica found, some institutions have resisted doing so.
Experts say a lack of funding from Congress to the National NAGPRA Program has hampered enforcement of the law. The National Park Service was only recently able to fund one full-time staff position dedicated to investigating claims that institutions are not complying with the law; allegations can range from withholding information from tribes about collections, to not responding to consultation requests, to refusing to repatriate. Previously, the program relied on a part-time investigator.
Moreover, institutions that have violated the law have faced only minuscule fines, and some are not fined at all even after the Interior Department has found wrongdoing. Since 1990, the Interior Department has collected only $59,111.34 from 20 institutions for which it had substantiated allegations. That leaves tribal nations to shoulder the financial and emotional burden of the repatriation work.
The Santa Ynez Band of Chumash Indians, a tribe in California, pressured UC Berkeley for years to repatriate more than a thousand ancestral remains, according to the tribe’s attorney. It finally happened in 2018 following a decade-long campaign that involved costly legal wrangling and travel back and forth to Berkeley by the tribes’ leaders.
“To me, there’s no money, there’s no dollar amount, on the work to be done. But the fact is, not every tribe has the same infrastructure and funding that others have,” said Nakia Zavalla, the cultural director for the tribe. “I really feel for those tribes that don’t have the funding, and they’re relying just on federal funds.”
A UC Berkeley spokesperson declined to comment on its interactions with the Santa Ynez Chumash, saying the school wants to prioritize communication with the tribe.
The University of Alabama Museums is among the institutions that have forced tribes into lengthy disputes over repatriation.
In June 2021, seven tribal nations indigenous to what is now the southeastern United States collectively asked the university to return the remains of nearly 6,000 of their ancestors. Their ancestors had been among more than 10,000 whose remains were unearthed by anthropologists and archaeologists between the 1930s and the 1980s from the second-largest mound site in the country. The site, colonially known as Moundville, was an important cultural and trade hub for Muskogean-speaking people between about 1050 and 1650.
Tribes had tried for more than a decade to repatriate Moundville ancestors, but the university had claimed they were all “culturally unidentifiable.” Emails between university and tribal leaders in 2018 show that when the university finally agreed to begin repatriation, it insisted that before it could return the human remains it needed to re-inventory its entire Moundville collection — a process it said would take five years. The “re-inventory” would entail photographing and CT scanning human remains to collect data for future studies, which the tribes opposed.
In October 2021, leaders from the Choctaw Nation of Oklahoma, Chickasaw Nation, Muscogee (Creek) Nation, Seminole Nation of Oklahoma, and Seminole Tribe of Florida brought the issue to the federal NAGPRA Review Committee, which can recommend a finding of cultural affiliation that is not legally binding. (Disputes over these findings are relatively rare.) The tribal leaders submitted a 117-page document detailing how Muskogean-speaking tribes are related and how their shared history can be traced back to the Moundville area long before the arrival of Europeans.
“Our elders tell us that the Muskogean-speaking tribes are related to each other. We have a shared history of colonization and a shared history of rebuilding from it,” Ian Thompson, a tribal historic preservation officer with the Choctaw Nation, told the NAGPRA review committee in 2021.
The tribes eventually forced the largest repatriation in NAGPRA’s history. Last year, the university agreed to return the remains of 10,245 ancestors.
In a statement, a University of Alabama Museums spokesperson said, “To honor and preserve historical and cultural heritage, the proper care of artifacts and ancestral remains of Muskogean-speaking peoples has been and will continue to be imperative to UA.” The university declined to comment further “out of respect for the tribes,” but added that “we look forward to continuing our productive work” with them.
The University of Alabama Museums still holds the remains of more than 2,900 Native Americans.
Many tribal and museum leaders say they are optimistic that a new generation of archaeologists, as well as museum and institutional leaders, want to better comply with the law.
At the University of Oklahoma, for instance, new archaeology department hires were shocked to learn about their predecessors’ failures. Marc Levine, associate curator of archaeology at the university’s Sam Noble Museum, said that when he arrived in 2013, there was more than enough evidence to begin repatriation, but his predecessors hadn’t prioritized the work. Through collaboration with tribal nations, Levine has compiled evidence that would allow thousands of human remains to be repatriated — and NAGPRA work isn’t technically part of his job description. The university has no full-time NAGPRA coordinator. Still, Levine estimates that at the current pace, repatriating the university’s holdings could take another decade.
Prominent institutions such as Harvard have issued public apologies in recent years for past collection practices, even as criticism continues over their failure to complete the work of repatriation. (Harvard did not respond to multiple requests for comment).
Other institutions under fire, such as UC Berkeley, have publicly pledged to prioritize repatriation. And the Society for American Archaeology, a professional organization that argued in a 1986 policy statement that “all human remains should receive appropriate scientific study,” now recommends archaeologists obtain consent from descendant communities before conducting studies.
In October, the Biden administration proposed regulations that would eliminate “culturally unidentifiable” as a designation for human remains, among other changes. Perhaps most significantly, the regulations would direct institutions to defer to tribal nations’ knowledge of their customs, traditions and histories when making repatriation decisions.
But for people who have been doing the work since its passage, NAGPRA was never complicated.
“You either want to do the right thing or you don’t,” said Brown University’s Gould.
She added: “It’s an issue of dignity at this point.”
