We believe that they have a heart, they have a mind of their own. They’re alive.
They’re active. That’s how hard we believe in those objects.
They’re the ones that are giving us the opportunity to do our obligations.
Wilton Kooyahoema1 (Benton Bruning 2013:265)
I wanted a rattle and moccasins.
And then the collecting bug seized me and I was lost.
George Gustav Heye2 (Mason 1958:11)
Cultural objects compel and inspire. They can empower and engage those who value them as manifestations of long-enduring beliefs. They can intrigue and seduce those who see them as exotic collectibles. Strong and contrasting opinions shape the tumultuous dynamics of claims to cultural property.
What is “cultural property”? What associated rights and obligations should society recognize? It has been argued that the concept of cultural property is inherently paradoxical. “Cultural property is contradictory in the very pairing of its core concepts. Property is fixed, possessed, controlled by its owner, and alienable. Culture is none of those things” (Mezey 2007:2005). Efforts to address cultural property concerns raise complex and often conflicting notions of what objects we value, why we value them, and how they should be dealt with throughout time.
At the largest scale of inquiry, multinational coalitions engage in efforts to articulate and manage humankind’s global cultural legacy. The 1954 Hague Convention speaks to the cultural heritage of “every people” as it trumpets a global call for protection of cultural sites and objects during armed conflict (Hague 1954: preamble). The 1970 UNESCO Convention declares that “cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” The UNESCO Convention further calls for countries to be “increasingly alive to the moral obligations to respect [their] own cultural heritage and that of all nations” and to manage their collections according to “universally recognized moral principles” (UNESCO 1970: preamble).
While it may be tempting to look for universal values in the search for solutions to dilemmas involving cultural property, no single value system can be articulated and accepted by all stakeholders. The United Nations, despite its use of universalist language, acknowledged in its 2007 Declaration on the Rights of Indigenous Peoples that Indigenous peoples, while equal to all others, have suffered historical injustices that compel particular attention and redress. Cultural property is one area of concern to which the Declaration speaks:
Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
(UN 2007: Article 11)
The Declaration reflects the culmination of twenty-five years of focus by the United Nations on historical injustices inflicted on Indigenous peoples.3 Despite its powerful language, however, the Declaration is not a legally binding instrument. Its power only lies in its potential to influence national legislation supportive of Indigenous interests.
In the late twentieth century, the United States enacted legislation seeking to provide a mechanism through which Native American tribes can recover human remains and important cultural items that were removed from their places and peoples of origin without consent. NAGPRA is a leap forward in terms of national efforts to acknowledge some of the myriad traumas and injustices inflicted on Native peoples. At the same time, however, it is constricted by its own language and by the realities of bureaucracy and clashing worldviews that linger and continue to dampen the force of Native voices who seek just resolution of historical wrongs through repossession and control over their cultural legacy.
The Native American Graves Protection and Repatriation Act (NAGPRA) endeavors to redress some of the historical injustices inflicted on the cultural heritage of Indigenous people in the United States. NAGPRA was adopted in 1990, seventeen years prior to the United Nations’ adoption of its Declaration. The enactment of NAGPRA followed close to a century of national cultural preservation laws that began in 1906 with the Antiquities Act and include notable legislation such as the 1966 National Historic Preservation Act (NHPA) and the 1979 Archaeological Resources Protection Act (ARPA). The NHPA focuses on the federal government’s role in preserving sites and structures with historical value to society in general, while ARPA focuses on the scientific excavation, curation, and study of items, including human remains, characterized as “archaeological resources.” In contrast, NAGPRA is the first US law to attempt to place Indigenous priorities explicitly at the forefront of cultural property decision-making, at least as they relate to public collections and Indigenous burial sites.
During most of the twentieth century, archaeological concerns took precedence in developing laws and policies affecting the excavation of burials and the collection of Native American objects. The research community valued Native American cultural objects in large part for what they might tell non-Native people about the country’s pre-contact past. Remains and objects were to be preserved and kept available indefinitely for study in order to educate the larger populace about Native cultures. Traditional Western policies toward historic preservation and curation did not accommodate conflicting Indigenous practices, such as those intending some objects, such as Yup’ik masks or Zuni Ahayu:da (war gods), to succumb to the natural elements (Dubin 2001:30–31).
Increasing contact between Native and non-Native people spurred marketplace demand for items from Native cultures. Although some objects began to be mass-produced in response to the collecting hunger of the early marketplace, demand also continued for rare, “authentic” collectibles. The Indian Arts and Crafts Act was enacted in the early twentieth century to focus on authenticity; it required that objects held out as Native-American must have been created by a Native American craftsperson. One of the goals of this legislation was to stimulate and protect the market for authentic Indian-made objects and stop non-Native made material being passed off as Native (Dubin 2001:31). As was often the case throughout the larger arts marketplace, however, questions about authenticity were of ongoing interest to the collecting world, which wanted items “made by Indians,” preferably reflecting pre-contact, ritual, or cultural practices, while questions about the appropriateness of the items’ sources, such as burials or sacred sites, were rarely raised. In the last decades of the twentieth century, many stakeholders, including Indigenous communities, museums, scholars, and others, increasingly voiced concerns about larger historical, legal, political, and cultural contexts from which objects have been allowed to circulate through the marketplace and make their way into public and private collections (Greenfield 1995:xiii).
Perspectives about the legal, ethical, and moral appropriateness of excavating, studying, collecting, and displaying cultural objects vary widely among present-day peoples who prioritize their values in different ways. Heritage laws in the United States have evolved in ways that only partially address the variability of heritage values held by constituent groups: repatriation versus preservation; confidentiality versus shared knowledge; ownership versus custodianship. Notable cultural property disputes in other contexts, such as those surrounding the removal of the Parthenon (“Elgin”) Marbles from Greece,4 highlight the intensity and, at times, intransigence of those on contrary sides of struggles to control the fates of ancient objects. As legal structures and opinions pertaining to the protection and management of cultural heritage continue to evolve, we continue to face daunting challenges in our efforts to establish social priorities and strike balances among those with conflicting value systems.
