ICT

This is the first installment in a three-part series by Underscore's publishing partner, ICT, examining new rules under the Native American Graves Protection and Repatriation Act.

Changes to the Native American Graves Protection and Repatriation Act were announced in the dry language of the Federal Register in December and quietly went into effect earlier this year.

But contrary to the ordinary unveiling, the NAGPRA final rule, as it is called, represents a tectonic shift in how museums, universities and other public institutions interact with Native peoples in repatriation of ancestral remains as well as sacred and cultural objects.

The new rules — which give deference to Indigenous knowledge — have sent museums across the country scrambling to hide Indigenous exhibits from public view as officials work to interpret the changes in the law.

The Field Museum in Chicago, the Peabody Museum at Harvard University, the Cleveland Museum of Art and several others have closed off entire exhibits, shielding them from public view as officials embark on the consultation process.

The American Museum of Natural History in New York closed two major halls dedicated to Indigenous cultures of North America, the Eastern Woodlands and the Great Plains, as well as displays holding Native Hawaiian artifacts. But the museum has also proudly left open its oldest gallery, the 125-year-old Northwest Coast Hall, which was rededicated in 2022 after extensive work with Indigenous communities and curators.

The Ohio History Connection’s museum also recently opened a new exhibition after working closely with tribes in a way that meets the new NAGPRA rules.

“It’s an amazing thing that the federal government has included free, prior, informed consent in a regulation,” said Shannon O’Loughlin, an attorney and chief executive of the Association on American Indian Affairs.

“The final rule helps support the concept that NAGPRA is a human rights law,” O’Loughlin said.

Assistant Secretary for Indian Affairs Bryan Newland, a citizen of the Bay Mills Indian Community, said the new rules acknowledge tribal interests.

“NAGPRA is an important law that helps us heal from some of the more painful times in our past by empowering tribes to protect what is sacred to them,” Newland said in a statement.

“These changes to the department's NAGPRA regulations are long overdue and will strengthen our ability to enforce the law and help Tribes in the return of ancestors and sacred cultural objects,” Newland said.

As of January, public institutions still held nearly 100,000 Indigenous remains and nearly 700,000 funerary objects in their collections, many of which have been declared to be culturally unaffiliated with modern-day tribes.

The new rules apply to public institutions such as universities and museums, but also to private institutions that have received federal funds, such as COVID relief or stimulus funds.

Making the decisions

Like most sea changes in public policy and opinion, the backstory is long and complex.

It reflects years of hard work by tribes and public institutions building relationships that have helped lead to this point. Public awareness has also grown through media investigations that put a spotlight on the country’s shameful historic practice of collecting and disrespecting Indigenous remains and sacred objects.

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In the past, museums and other public institutions were the primary experts in making decisions about how items could be displayed and which ones should be returned to tribes. The practice violated the 2008 United Nations Declaration on the Rights of Indigenous Peoples, known as UNDRIP, which among other principals guarantees the right to “the use and control of their ceremonial objects and human remains through a fair, transparent and effective mechanism developed in conjunction with Indigenous peoples concerned.”

Coupled with America’s growing willingness to examine its inequitable history with communities of color, recent developments have helped create a flashpoint of public awakening to this long-simmering problem.

Since enactment of the final rule, several members of Congress have spoken out in support.

U.S. Sen. Brian Schatz, a Democrat from Hawai’i, chair of the Senate Committee on Indian Affairs, recently spoke on the Senate floor demanding public institutions return Indigenous remains and cultural objects.

“The U.S. government literally stole people’s bones,” Schatz said. “Soldiers and agents overturned graves and took whatever they could find. The theft of hundreds of thousands of remains and items over generations was unconscionable in and of itself.”

He continued, “But the legacy of that cruelty continues to this day because these museums and universities continue to hold onto these sacred items in violation of everything that is right and moral — and importantly, in violation of federal law.”

New timelines for repatriation

NAGPRA was first enacted in 1990 and is administered by the National Park Service, an agency operated through the U.S. Department of the Interior.

The law is designed to provide protection for Native graves and the repatriation of remains and cultural patrimony through consultation with tribes, Native Hawaiians and Alaska Natives.

