A New Repatriation Regulation, One Year Later

Just over a year ago, the US Department of the Interior implemented a new rule to guide the return of Native American human remains from museums that could not be culturally affiliated with a modern day tribe. This new regulation, a part of the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, created deep tensions between Native Americans and museums and their allies. Many archaeologists complained that the regulations threatened science, while many Native Americans argued that the regulations still did not go far enough to recognize their human rights.

In one New York Times op-ed, the archaeologist Robert B. Kelly decried the new rule. He claimed that the regulations will "destroy a crucial source of knowledge about North American history and halt a dialogue between scientists and Indian tribes that has been harmonious and enlightening."

I very much respect Dr. Kelly, but I think that he was wrong in his analysis of the new regulations (see my NYT letter, and my own op-ed). In my opinion, the new rule is far from perfect, but it does provide a reasonable legal basis to address the remains of 116,000 Native Americans left on museum shelves as "unaffiliated." Since NAGPRA became law, over the last two decades, museum officials have only affiliated a little more than 25% of the Native American remains in collections.

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Contrary to the claims of many archaeologists, NAGPRA is not fundamentally a "balance" between scientific and Native interests; it is about a process that provides the opportunity for the return of remains and cultural items to American Indians. When the law was passed, the US Congress did not intend for nearly three-fourths of human remains to be left on museum shelves for scientific study. If this was Congress' intent, then they would have never held in reserve a section for unaffiliated remains at all. If it was Congress' intent to make NAGPRA cultural resource law, to be of benefit for archaeology, then it would have placed NAGPRA in US Code title 16, not US title Code 25, which makes NAGPRA "Indian law"; and, Indian law requires that such statues "be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."

The regulations most basically codify the process that many museums have already used for unaffiliated remains since 1994. They also reflect nearly the identical logic of the law's section for inadvertent discoveries (43 CFR 10.6) which outline the priority of custody of remains (and notably, archaeologists have managed to live with this section for 20 years with little to no complaint).

Here we are a year after the regulation became law and only several museums have actually even begun the process of applying it. Those who feared that the new regulations would empty museums were simply wrong: just as NAGPRA did not lead to the vast draining of museum collections in 1990, the new rule hardly impacted scientific research in 2010. The sky has yet to fall.

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Several weeks ago the DMNS returned the remains of 27 Native American individuals, unaffiliated. Because the remains are unaffiliated, we know very little about them. We don't know when they were collected, where exactly they came from, if they were found with grave goods, or how they were buried. I helped pack most of these skeletons, and nearly all of them were mere fragments of people and broken bones. A left arm, a jaw, a piece of a finger. Many of the remains were children. One skeleton was recent enough that it still had leather clothing scraps around the bone. Many of these skeletal fragments were donated to the museum decades ago; yet, only a single individual was scientifically studied, the only publication from this collection of human beings, a six page description of the remains in a minor journal published in 1976.

As I was packing these remains, I couldn't help but reflect on how utterly purposeless the collection of these remains has been. After many decades, these remains have never really served science and even if we kept them forever I couldn't guess what science would ever want with the finger bone of an Indian child taken from an unknown time and uncertain place.

Yet, we know that by keeping hold of these remains, we continue to perpetuate an injustice, the taking of these remains for no end, and that by keeping them we harm the cultural life and spiritual beliefs of many Native Americans. Perhaps it is a lack of scientific imagination on my part but on that day I could not think of a single good reason for the museum to keep them.

The emotions are hard to describe, but I felt satisfaction knowing that we had spent three years consulting with more than 80 tribes on these unaffiliated remains. We consulted with every federally recognized tribe that could conceivably be related to these remains, based on the rough geographic information the museum held about the remains. And all of tribes agreed to have these remains returned to one tribe, which would take the lead on returning these people back to the earth.

Perhaps I'll be proven wrong in the long term, but at least in the short term, the new regulations have proven to not be the draconian measure that so many archaeologists feared. And already, at least at my museum, the new regulations have even begun to do some good.