It is important to understand the scope and limitations of NAGPRA’s role in mediating interests in cultural items. NAGPRA is United States federal legislation applicable nationwide to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony – as defined in the law – that are held in federally funded institutions or removed from federal or tribal lands since the statute’s enactment. It does not apply to all Native American cultural objects, and it requires federal recognition for an Indigenous group to have decision-making authority about such objects or about human remains with which it may claim affiliation. NAGPRA imposes certain processes, such as mandated consultation, by which decisions must be made to resolve the disposition status of the human remains and cultural items at issue.
NAGPRA mandates that museums and federal agencies, in consultation with federally recognized Native American tribes, assess the cultural identities of Indigenous groups and the extent to which they relate to earlier groups from which human remains and other cultural objects derive. This mandate triggered widespread interest and focus on questions about the nature of archaeological research and its impacts on Native American descendant groups.5 The prompt explosion of literature on the relations between archaeologists and Native Americans in the repatriation era confirms the imperative for the archaeological community to involve itself proactively in the ongoing debates involving cultural affiliation. One group of archaeologists declared that “[t]he nature of archaeology in the twenty-first century depends on the outcome of debates currently raging in the discipline, as ‘people without history’ strive to reclaim their pasts” (McIntosh et al. 1996).
The enactment of NAGPRA was a watershed event in the history of Americanist archaeology (Lovis et al. 2004). By bringing together archaeologists, curators, and Native American groups – at times solely through the force of law – and by reallocating rights and obligations pertaining to large swaths of the archaeological record, NAGPRA has profoundly reshaped the ways in which scholars, descendant communities, and the public access, research, interpret, and manage the material remains of the American past (Ferguson et al. 2000). NAGPRA’s forced consultations and reallocations of decision-making authority triggered collisions of archaeological and Native American approaches to articulating cultural identities and acknowledging connections between present and past peoples (Thomas 2000). Yet in the wake of NAGPRA’s mandated consultations and negotiations, some stakeholders have been finding ways to transcend their differences and willingly pursue collaborative research efforts. Such efforts are reshaping theoretical and methodological approaches to exploring and interpreting aspects of the human past (Mills et al. 2008). The growth of archaeological practices that are informed by Indigenous perspectives and interests reflects important changes in why and how scholarly research is conducted in this realm.6
NAGPRA is also seen by many as important human rights legislation that provides Native American peoples with voice and power previously unavailable to them as they seek to care for their ancestors and for sacred and ceremonial objects. The displacement of people and objects over the centuries since European arrival has been immense, playing out through forced relocation, excavation of graves, removal of bodies from battlefields for scientific research, and collection of objects. NAGPRA provides important, albeit limited, power for Native American groups to shift control and apply their own value systems to decisions about how graves, human remains, and important cultural items are cared for.
Since NAGPRA’s enactment, many positive relationships have been forged between archaeologists and tribes as a result of the increased number of collaborations (Swidler et al. 1997; Zimmerman et al. 2003). At the same time, scholarly and public debates have continued about the validity and importance of competing interests related to the scientific study of human remains and culturally sensitive objects. A rich mosaic of publications has explored various perspectives on archaeologist–tribal relations and the handling of human remains.7
Scientific, tribal, and other approaches to understanding cultural links to the past are reflected in the diversity of ways that people assert control over the material remains of the past. None of these diverse viewpoints will necessarily find its direct correlative in NAGPRA. The statute’s purpose in assessing cultural affiliation is limited to its goal of resolving the particular matters addressed by the statute itself. It does not endeavor to explain links between the present and the past in terms that satisfy Native American or scientific views; instead, NAGPRA establishes processes to resolve claims for control over particular Native American remains and cultural items.
From a legal standpoint, NAGPRA has reshaped rights and liabilities of the scientific and cultural communities by empowering certain Native American groups to take primacy in decision-making authority over the fate of human remains and cultural items in museum, agency, and university collections. It recasts ideas about evidence admissible in court by allowing consideration of information that might appear to fall outside the rules related to hearsay, such as oral tradition and folklore,8 and to allow people to be qualified in court as experts who may not hold the traditional educational credentials often expected by the legal system.
NAGPRA has also turned some ideas about scientific freedom on their head in some significant respects. Prior to the twentieth century, researchers and explorers throughout the United States effectively had free rein to excavate, study, and build collections of Native American human remains and items. Throughout the twentieth century, the United States had laws in place that have generally favored the interests of the scholarly community, supporting the excavation, investigation, study, collection, interpretation, and curation of cultural objects. Scholars often pursued those interests with total or significant disregard of the perspectives or wishes of descendant communities. NAGPRA restructured the power dynamics between Native Americans and archaeologists, by decreasing the volume of materials available for research while simultaneously increasing the level of interaction between these groups.
A legal tool designed to resolve some conflicts can perform like a scalpel, precisely targeting the problem area and removing the source of pain. However, when designed with an eye to resolving deep cultural conflicts, such as those embedded in repatriation, a legal tool may, instead, feel like bludgeon. In practice, NAGPRA has led to the return of thousands of Native American human remains and cultural items. Some tribes and institutions have developed innovative, collaborative curation methodologies for many more that remain in public collections. Yet deep concerns remain, and the repatriation journey is far from complete. Amid the flurry of publications, formal notices, and public debates, the voices of Native American individuals dealing with the actual business of repatriation have often gone unheard. Beyond the boundaries of the law’s definitions, directives, and processes, Native American individuals and communities experience the realities of trying to find, identify, and resolve the fates of their ancestors and valued objects. For instance, just locating ancestors across the vast museum/university matrix offers one daunting challenge; negotiating for their return presents another.
