NAGPRA (1990): Tribal Legacy Testimonials
A sign hung by the tree-sitters protesting the removal of trees by the University of California, Berkeley in preparation for a new athletic center, 2008.
(photo credit: Wikimedia, Noncommercial Reuse)
by Stephanie Wood, University of Oregon, Honoring Tribal Legacies
The Native American Graves Protection and Repatriation Act (NAGPRA) is a federal law that was passed in 1990 with the intention of protecting and helping to return Native American human remains (of any type) and cultural items (including funerary objects, sacred objects that could still be used in a religious ceremony, and objects of cultural patrimony of importance to tribes rather than individuals). Such human remains and cultural items have often been discovered—and alienated—during construction projects and archaeological digs. The legislation was meant to help preserve such things, put a stop to their collection by non-Natives, and to support their return to tribes whenever possible.
The law has many provisions intended to protect and support multiple parties in cases that will arise. Human remains and cultural items are often found in museums today, and the law asks that a tribe show evidence of a relationship to the museum objects before they might have them returned. The nature of such evidence might include a geographical association, a kinship tie (including biological evidence, such as DNA), a linguistic connection, compelling stories from oral traditions, historical documents, archaeological reports, or anthropological studies. All museums that receive federal funding must comply with requests for the return of materials once the presiding Secretary of the Interior’s Review Committee comes to a decision about the weight of the evidence. Materials found or extracted from federal lands are also subject to the NAGPRA. Non-compliance with the Review Committee’s finding can lead to serious penalties.
It is also significant that the law requires museums with federal funding to make inventories of their Native American materials. They must share this information upon request from a tribe. Then the tribe can assemble evidence for their case and request the “repatriation” of human remains or other cultural items recognized by the law.
Items that are not covered by this law include things that cannot be proven to have had a burial, funerary, religious, or cultural-patrimonial context in their culture of origin. Nevertheless, the law asks that such items, if not returned, still be treated with care and according to established guidelines. Cultural heritage materials that fall outside the purview of NAGPRA might include ceramic pieces or arrowheads when, for example, they are separate from a burial context or where the tribe that produced them cannot be identified.
Studies of a Clovis burial found near Wilsall, Montana, in 1968 took place in an era prior to NAGPRA. During a dig on private property in that year, a construction worker found the remains of a male baby, 1 to 2-years-old, and over 100 stone tools covered with red ochre buried with him some 12,600 years ago. A man named Larry A. Lahren, who wrote about this case for the Last Best News, published on March 30, 2014, had the job of ensuring that the burial was treated with respect, but at that time, awareness of a proper tribal role in the fate of the site was limited. A professor from Copenhagen, Denmark, was allowed to conduct DNA studies on the baby’s remains without getting permission from any tribes in Montana. The child was found to have a biological connection to tribes both local and across the hemisphere. Eventually, with the help of Shane Doyle (Apsáalooke), the baby’s remains were given back to the tribe for reburial in 2014.
Related laws of significance in increasing the level of respect for Native American heritage, something like NAGPRA, are: the American Indian Religious Freedom Act (AIRFA, 1978), and the Executive Order 13007 (1996) on sacred site protection. Prior to 1978, believe it or not, many Native American religious beliefs and practices were not legal. Federal authorities leaned on a “Code of Indian Offenses,” enacted in 1883, that they used to punish Native communities for spiritual activities, such as holding feasts or performing dances. Because indigenous religious activities were misunderstood by outside observers, those observers often became fearful that a dance, for instance, portended a violent uprising; this played into the tragedy at Wounded Knee in 1890. While that code of 1883 was revised 50 years later, no law on the books officially protected Native religions until 1978. Furthermore, the existence of this law helped provide a foundation for NAGPRA, which includes stipulations about the return of objects necessary to communities for the practice of their own religions. Strengthening NAGPRA, Executive Order 13007, signed by President Clinton in 1996, has two major stipulations: “(1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites.” States have also passed some of their own legislation, such as Montana’s Repatriation (Reburial) Act that was introduced into the Montana Legislature in 2001.
For this exercise, we have captured some testimonials from tribal people who were familiar with NAGPRA and who participated in the Tent of Many Voices during the Lewis and Clark Bicentennial commemoration (not a celebration). We are providing links to the videos and we are sharing the transcripts of what was said for those who would prefer to use the testimonials in written form. Both the videos and the transcripts are published on the Tribal Legacy website. A keyword search for NAGPRA will turn up additional testimonials.
Sample “entry questions”:
In the first testimonial, by Lindi Trolan (Grand Ronde), who provides a very accessible introduction to the law. In this description, what type of action could bring prosecution at the level of a felony?
In the second testimonial, Valorie Sheker (Callapooya) mentions how tribes have been critiqued as “so aggressive when it comes to our burial sites.” How does she refute that critique?
In Ms. Sheker’s second paragraph, we learn about how tribes in the Northwest have banded together to communicate with the U.S. Army. Why would they be writing to the Army about a NAGPRA issue? What were their concerns? Did they get the response they sought?
