In Addressing Cultural and Historic Injustices Against Native Americans

In the last days of 1890, U.S. cavalry silenced the voices of approximately 250 Lakota at South Dakota’s Wounded Knee Creek during a murderous attack on the group that included a majority of women and children; opportunists then thieved their makeshift graves. The human remains and sacred objects taken at that time were then absorbed into ‘civilized’ society’s institutions during what has been aptly described as “a chillingly non-consensual chapter of ‘ethnographic’ collecting and curation in American history”. More than a lifetime then passed before Congress enacted laws that called for repatriation to the descendants of those wronged.

A period photograph showing the aftermath of the Wounded Knee Massacre, with victims’ bodies on the ground.

Nearly 100 years after the ambush at Wounded Knee, described as the “last major armed conflict” between the U.S. and Indigenous peoples of the Great Plains, the U.S. passed law that called for federally-funded entities to be transparent about their Native American holdings and to expeditiously return human remains and sacred cultural objects to lineal descendants and tribes. That law, the 1990 Native American Graves Protection and Repatriation Act (Pub.L. 101-601; 25 U.S.C. 3001-3013;104 Stat. 3048-3058), stood as a beacon of healing from the prejudice that had persisted in the States towards Native Americans. Regrettably, in the three decades that have ensued since NAGPRA became law, most entities required to comply with its mandates have not done so. However, hopeful change seems to be afoot with a series of pending revisions to the oft-sidestepped NAGPRA.

The Mandates – and Deficiencies – of NAGPRA

NAGPRA’s instructions appear to be straightforward but have proved to be anything but. In its original form, the law provides that all federal agencies and institutions such as museums that receive federal funds “must compile an inventory of Native American human remains and associated funerary objects and a Summary of other cultural items” in holdings or collections; “[c]onsult with lineal descendants, Indian Tribes, and Native Hawaiian organizations”; “[e]valuate repatriation or disposition requests for cultural items”; and finally, after giving public notice, those agencies and institutions “must expeditiously repatriate or transfer” the remains and/or objects requested. Failure to comply “may” result in criminal prosecution or civil penalties.

A lamentable truth is that the approaches of Penn and Founders appear to be more the exception than the rule. Despite million dollar grants to aid the process, the number of returns made under NAGPRA have been underwhelming. A myriad of reasons are to blame for this. The historic approach to NAGPRA requirements by University of California, Berkeley, Harvard University and University of Alabama exemplify some of the repatriation blockades.

UC Berkeley earned a reputation for resistance to repatriation over the years that only recently has begun to change. As of 2020, UC Berkeley reportedly held the largest U.S. museum collection of Indigenous remains and sacred objects – approximately 10,000; had only repatriated approximately 20% of eligible remains since NAGPRA was enacted; and “routinely demanded additional evidence that delayed returns”. According to a representative from Berkeley’s Hearst Museum of Anthropology, non-compliance with NAGPRA is rooted in several issues, including “restrictive and inequitable” interpretations of NAGPRA that allow scientific and scholarly evidence to outweigh tribal interests, knowledge and/or tradition; exclusion of tribal representatives from the repatriation conversation; and  exclusion of over 200 tribes that have not been granted federal status. In January 2022, Hearst finally repatriated 20 individuals’ remains and 136 objects to the Wiyot Tribe after initially denying the Wiyot’s 2016 request for the now-returned items that are linked to the 26 February 1860 Indian Island Massacre by armed attackers on sleeping women, children and elderly.

Harvard University is another high-profile example of questionable NAGPRA compliance until just a while ago. Harvard was publicly denounced in a 2021 open letter from the Association on American Indian Affairs for creating “unconscionable” lags, employing a “convoluted” repatriation review process, and returning “just around 18% of its Indigenous collection”.  Following the AAIA’s stinging reprimand, Harvard and its Peabody Museum of Archaeology and Ethnology apologized for collecting practices that reaped from “colonial and imperial policies” while pointing out that Harvard had repatriated 34% of its Indigenous holdings. Self-described as holding “one of the largest collections subject to NAGPRA” that previously included more than 10,000 individual human remains, the Peabody notes that, as of July 2022, “the cultural affiliation and transfer of over 3,000 individuals, 8,000 funerary objects,  and 100 objects of cultural patrimony and sacred objects” had occurred. 

University of Alabama is another object lesson in long-term NAGPRA compliance issues. In the 1920s, the University purchased and began excavations at Moundville, named for its 29 massive flat-topped earthen monuments. Excavated remains and artifacts moved from their resting places were then stored in university labs. After NAGPRA’s enactment, claims for those remains were made by Muscogee-Speaking Tribes who had been in that territory prior to the forced ‘Trail of Tears’ relocation of the 1800s. The communications that ensued with University of Alabama have been described as “always [being] funneled through long chains of command, without any progress toward repatriation”. The ‘Capstone’ University cited inconclusive Tribal connections to the remains as its repatriation impediment – reasoning refuted by the reviewing NAGPRA Committee that found a “preponderance of the evidence” linked the remains with the Muskogean-Speaking Tribes. Over one year after the NAGRPA Committee findings, no returns appear to have occurred; University of Alabama states only that “all known funerary objects were removed from the museum at the [Moundville Archaeological] park, and an inventory check was being performed at the University, where it was found that over 10,000 ancestors were in the university’s possession.”

Proposed Revisions to NAGPRA

In October 2022, the Department of the Interior offered revised regulations to improve on NAGPRA’s implementation. One seemingly large stride forward is the appointment of a full-time civil penalties investigator, David Barland-Liles, who will monitor NAGPRA compliance. Other proposed revisions include offering “a step-by-step roadmap for museums and Federal agencies to comply with the requirements”; “[e]stablish[ing] specific timelines to facilitate the required disposition and repatriation”, as well as “[r]equir[ing] deference to the customs, traditions, and Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.” 

To date, comments to the proposed revisions have included those that stress the urgency for timely returns and the need for justice through these returns. The period for public comment will remain open through mid-January 2023. 

The Time for Expeditious Repatriations is Now

The Wounded Knee Massacre and Indian Island Massacre are emblematic of the countless, senseless atrocities committed against the Native American community that were followed by theft and hoarding of the dead and the sacred. Complete justice for those killed is not possible; the limited form of justice available now is through return of those items that should never have been taken. NAGPRA calls for this as does a chorus of Native ancestral voices who have been muted for far too long.