NAGPRA’s repatriation process, as set forth in the law, begins with an institutional inventory of cultural items in curation and ends with the transfer of possession or control to a culturally affiliated Indian tribe. The formal process, however, represents a limited stretch of road on a much longer journey for tribes. Tribal members involved in issues of repatriation struggle with the realities that led to institutional curation of the remains of their ancestors and valued cultural objects. They confront the difficult emotional and cultural challenges involved in the identification and consultation process, when they must discuss and analyze details of how human remains and burial items came to be removed from their resting places, studied by scientists, displayed as art objects, sold on the marketplace as collectibles, and stored in boxes on basement shelves. They witness their sacred objects being handled in ways that are anathema to their religious beliefs.
When items are ultimately identified as culturally affiliated with a tribe, tribal representatives face additional cultural and personal hurdles: determining and carrying out appropriate disposition decisions for the items. Conversations with Native American experts who have taken on the responsibility of dealing with repatriation have revealed a complex mosaic of issues that touch the communities and individuals involved. Theresa Pasqual, former director of the Acoma Historic Preservation Office, noted that complicated realities underpin legal efforts to resolve historical injustices:
Okay, here’s an institution, here’s a research facility. Do the inventory, do the documents, this is the process to follow. . . . We have to move them through the NAGPRA process, but we’ve never addressed those underlying issues of what got those remains there . . . We have to start looking at these other problems, and how to start addressing those underlying issues.
(Benton Bruning 2013:263).
Ms. Pasqual’s comment highlights the distinction between dealing with physical remains and objects themselves, which NAGPRA addresses, and dealing with the difficult historical realities that led to the disturbance of burials and the removal of individuals and sacred objects for purposes contrary to the deepest interests of their communities. NAGPRA is not designed to tackle the many wrenching underlying questions of how such items came to be treated as appropriate for purchase and collection. Much of the international arts marketplace continues to ignore or deny the legitimacy of such questions; collectors still seek rare objects deriving from “exotic” origins.9 In recent years, several art auctions held in Paris, France, have sold important cultural items taken from tribal communities in the US. The items, considered sacred deities to their origin communities, were sold as Katsina “masks” over the passionate and public objections of tribal representatives and other supporters prior to and at the auctions.
The scientific community has also wrestled with challenges to its claim of authority to study human remains, as reflected in the protracted lawsuit by scientists against the US government over control of ancient remains known as “Kennewick Man.” The scientists asserted, and the court agreed, that evidence was insufficient to legally prove the Native American ancestry of the remains for purposes of applying NAGPRA.10 The Kennewick Man case highlighted the difficulties of drafting laws and regulations that clearly and adequately address the rights and obligations of all parties involved.
Debates triggered by NAGPRA reach beyond its legal confines to many different legal, political, and philosophical realms. Perhaps changes should be made to clarify or modify the statute or its regulations, to more accurately interpret or implement those provisions, or to bring public expectations into better alignment with the law. David Hurst Thomas summed things up concisely: “NAGPRA remains a very murky piece of legislation, and clarifying it will be a bumpy political process” (Thomas 2000:275).
What is in store for those continuing their engagement with NAGPRA? Disputes still rage and differing worldviews continue to clash as parties debate notions of rights, responsibilities, ownership, and stewardship. NAGPRA addresses specific issues and processes, but it cannot resolve all the substantive and emotional tensions that stretch well beyond the four corners of the legislation, tensions involving larger issues of cultural autonomy, civil rights, human rights, and sovereignty. NAGPRA is not a panacea for the myriad concerns of Indigenous peoples, scholars, and the public relating to protection, study, access, and control over Native American cultural objects. Perhaps it is at least a step toward greater autonomy for Native Americans seeking to assert their own value systems in the caretaking of cultural objects.
A few important concepts lie at the crux of many debates about the benefits and detriments of NAGPRA. Definitions of “sacred object,” “cultural patrimony,” and “cultural affiliation” create a means to systematize determinations of which items qualify for repatriation and which groups qualify to claim them. At the same time, the definitions create tensions due to varying understandings and beliefs about what constitutes sacredness, cultural importance, and group relatedness. In an effort to delineate situations where repatriation is mandated, the law provides definitions that have proven to be problematic both in identifying which items qualify for repatriation and who is entitled to claim control over them.
The requirement that a tribe “prove” that a cultural item qualifies for repatriation raises concerns about the proprietary nature of certain knowledge. Disclosure of culturally sensitive information can sever the link between information and its value to the community. Only through the control of certain knowledge elements by particular individuals or groups does some traditional knowledge maintain its vitality as an active asset of the community. By requiring disclosure of the bases upon which an object meets the definition of “sacred” or “patrimony,” NAGPRA arguably presses Indigenous groups to violate their own values by requiring them to “make their case” through disclosure of information that will allow outsiders to determine whether they will recognize their NAGPRA-based claims and acknowledge their shared identity with human remains and cultural items at issue. As explained by Octavius Seowtewa, leader of the Galaxy Medicine Society at Zuni,
A lot of problems stem from giving esoteric information about who we really are. Some of that information has been used against the tribes. Some of that information was not supposed to have been given out. Some of this information is putting tribes against each other, and that is one of the few things that need to be changed in NAGPRA.
(Benton Bruning 2013:246).
As the law was being drafted, concerns about access to culturally sensitive information led to a change in language that reduced the NAGPRA Review Committee’s right of access to such information from “full and free”11 to “reasonable.”12 Left unanswered, however, is the question of what is “reasonable” and whose judgement should prevail in making such a decision.
Complexities involving claims for sacred objects and objects of cultural patrimony extend beyond issues of confidentiality. Determining sacredness for NAGPRA’s purpose is fraught with concerns about proof. The law requires analysis of whether the objects were, and still are, necessary for use by traditional religious leaders. Debates continue over which parties should be recognized as proper authorities to speak to this designation. As noted by Mr. Seowtewa in his comment expressing concern about the negative impacts that may result from disclosure of esoteric information, many Native Americans have expressed concerns about having to reveal confidential information to outsiders in order to “prove” the sacredness of objects. Claims for objects on the basis of cultural patrimony involve questions of whether objects were owned individually or communally when first transferred from tribal hands and whether the transferor had tribal authority to act on behalf of the group. Culturally diverse concepts of property ownership and custodianship, and questions about rights and obligations associated with possession, have led to debates over whether, for example, a Navajo singer’s widow had proper authority to sell ritual objects,13 or whether the sale of masks by individual members of the White Mountain Apache tribe in the early twentieth century should ever be considered voluntary in light of the pervasiveness of harsh conditions under which the Apache people were living at the time (NAGPRA Review Committee 2006). Again, questions about how collections came to be made, and the very difficult conditions that led to significant cultural items leaving communities, remain outside the purview of NAGPRA. Like many pieces of legislation however, these ‘pre’ issues often return and are embedded in the very negotiations themselves. NAGPRA triggers discussions about rights of possession but leaves open the means by which tribal claimants must prove their claims.