In the third testimonial, Rex Buck Jr. (Wanapum) expresses some of the frustration he felt in dealing with the case of the Kennewick Man (see the Glossary, below). What was it that the courts wanted from the tribes that were difficult to deliver?
Sample “essential questions”:
When Lindi Trolan (Grand Ronde) says the law does not allow Native communities to go to museums and “ask for everything back.” Should they be able to do that? Why or why not?
What kind of deeper understanding of NAGPRA did Ms. Sheker (Callapooya) gain from her involvement in the issue of the old Catholic cemetery on Army property where potentially people from 36 different tribes could be buried?
What major obstacles does Mr. Buck’s (Wanapum) testimonial bring to light about the way NAGPRA is sometimes carried out, especially with regard to assembling evidence? How might that law be revised to make it fairer?
What are the ethical implications of studying human remains, taking them out of context, and storing them out of the custody of the cultures from which they came?
Sample “big ideas”:
Ask students if they can imagine how NAGPRA could be extended or what additional, new laws could be designed to further help ensure respect for Native American cultural heritage materials (of all kinds, not just those stipulated in NAGPRA).
Ask students to imagine that tribes had their own authority and did not need the blessing of laws from the U.S. government to “help” them regulate decisions about their cultures’ burial materials and other objects. How might that work?
Sample “enduring understandings”:
As we learn from the multiple voices and perspectives in the opening of the government video about NAGPRA published on YouTube, NAGPRA is about human and civil rights, it is about relationships and process, and it is about lingering colonial restraints on indigenous freedoms.
The Circle of Tribal Advisors from the Lewis and Clark Bicentennial state: “Our ancestors’ places of rest are in our homelands, not in museum vaults. American Indian religions are entitled to the same Constitutional protections guaranteed to all. Our archaeological sites, sacred sites and objects, and burial sites are monuments, and like monuments of other great nations they deserve respect.”
Upon the fortieth anniversary of the American Indian Religious Freedom Act of 1978, Kenny Frost, Ute Sundance Chief, spoke of his disappointment about the restrictions that we might see as lingering colonialism: “Native people today still cannot go to their sacred places on federal lands. More needs to be done in the education of federal agencies.” And Casey Camp-Horinek of the Ponca Scalp Dance Society expressed disdain for the fact that the federal government felt it could legislate freedom that ought to be automatic: “Are we free to care for our own Eagle feathers without a permit from the U.S. government? No.” The “written words” of the government of a non-Native nation should not take precedence over indigenous communities’ rights to “live freely within the Natural Laws and honor our one true Mother, the Earth,” he added.
Respect for ancestors and their remains is a universal phenomenon across cultures. It should not be a difficult concept to appreciate, and yet obstacles remain. Archaeologists have a passion for digging into the past (literally) in order to learn more about the human condition and museums have a passion for displaying cultural “artifacts,” but various laws now guide their practices toward ones more respectful of indigenous community rights, even if challenges continue to plague the process. One enduring understanding is that NAGPRA cases, which have involved some victories, nevertheless reveal the limits of freedoms enjoyed by Indian nations in the face of lingering internal colonialism.
Few cross-sections of territories are as sensitive and important to communities as burial grounds, regardless of culture or location. But for Native communities, the place becomes specific and deeply related to origins and ongoing identities. Because of treaty violations, many indigenous territories have fallen into federal hands or been sold to private, non-tribal individuals. It has not been unusual that excavations for construction or for archaeology have involved the discovery of ancestral remains in such places. When such finds are sent off to far away museums, the return of those remains to their homeland becomes essential to tribes. Thus Ms. Sheker’s testimonial is full of references to the “site,” “spot,” and “place” where the missionaries’ cemetery might have been sited on top of a pre-contact burial ground, one that was being disturbed by the Army. She worked to ensure that all 36 tribes with potential connections to that place would have a say in any further excavations.
This is reminiscent of the case of the remains of The Ancient One (aka Kennewick Man, see the Glossary), whose remains were found in the Columbia River. In the reburial of his remains, it became absolutely essential that they are returned to the tribes who might share his heritage, which meant on both sides of the Columbia River and involved five different tribes.
In another example, where children’s remains were exhumed from a burial at Carlisle School (see the Glossary), there were tombstones that were supposed to be an aid for identifying the children’s origins. Three were believed to be from the Northern Arapaho, in Wyoming, but only two were confirmed to have the right DNA and the third one was never located, as painful as that was for the tribe. Other tribes also became concerned that the remains of some of their relatives were being disturbed in the process.
A journey of healing:
The law of 1990 brought a new level of respect from federal authorities for the care of human remains and cultural items that were, for centuries, in museum showcases or locked away in museum warehouses, without the care they deserved and without any rightful access for the descendants of their original owners. It is not a perfect law, and it requires a great deal of knowledge and a level of commitment to invoke it successfully, but it does allow for potential returns of material and ancestral remains to their original communities. So, for example, healing has begun with the return of the remains of The Ancient One to the tribes along the Columbia River who embrace him as an ancestor. Through experience with cases, Native elders are gaining knowledge and strengthening their convictions about how to move forward toward a more just future.
