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- By Jenna Kunze
WASHINGTON — The federal government yesterday announced a major overhaul to a decades-old law that governs the return of Native American ancestral remains and artifacts to their tribal nations.
Department of the Interior Secretary Deb Haaland (Laguna Pueblo) announced final revisions to the 33-year-old Native American Graves Protection and Repatriation Act (NAGPRA) on Dec. 6 at the 2023 White House Tribal Summit in Washington, D.C.
The final rule, nearly three years in the making, expedites and simplifies the process for tribal nations seeking their relatives’ return. The new rule closes a loophole that museums and federally funded institutions have used to retain ancestral remains and burial objects in their collections for years. It also sets a strict five-year deadline for them to re-inventory and return their collections of Native American human remains and burial objects to their present-day tribal nations.
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The new rule is intended to “fix the barriers to repatriation,” said Melanie O’Brien, manager of the National NAGPRA Program that’s responsible for administering the Act on behalf of the Secretary of the Interior. “We’re trying to get back to what Congress intended…that got somehow misunderstood between then and now.”
The final rule will be published to the federal register in the coming days, according to the Interior Department, and become law 30 days after its date of publication.
Passed by Congress in 1990, NAGPRA is a human rights law that legally compels museums and federal institutions that possess Native American human remains and associated funerary objects to catalog and return those ancestors and belongings within five years to their present-day tribal nations.
Since 1995, museums have reported a collection of more than 208,000 human remains. But in the past 33 years, not even half have been returned. Today, institutions still hold roughly 96,000 human remains, according to the government’s database, in large part because of a loophole in the law.
The majority of human remains in institutions today have been deemed “culturally unidentifiable” by the institutions that hold them. The law has given the museums decision-making authority to determine kinship and cultural affiliation, and to therefore—in many cases—reject tribal evidence of oral history, geographic affiliation to the area where remains were unearthed, and other traditional knowledge.
Removing barriers to repatriation became a priority of the Interior Department when Haaland and Assistant Secretary of the Interior Bryan Newland (Bay Mills Community) took office in March 2021. Assistant Secretary Newland and Shannon Estenoz, assistant secretary for Fish and Wildlife and Parks, led initial consultation on the draft proposal with 71 Native Nations in the summer of 2021, and received more than 700 specific comments on the proposed changes.
Although there have been small changes to the law over the years, the new change is the first total revision in the law’s three-decade history, according to O’Brien, the national NAGPRA manager.
Key changes to the law include: shifting the onus of initiating consultation from tribal nations to museums and institutions; requiring deference to the Indigenous knowledge of lineal descendants and tribes; eliminating the term “culturally unidentifiable” that’s kept ancestors and their belongings in museums’ possession for decades; and setting the clock for five years for museums and federal agencies to re-inventory their collections and consult with tribes for return.
Additionally, the new law will require museums and federal agencies to “require free, prior, and informed consent before any exhibition of, access to, or research on human remains or cultural items.”
Although the number of human remains and their burial objects held by institutions gets larger each year with additional discovery, O’Brien told Native News Online she’s hopeful that the new law will refocus on the end goal: repatriation.
“It’ll definitely get bigger,” O’Brien said of the total accounting. “But our hope is that there's less of an emphasis on counting and more of an emphasis on accountability so that it's not about the exact numbers, but it's about repatriation. My goal [is] to work myself out of a job.”
Assistant Secretary Newland told Native News Online at the White House tribal summit that, for him personally, strengthening NAGPRA contributes to the Interior’s aim towards tribal healing.
“It’s all tied to this larger work that we're doing with the boarding school initiative, the sacred sites protection. The well-being of Native people is connected to physical health and mental health and also their spiritual health. NAGPRA plays an important part in that, and making sure we're bringing ancestors home and treating them with respect.”
Pechanga Band of Luiseño Indians Chairman Mark Macarro, the newly elected president of the National Congress of American Indians (NCAI), called the updates to the law “substantial.”
In California, UC Berkeley’s Phoebe A. Hearst Museum of Anthropology is infamous among tribal communities and federal officials as the worst offender of NAGPRA, Macarro said. But changes to NAGPRA will remove the ‘culturally unidentifiable’ loophole that the museum has used to keep more than 12,000 ancestors in its possession.
“That has been fixed,” Macarro told Native News Online at the White House Tribal Nations Summit. “It appears that the [updated] law has tilted the intent of NAGPRA to favor tribes, tribal expectations, [and] tribal cultural knowledge. It’s going to give us more efficacy.”
Macarro added that he was hoping the revisions would have more “teeth” to enforce the law.
Pechanga Band of Luiseño Indians Chairman and newly elected President of the National Congress of American Indians Mark Macarro. (photo/Levi Rickert for Native News Online)
Over the last 30 years, the National Parks Program collected a total of $59,111 in civil penalties from institutions failing to comply with NAGPRA, O’Brien told Native News Online last year.
A ProPublica investigation published in March 2023 showed how a University of California, Berkeley professor worked to deny tribal requests for repatriation for human remains, some of which he may have used to teach classes with. The professor, Tim White, even sued to block the UC system from returning two sets of human remains he and other professors wanted to study.
“There are people in the University California system, who, frankly, are criminals,” Macarro told Native News Online. “They've been engaged in, what I think, is criminal activity of willfully ignoring and gaming the system of NAGPRA, [by] using ‘culturally unidentifiable’ to keep ancestral remains out of the reach of tribes.”
Macarro compared the civil penalties to a civil proceeding after a murder trial. Asked what he thought an appropriate penalty would be, Maccaro responded: “I think jail time, and hard money. Substantial amounts of money.”
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