Under NAGPRA, an Indian tribe or Native Hawaiian organization with the closest cultural affiliation to an item is entitled to control its ultimate disposition. Cultural affiliation is defined as “a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group.” In order to prove a claim of cultural affiliation, the statute identifies a wide range of acceptable evidence – geography, biology, archaeology, anthropology, linguistics, kinship, folklore, oral tradition, and history – as well as “other relevant information or expert opinion” (NAGPRA Section 7(a)(4)). Once cultural affiliation is determined, the affiliated group is empowered to determine what disposition is appropriate for the item, be it return to the claimant group, ongoing curation, reburial, or otherwise.
Yet again, there are complexities embedded in legal mandates to “reasonably trace” relationships between present-day peoples and past groups. This mandate invokes concepts of identity anchored in the past and continuing into the present. It also reaffirms tensions embedded within the larger recognition process, in that only federally recognized tribes can make use and make claims under NAGPRA. This leaves non-federally recognized tribes without a legal means of redress for their similarly situated ancestors and items of cultural significance.
Group identity is a cultural construct, a conceptualization shared by those within the group who, by the nature of their particular perspectives, see themselves as connected to each other in a culturally distinct manner from those outside the group. Because of federal conditions for formal recognition, group identity has also become a legal construct. In order to operationalize a group’s identity when dealing in contexts such as NAGPRA’s consultation and repatriation processes, non-Native stakeholders, such as museums, universities and federal agencies, must accept that group’s assertion of identity. Perspectives about shared group identities may connect one contemporary group to the past as well as to other contemporary groups through shared conceptions of ancestry. This can complicate NAGPRA’s implementation, which assumes one affiliated or “most closely affiliated” tribe.14
Indigenous perspectives of identity and affiliation may hinge on ancestral relationships to a place or a landscape, shared symbolic systems, paradigms of explanation about origins and migrations, and other factors. Shared group identity is not a precisely constituted concept, but is rather a bundle of concepts and understandings that includes a plethora of meaningful social elements such as traditional knowledge, landscapes, specific places, histories, material objects, lineage ties, and symbolic representations. NAGPRA has little room to take in this complex of social considerations and relationships around cultural materials that are the very subject of this law.
Prior to NAGPRA’s passage, tribal representatives and scholars from across the nation testified to Congress about the need for federal legislation to combat two primary concerns. The first was the continued excavation of Indigenous graves, driven by disparate motives such as scholarly research, a vocational interest in discovering artifacts, or looting of objects to satisfy a market hungry for ancient and authentic Native American goods. The second was the vast number of Native American human remains accumulated in institutional collections, many of which came from legally sanctioned excavations or removals.
This testimony and related efforts triggered calls for legislation to provide a mechanism for the return of the remains and related funerary objects to tribal descendants (Senate Report 1990:3). The 1868 Surgeon General’s order to Army field officers to collect and send Indian skeletons to Washington, DC for scientific study is a notorious example of the type of action that contributed to the growth of some institutional collections (House Report 1990:9). The Senate Select Committee on Indian Affairs commiserated with tribal leaders who expressed concerns that museums and federal agencies had not historically conducted meaningful inquiry into the circumstances by which donors or sellers had acquired items. Concern over the continued growth of a black market trade in Native American funerary and ceremonial objects also played a part in Congress’s decision to support the law (Senate Report 1990:5).
A few notable events in the complex history preceding NAGPRA’s enactment help illustrate the impetus for its ultimate passage. In the 1970s, following negotiations over the return of several skulls of Modoc tribal members to their descendants, the Smithsonian Institution adopted its first departmental policy on repatriation. That policy authorized the Institution to return named individuals to their identifiable descendants. In the 1980s, the policy was expanded to allow for repatriation of human remains and associated funerary objects “that could be culturally linked to extant Native American groups, going well beyond descendants of named individuals” (Ortner 1994:12). Those efforts culminated in the passage of the National Museum of the American Indian Act of 1989, which continues to govern the Smithsonian’s repatriation obligations and played a significant role in paving the way for NAGPRA’s enactment one year later. The separate governance of the Smithsonian’s repatriation activities under the NMAIA, however, has been the subject of some criticism, in part due to the lack of a requirement to report its activities to Congress (GAO Report 2011:27) and the lack of an appeals process for the Institution’s decisions about cultural affiliation (GAO Report 2011:29).
NAGPRA’s passage was also preceded by intensive efforts to explore and understand the balance of interests at stake in handling Native American human remains and objects. In 1988, the Senate Select Committee on Indian Affairs conducted a hearing on possible legislation to establish a repatriation process for human remains. Action was postponed in acquiescence to several witness requests that museums and Native American communities first have the opportunity to discuss the subject (House Report 1989:13). In 1989, the Heard Museum in Phoenix, Arizona, hosted a year-long dialogue on museum–Native American relationships. The resulting report, issued on February 28, 1990, still failed to take decisive action on resolving the fate of human remains in collections, reflecting that these issues were far from resolved when the law was enacted. Nonetheless, the report expressly acknowledged the legitimate interests of all stakeholders and called for legislation respecting Native American human rights while also valuing scientific study and education (House Report 1989:14):
The panel recommended that all resolutions be governed by respect for the human rights of Native Americans and the value of scientific study and education. The majority believed that “Respect for Native human rights is the paramount principle that should govern resolution of the issue when a claim is made . . . ” The Panel was split on what to do about human remains which are not culturally identifiable. Some maintained that a system should be developed for repatriation while others believed that the scientific and educational needs should predominate. The report strongly supported dialogue between museums and Indian tribes during all aspects of both the acquisition of sensitive materials, and repatriation requests. The Panel concluded that Federal legislation on this matter was needed; the panel itself was unable to reach consensus on how to address this challenging issue.