Carlisle Indian Industrial School: This was a boarding school in Pennsylvania where Native children from all over the country were taken and “educated” in Euro-American ways (i.e. assimilated). Their hair was cut, they were made to wear military uniforms, their names were changed, and they were not allowed to speak their own languages or practice their own religious traditions. In 1918, after hundreds of students had died from disease and harsh conditions, the school was closed down. Two of the children in the cemetery whose remains were sought by a Northern Arapaho delegation, Little Chief (aged 15 at death) and Horse (aged 14), proved to be a genetic match, and they were reburied on the Wind River Reservation in Wyoming. Another child’s remains, those of Little Plume, who had also been identified as Northern Arapaho on his tombstone, turned out not to be a match; instead, the remains of two other people were in his grave.
DNA: Jessica Bardill (Cherokee) has written a study about genetic information, or DNA, as it might relate to tribal enrollment. DNA comes from studying samples acquired from individuals or their remains, such as a swab from inside the cheek, spit, blood, or a piece of hair. While it is not 100% conclusive, test results suggest the probability of a match, such as a finding of 99.5% likely. Showing relationships between parents and children will result in a high probability; distant relationships over many generations, become less certain. Keeping DNA profiles in databases helps lower uncertainty, as multiple indicators or partial matches are more easily located. Regarding DNA testing on Native Americans, Bardill writes: “using DNA testing may limit the understanding of tribal identity to only a biological understanding if it is not supplemented with other tools or methods of determining the tribal identity (or enrollment eligibility). Further, there are concerns that DNA testing within families and communities could reveal information about parents and lineage that contradicts other claims or family stories. Some indigenous communities have been reluctant to provide DNA to scientists hired by federal authorities, given the reasonable concern that such “evidence” could be assembled and used to undermine their civil rights, which have already been all-too-greatly disregarded for a long time.
Kennewick Man: Nearly 9,000-year-old human remains were found by accident in 1996 along the Columbia River in Kennewick, Washington, during hydroplane races on the river. The skull was spotted first, underwater and about ten feet from shore. The skull and the partial skeleton, located soon after, were of a male, aged 40 to 55, about 5’8″ tall, whose burial had become eroded, exposing the bones. He was called Kennewick Man by those who discovered and first studied him, but the tribes call him The Ancient One. Tribes of the region wished to have the remains turned over to them, but they met resistance and had to sue, invoking NAGPRA law. This dragged on for years. Early DNA tests were inconclusive, but DNA tests from 2013 clarified that he was definitely Native American and related (at least) to the Confederated Tribes of the Colville Reservation. Other potential tribal affiliations were not proven with further testing, but a decision was made in 2016 to turn over the remains to a coalition of Colville, Yakama, Nez Perce, Umatilla, and Wanapum tribes. The Burke Museum at the University of Washington had provided care for the remains of this ancestor from 1998 until 2017 when the delivery was made to the tribes. The remains were buried according to tribal traditions.
Repatriation: This term can refer to the return of war refugees, prisoners of war, and the like. It can refer to the return of artworks that were stolen and taken to another country. But it also refers to the lawful return of human remains and cultural items to tribes invoking the NAGPRA law.
Agenten, Courtney L., Crystal B. Alegria, and Shane Doyle, “Investigating the First Peoples, the Clovis Child Burial” (Helena, MT: Montana Office of Public Instruction Indian Education Division and Project Archaeology, 2014), a curriculum guide for middle and high school students.
“Army Begins Unearthing Remains of Children Killed at Carlisle Indian School,” Aug. 8, 2018. https://www.philly.com/philly/news/army-begins-unearthing-remains-of-children-killed-at-carlisle-indian-school-20170808.html
“Army: Exhumed Remains Don’t Match 19th Century Indian Child,” The Sentinel, Associated Press, Aug. 11, 2017.
Bieder, Robert E., “A Brief Historical Survey of the Expropriation of American Indian Remains,” Native American Rights Fund, 1990.
Burke Museum, “Kennewick Man, The Ancient One,” Feb. 20, 2017.
City Club of Portland [Oregon], “Securing Native American Religious Freedom: The Need for Federal Law Reform,” YouTube video, 50′ 16″.
Lahren, Larry A., “What Do We Owe the Clovis Child?” Last Best News, March 30, 2014.
National Native American Boarding School Coalition, “Carlisle Repatriation“ (2018).
Native American Graves Protection and Repatriation Act (NAGPRA)
Reproduced from Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London, 2000. Francis P. McManamon. https://www.nps.gov/archeology/tools/laws/nagpra.htm
Zotigh, Dennis, “Native Perspectives on the 40th Anniversary of the American Indian Religious Freedom Act,” Smithsonian.com, Nov. 30, 2018.
(photo credit: National Park Service, archaeologist Ted Kidder holding potsherd at Pecos)