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.
* * *
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
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
* * *
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.
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