Despite the urging of the 1989 Heard Museum panel in its call for federal legislation, Congress did not establish a process in the statute for addressing culturally unidentifiable remains. Instead, it delegated to the NAGPRA Review Committee the responsibility for “compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for such remains” (NAGPRA Section 8(c)(5)). It took twenty years for regulations to be adopted relating to the disposition of culturally unidentifiable human remains (NAGPRA Regulations 10.11) and the resulting regulations, effective as of May 14, 2010, were hotly debated and challenged in various ways by various stakeholders, as parties argued for the prompt burial of all curated remains while others advocated ongoing research, some of whom wanted to pursue cultural affiliation ties and others of whom wanted to continue pursuing other research goals. It has been argued that “the new rule effectively undermines NAGPRA’s core principles. By treating culturally unaffiliated remains as one monolithic category, the new rule discounts Native American rights, mistreats remains, and disenfranchises Native American groups from controlling their own cultural identities” (Birkhold 2011:2048). Other perspectives see the designation of remains as “unidentifiable” as a way for institutions to justify holding onto their collections (see Gould this volume).
Amid strong opinions and protracted debates, many stakeholders in the tribal, museum, and scientific communities did work diligently to achieve legislation that, even if not perfect, would be acceptable to a broad spectrum of stakeholders. It is a complicated matter to develop broadly acceptable protocols and processes for accessing, controlling, and managing interests in important cultural objects such as those subject to NAGPRA, particularly when parties hold radically different and often conflicting worldviews about such matters. Earlier legislation did little to encourage substantive negotiation over the control and ownership of cultural objects. With the advent of NAGPRA, the negotiating table was set, and, like it or not, the parties were required to sit together and work through the delineated process. Many have found the process to be complicated, time-consuming, financially draining, and conceptually challenging. Although NAGPRA’s passage was applauded by many as a historic step forward in redressing wrongs inflicted on Indigenous peoples of the US, the law has also been challenged as a mandated process rife with financial, administrative, and cultural difficulties, with the hardships largely falling upon Native peoples.
As repatriation efforts have unfolded, Native American participants have been starkly “reminded of the nature of our existence within the American political landscape … A Native American person who wishes to work in repatriation frequently walks a tightrope between what she believes to be true and what she can demonstrate archaeologically” (Lippert 2008: 120–121; Gould this volume). Tensions created by the dissonance between knowledge systems and processes is an undeniable aspect of the important work of repatriation, particularly for Native American scholars who seek to co-exist amid clashing worldviews about involvement with, and investigation of, Indigenous culture as well as the place of history within legislative intentions.
The historical realities leading to NAGPRA’s enactment have very deep roots, reaching back to the earliest days of contact between Indigenous peoples and Europeans. It is impossible to ignore those realities, colonial violence, and cultural wounds suffered over the course of close to 500 years of interaction. Exacerbating the situation are inconsistencies and conflicting values reflected in laws and policies as developed and amended over time. NAGPRA re-opened this past in explicit ways, and some argue that it is a necessary part of the healing process. Its requirements that tribes demonstrate the importance of objects according to legal definitions and provide evidence that they can “reasonably” trace identity connections create tensions that fold into the complex process of repatriation. This is because what might be culturally important does not necessarily correspond to the categorical terms as articulated in legislative definitions. Standards established and justified under Western legal and scientific viewpoints as the a priori point of departure can produce immense burdens for tribes seeking to satisfy those standards in order to recover their ancestors and sacred objects.
Despite the many challenges involved in assessing cultural affiliation, museums, universities, and tribes across the country continue to explore innovative and diverse ways of managing and caring for culturally sensitive objects. For example, the Smithsonian Institution’s National Museum of Natural History has developed a “Traditional Care Policy Statement” to assist tribes and curators in developing appropriate procedures for storing and treating sensitive items that remain curated at the museum (NMNH 2005).
There are several examples of museums working with Indigenous groups to build ongoing relationships stemming from their initial interactions under NAGPRA and working together to rethink the role of the museum as a place where Indigenous voices and perspectives can be experienced. Emily Moore, in her article “Propatriation: Possibilities for Art after NAGPRA,” highlights Harvard’s Peabody Museum, which, for close to a century, had displayed a Tlingit totem pole that had been taken from a village in 1899. After the Peabody returned the totem pole pursuant to a claim under NAGPRA, Tlingit peoples gave the museum a cedar log to enable it to commission a new pole to be carved by a Tlingit master carver, Nathan Jackson. Tlingit members dedicated the new pole at a commemorative event held at the museum in 2001 (Moore 2010). In recent years, the American Museum of Natural History has collaborated with various tribes in an effort to enable them to reconnect with objects and to include tribal perspectives in the development of related curation and exhibition policies (Graham and Murphy 2010).
Legal definitions and mandated consultations, while created in a good faith effort to pursue laudable goals, often fall far short of enabling Native American stakeholders to truly resolve concerns about the appropriate disposition of important cultural items. Continuing debates over whether human remains are Native American, whether objects are sacred or of shared group significance, and whether tribes share identities with earlier groups all emphasize the inherent difficulties involved in efforts to reach agreement about such matters. However, these debates can find new points of clarification when efforts towards better understanding continue, as the more recent scholarship affirming the Native American origin of the Kennewick Man has revealed (see Meltzer 2015).
During in-depth discussions with cultural resource advisors from Acoma, Hopi, and Zuni Pueblos as part of my dissertation research (Benton Bruning 2013), Pueblo representatives discussed their experiences with and perspectives about NAGPRA. These discussions further developed conversations begun during an earlier multi-year collaborative project involving potential connections of these communities to a site known as Chaves-Hummingbird Pueblo in the Rio Puerco Valley of central New Mexico (Adler and Benton Bruning 2007), where NAGPRA concepts informed the dialog about cultural affiliation.
In our discussions, the most pressing NAGPRA issues identified by the advisors were the power of definitions, institutional inconsistencies in carrying out NAGPRA’s processes, resource limitations, unexpected complications, and emotional impacts on tribal representatives involved in carrying out NAGPRA on behalf of their communities. The balance of this chapter addresses these perspectives.
Any single description of what makes an object sacred, given the multitude of belief systems and practices, will fail to include many objects considered sacred by many tribal peoples. Determining whether an object should be recognized as sacred within the meaning of the law is a difficult process. NAGPRA’s definition sets limits on what will be recognized as sacred for repatriation purposes, but this does not necessarily conform to the views of tribal members who are responsible for caring for objects of spiritual importance. The legal definition only includes ceremonial objects that are currently needed by traditional religious leaders to carry out their religious practices. This definition thus excludes objects that are not created for ceremonial use and objects that once may have been used ceremonially but are no longer needed in that capacity, whether or not they continue to have ongoing sacredness to the community from which they derive.
The definition of “cultural patrimony” also creates concern and confusion, with its presumption that objects considered to be culturally significant at a group level must, therefore, be group “owned” rather than the property of an individual. The concept of private property in US law, which presumes that the individual owner has the unrestricted right to dispose of an object, does not necessarily correlate with tribal understandings of ownership and stewardship of culturally important objects.
Octavius Seowtewa, a cultural resources expert from Zuni Pueblo, illustrated the challenge of conveying the sometimes-complex nature of a tribe’s relationship with a cultural item, which transcends mere questions of property ownership:
There is a kilt in the Brooklyn Museum. It stated that, “the individual dancer came up to me and gave me this kilt after the performance show.” This is not true. The right information is that the item is a sacred object used in a ceremony; it belongs to an individual but it can be borrowed from a family member or another kiva group to be used in a ceremony. It is an item of cultural patrimony, right? It belongs to an individual but it can be used by a group as a whole. That’s where cultural patrimony needs to be re-defined. Because this one little example would make it harder for the legal experts to really define true ownership. I do own something, but my nephews can come in and borrow it. Or some people that I don’t even know; if they know that I have something they can use for dances, they can come in and borrow it. . . .There are different avenues to cultural patrimony.
(Benton Bruning 2013:228)
The definition of “cultural affiliation” is broadly worded and can include many ways of describing how groups share a traceable identity through time and space. The scope of inclusion – for instance which groups are related to other groups – can be the subject of much debate when parties involved disagree and seek to sway others to agree with their particular interpretation. Mr. Seowtewa reflected on the struggles to interpret defined terms in the law:
If the definitions of things were simplified, it would make it a lot easier for ordinary people, especially the traditional leaders. We didn’t have the luxury of going to law school; we don’t understand the “whereas” and all that. If it were simplified with regular language that traditional leaders could understand, it would be beneficial. With NAGPRA, every year it seems like it’s getting harder to read, because the intent has been manipulated to suit individuals. It’s not – the way I look at it, it’s not helping the tribes’ dealings with federal agencies. It’s getting to be a lot harder, just trying to identify items of cultural patrimony, sacred items, cultural affiliation. All these have to be dealt with just for one little item. If the wording is not right and if it is something that we hold dear or sacred to us, we can’t get it back, because we didn’t know how to apply it. They’re trying to get more information about why we hold it sacred.
(Benton Bruning 2013:230)
It can be daunting for tribal representatives to effectively discuss important cultural matters within the confines of mandated NAGPRA definitions. Tribes have their own understandings about their historical relatedness to other tribes. This manifests in cultural details such as ceremonial practices but also manifests in temporal details connecting people to places over time. It is a matter of time as well as place; an assessment of aboriginal land occupancy for the purposes of assessing cultural affiliation should always include an analysis of which tribal group(s) arrived at a place and departed from a place at which time(s). However, NAGPRA processes often focus on geographical connections without sufficient regard to the timeframes during which various groups engaged with a particular area. Thus, there is a concern that all groups who interacted within a geographical location may be treated as sharing cultural affiliation with cultural items found at that place, regardless of when a particular group may have arrived or departed. This concern arose notably during multi-tribal consultations about affiliation with Chaco Canyon in New Mexico, which is an immensely important cultural site for many Indigenous groups in the American Southwest.15
The customized approaches developed by different institutions to carry out their repatriation responsibilities create difficulties for tribes seeking to work effectively to carry out their overarching goals. Each consultation process is unique and can raise new challenges. Issues discussed and resolved with one institution must be addressed from the beginning again when the conversation moves to another institution. It can take extensive time, effort, and resources to work on a tribe-by-tribe basis to examine and discuss cultural items. However, trying to shortcut that process can do a great disservice to individual tribes who may wish to analyze and discuss their views with the institution privately, rather than, for example, being asked to participate in group meetings in an effort to expedite the process, as happened in the Chaco Canyon affiliation process. Collections vary in scale, scope, and complexity. Consequently, the consultation process may vary as well, with different collections requiring different levels of engagement between tribal and institutional representatives.
Tribal representatives thus must navigate the complexities of each institution’s customized approach to analyzing cultural items and assessing potential cultural affiliation. Because NAGPRA empowers institutions, not tribes, to make the initial determinations about cultural affiliation, the justifications for these determinations will vary from institution to institution. This process places tribes in a challenging position of having to respond to the methodologies and conclusions of others, rather than establishing their own bases for consultation and cultural affiliation determinations.
All parties involved with NAGPRA have had to learn how to consult with each other effectively. Over time, many institutions have honed their approaches and customized the ways that they work with individual tribes. The time and effort it takes to do effective inventories and consultations are also considerable. The complex realities of establishing and carrying out processes for returning objects to tribes became apparent as institutions and tribes began the actual process of researching and documenting collections, developing appropriate and effective means of communicating with each other, and learning about ways in which objects are valued in different contexts.
Pressure to complete the NAGPRA process heated up as the National NAGPRA Office began acting on the penalties provision of NAGPRA and assessing civil penalties against museums found to have failed to comply with their consultation and inventory obligations. The impact on tribes of the threat of penalties against museums has been two-fold: it can be beneficial to press institutions to carry out their responsibilities without undue delay, while it can be detrimental if museums rush through the process for the sake of completion (and avoidance of civil penalties), rather than continuing efforts to work with tribes in a thorough manner that respects the timing needs of tribal representatives and leaders as they find the best ways of addressing repatriation within their communities.
For many tribes, the reburial of human remains stands apart from other aspects of repatriation. Attempts to resolve all aspects of repatriation during a single phase of consultation have led to consternation among tribal consultants, who often focused on reburial as the most pressing matter to deal with. Discussions about whether objects qualified as sacred or cultural patrimony, while of high importance to tribes, often were delayed while tribal representatives focused their available time, energy, and resources on efforts to secure reburial of ancestors. The unique bundle of emotional, cultural, and political concerns involved in tribal efforts to deal with the concept and realities of curated human remains requires its own time and space for resolution and healing; NAGPRA’s processes seem ill-suited to address those needs.
While great efforts have been made and continue to be made to resolve the fates of human remains identified as ancestral to contemporary groups, contentious debates have flared over the concept of “culturally unidentifiable” human remains. Remains have been designated as culturally unidentifiable because of a lack of accepted evidence demonstrating shared group identity with a present-day, federally recognized tribal group. The idea of any human remains being designated as “unidentifiable” suggests that no amount of effort can result in the identification of a cultural group to which such remains are related, despite the reality that the designation might be due to a lack of federal recognition or the inability of tribal representatives to pursue full consultation with all the institutions holding human remains given their limited time and funding for these tasks.
To further complicate matters, the Department of the Interior adopted regulations setting deadlines by which institutions were required to assemble a list of culturally unidentifiable human remains and provide that list to the National NAGPRA Office for inclusion on a public database, which then became subject to new disposition processes established under NAGPRA regulations adopted long after enactment of the original legislation. As a result, human remains that, given more time and effort, might be identified as related to a particular cultural group are at risk of being handled as unidentifiable and removed from the possibility of later tribal affiliation if disposition under the regulatory scheme occurs before there is an opportunity to make such an identification.
Every step in the NAGPRA process takes effort, time, and resources. Tribes, like institutions, must allocate human and financial resources to enable them to participate in each phase of the repatriation process, which involves preparing and reviewing inventories, coordinating and carrying out consultations, traveling to institutions to assess remains and items, and carrying out actual repatriation to the tribes. The National NAGPRA program provides grants to assist with some aspects of repatriation, but the reality of what is needed to participate fully and effectively in the repatriation process is daunting. There has been widespread concern about the lack of resources available to assist parties in carrying out the letter and spirit of the law. During a 2009 congressional hearing on the status of NAGPRA’s implementation, representatives of tribal, institutional, and organizational groups involved in repatriation sent a resounding message to Congress highlighting the disparity between resources and ongoing needs.
Staffing at tribal offices is an ongoing dilemma due to lack of funds. As noted by Octavius Seowtewa, “Some of the paperwork piles up until it comes to a point where ‘It’s too late now’” (Benton Bruning 2013:252). Theresa Pasqual lamented the effect of funding limitations on the Acoma tribe’s ability to engage in NAGPRA’s process: “You want them to be part of the process, but you’re not increasing the funding, so you’re still putting them at a disadvantage and they can’t participate in the process” (Benton Bruning 2013:253). When agreement on repatriation is reached, time and expense is involved to appropriately prepare items for their return, travel with them, and complete repatriation ceremonies. Tribes, museums, and the National NAGPRA Review Committee have all called for more funding to assist with NAGPRA.
As part of now-defunct museum preservation protocols, some cultural objects have been treated with arsenic or other toxic substances while in curation in an effort to preserve and protect them from pest infestation. The handling of contaminated objects and re-introducing them into communities through repatriation has created unanticipated danger for tribal members. The National Park Service has warned that “[t]he potential for pesticide residue remaining on collection objects is very high. Objects with such residues pose a health risk to curatorial staff and to the public. . . . ” (NPS 2001). When speaking about this complication, Leigh Kuwanwisiwma, head of the Hopi Cultural Preservation Office, lamented that the Arizona Poison Control Center once argued that a heavily contaminated Katsina figure should not be brought back to the reservation, creating a conundrum for those charged with the responsibility to care for their people and their objects. “[P]art of the problem is, we don’t know how to dispose of them. To throw it away would be like giving a death penalty to a fellow brother” (Fausset 2002).
Repatriation is, at one level, a legally mandated administrative process by which the possession and control of objects are transferred back into tribal hands. At another level, it is a legal mandate that can potentially disrupt the professional lives of archaeologists and museum professionals by diminishing opportunities for research, curation, and display. At a much deeper level, repatriation is an intensely difficult and emotional experience for individual Native Americans vested by their communities with the responsibility to carry out the process. Historical realities that led to institutional possession, curation, and scientific study of Native American cultural items can be extremely tragic, offensive, and heart wrenching for individuals to come to terms with. NAGPRA requires individuals to confront those realities as they witness the bones and precious objects of their ancestors in museum storage facilities, university basements, or on public display; as they help to find a way to resolve the fates of those persons and objects; and as they work with their communities to try to heal from the impacts of repatriation.
Individual and collective responsibilities to care for cultural items and places permeate Puebloan societies. Migration routes, ancestral burial sites, sacred objects – these foci of custodianship responsibilities arise within and well beyond questions about repatriation. Individuals within Puebloan communities may be vested with responsibility to protect sites, to care for and properly use cultural objects, and to try to recover the remains of their ancestors and cultural items that were removed from their communities over time. The emotional impact of bearing these responsibilities can be high. As parties carry out their administrative activities during the repatriation process, those outside the tribal communities may not be aware of the ongoing emotional impact that these obligations may have on individuals charged with their care and protection.
Behind the veils of legal language and administrative process lie many complicated, disturbing, and vitally important revelations, decisions, and actions. The process of dealing with human remains has clearly been the most emotionally difficult for tribal representatives, but funerary objects, sacred objects, and objects of cultural patrimony each carry the weight of history, loss, and (sometimes) recovery. Tribal leaders carrying out repatriation obligations carry a heavy burden. Theresa Pasqual shared personal reflections on the toll that repatriation can take:
Because of the cultural parameters that exist around NAGPRA remains, it’s like there’s not an outlet for some of the most, even the most harsh NAGPRA projects that we’ve come into. We have one right now on the books that we haven’t tackled, and we’re just beginning discussion. But it’s . . . just heads. It’s just heads. For me, personally, to watch these cultural leaders, these men, how do they deal with that emotionally? How do they . . . Because, even if it’s unspoken, it’s that history, you’re constantly reliving it. I also find myself, even in my role, knowing how challenging those things can be, almost in a way that a woman does, from a motherly approach, to try and protect them from that emotional burden as much as possible. Because it’s not like these men go home and talk about all the things that they’ve encountered, and it takes a toll. But, this one in particular, that’s probably why it hasn’t moved in the way that we would like it to, because it’s a tough one. It’s just heads. That’s all it is. And to know they were being used for scientific research. And that, in all likelihood, there will probably never be a point where you will find the rest of the body. How do you explain that?
(Benton Bruning 2013:257)
Well beyond the legal confines of NAGPRA, Native communities continue to deal with the heavy impacts on their people and culture from the losses – and the returns – of their disinterred ancestors and dispossessed cultural objects. The concept of cultural property, embodying a paradoxical combination of possession and identity, reflects the complexities inherent in NAGPRA. The worldviews of Wilton Kooyahoema and George Gustave Heye, as reflected in their statements at the opening of this chapter, may be irreconcilable. However, there is growing recognition within the United States and throughout the international community that the historical disrespect and injustices suffered by Indigenous peoples should no longer be tolerated. As stated in the United Nations’ Declaration on the Rights of Indigenous Peoples, there is an “urgent need to respect and promote the inherent rights of Indigenous peoples.” As part of that growing recognition, efforts to address cultural property concerns should focus more deeply and meaningfully on aspects of culture understandings and caretaking obligations emanating from the communities of origin themselves.
A long and tumultuous history of colonization in the United States led to pervasive dispossession of Indigenous ancestors and cultural objects. NAGPRA endeavors to address some of these wrongs and shift possession and control back to the communities of origin. It is not, however, a panacea for the damage that has been wrought upon those communities. In implementation, NAGPRA has proven to be riddled with challenges that are being tackled with varying levels of success through the painstaking efforts of many involved in the processes. Even when the administrative aspects of repatriation are completed, the weight and responsibilities of the experience linger on. A paradox of cultural property lies in the disparate notions of dynamic culture and static property interests. NAGPRA provides yet another paradox: the offer of repossession set against yet another suite of mandates requiring Indigenous communities to satisfy the expectations of outsiders in order to bring ancestors and culturally potent items home again.
1 Wilton Kooyahoema is a member of the Hopi tribe, located in Arizona, US.
2 George Gustav Heye was an avid private collector who, through his foundation, established the initial collections of the Smithsonian Institution and served as Director of the Museum of the American Indian. See http://nmai.si.edu/explore/collections/history/.
3 See the report by UN Special Rapporteur, Mr. José Martinez, “Study of the Problem of Discrimination Against Indigenous Populations,” 1981–1983: https://www.un.org/development/desa/Indigenouspeoples/publications/martinez-cobo-study.html (accessed 27 March 2017).
4 For varying perspectives on the status of the Parthenon Marbles, see Hitchens 1997 and Merryman 1985.
5 For a sampling of thoughtful scholarship on the subject, see Dongoske 2000; Dongoske et al. 1997; Duff et al. 2008; Echo-Hawk 1997; Fine-Dare 2002; Goldstein and Kintigh 2000; Thomas 2000; Lippert 1997; Lovis et al. 2004; Owsley and Jantz 2001; Pyburn 2003; Swidler et al. 1997; Trope and Echo-Hawk 2000; Tsosie 1997; Whiteley 2002.
6 See Smith and Wobst (eds.) 2005.
7 See, for example, Brown 2003; Dongoske et al. 2000; Evers and Toelken 2001; Fine-Dare 2002; Fluehr-Lobban 2003; Mihesuah 2000; Richman and Forsyth 2004; Swidler et al. 1997; Watkins 2000; Zimmerman et al. 2003.
8 See NAGPRA Section 7(a)4.
9 See media reports of the sales: http://www.reuters.com/article/us-france-auction-masks-idUSKBN0OR1DG20150611 (accessed 27 March 2017).
10 See Bruning 2006 and Thomas 2000 for discussions of the case and its implications.
11 US House of Representatives House Report 5237, Version 1, Section 7e (1990).
12 NAGPRA Section 8f.
13 See US v. Corrow, 119 F.2d 796 (10th Cir. 1997), confirming the criminal conviction of a non-Indian artifact trader for attempting to sell items qualifying as Navajo cultural patrimony in violation of NAGPRA. One issue was whether the items, Navajo Yei B’Chei, were individually owned by the family of the haatali (religious singer) who used them during life and were therefore transferable to Corrow by his widow, or whether they were communally owned by the tribe such that they would fall under NAGPRA. Navajo witnesses differed in their perspectives about the ownership or custodianship status of the items.
14 See NAGPRA Section 7(e).
15 The dispute over group consultations involving cultural affiliation with Chaco Canyon is discussed in the minutes of the NAGPRA Review Committee Meeting held May 3–5, 1999. http://www.nps.gov/nagpra/REVIEW/meetings/RMS017.PDF (accessed 27 March 2017).
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