For years, however, Native peoples have complained that the process was too slow and offered too many loopholes for institutions, allowing them to avoid or stall repatriation and to keep sacred objects on public display despite Native objections.

Consultation under the law was often minimal, sometimes amounting to no more than a form letter sent to tribal leaders. And by labeling remains or objects as unidentifiable or unconnected to a contemporary tribe, institutions were allowed to skirt most regulations altogether.

The law also effectively accepted mainstream interpretations of Indigenous patrimony and discounted claims made by Native peoples about their own cultures.

But as new generations of archaeologists, anthropologists and museum directors have come on board since NAGPRA was enacted, organizations and the public have grown more aware of the inequity of past practices.

According to the NAGPRA annual report for 2023, 38 percent of museums subject to the law have resolved all Native remains under their control and, for the first time since 1990, more than 50 percent of the 116,978 reported remains have completed the NAGPRA process, though details are not available on how many of those remains have been returned.

The final rule will force the remaining organizations to deal with the issues now rather than later by changing the old power dynamic. The new rules:

  • Require public organizations to obtain free, prior and informed consent from tribes before exhibiting cultural items or giving access to or allowing research on items and human remains.
  • Strengthen the authority and role of tribes and Native Hawaiian organizations in the repatriation process by requiring deference to Indigenous knowledge.
  • Eliminate the category, “culturally unidentifiable human remains,” and reset the requirements for cultural affiliation to allow contemporary tribes to exert control.
  • Increase transparency and the reporting of holdings to shed light on collections currently unreported under old regulations.
  • Require museums and federal agencies to consult and update inventories of human remains and associated funerary objects within five years from the final rule, in 2029.

“In the past, it’s always been their (museums and institutions) interpretation of our people and we’ve just had to live with it in terms of repatriations and display of our sacred objects,” said Raphael Wahwassuck, tribal council member for the Prairie Band Potawatomi Nation, now based in Kansas but with roots in Illinois. Wahwassuck also sits on the Field Museum’s Repatriation Task Force.

The Interior Department published the proposed NAGPRA rule for public comment in October 2022 and received 181 individual submissions that yielded more than 1,800 specific comments.

“The new NAGPRA final rule is the result of many months of nation-to-nation consultation, collaboration across the department and federal family,” said Shannon Estenoz, assistant secretary for fish, wildlife and parks, in a statement released by the Interior Department.

“It represents an all-of-government approach to respecting and strengthening our Indigenous connections, enhancing our nation-to-nation relationships, and fully upholding our trust and treaty responsibilities,” Estenoz said.

Picking up the tab

The comments published in the federal register include complaints from tribal leaders and others about the high costs associated with following NAGPRA. Although some grants are available through the NAGPRA office, tribes still shoulder the ongoing costs of maintaining staff to take on the demands of consultation.

“NAGPRA continues to be an unfunded mandate,” said Anton Treuer, a professor of Ojibwe at Bemidji State University in Minnesota. Treuer is a descendant of the Leech Lake Ojibwe Nation and a member of the governing boards for the Minnesota State Historical Society.

Treuer and other tribal leaders who spoke to ICT reported receiving scores of requests in recent weeks from institutions seeking advice and consultation on following the final rule. The vast collections of remains previously considered culturally unaffiliated with a specific tribe are now eligible to be repatriated under a five-year timeline that has added some urgency for institutions.

This represents a massive undertaking, though organizations can seek extensions during consultations with tribes under the final rule.

Some institutions offer financial support to tribes for travel and associated repatriation costs, but several tribal leaders suggested that the institutions should shoulder more of the costs.

“Not only the Field Museum, but others, have profited quite a bit from possession of our ancestors,” Wahwassuck said.

Chief Ben Barnes of the Shawnee Tribe of Oklahoma wondered about the untold profits that collections of Indigenous remains and objects have provided to universities.

“How many undergraduate and graduate degrees have been bestowed, how many research grants have been gained, based on our patrimony?” he asked.

Closing the doors

Institutions such as the American Museum of Natural History and the Ohio History Connection have long held and collected the remains and objects of Native peoples.

Americans, including soldiers, scientists and private citizens, have contributed to the holdings by looting battlefields and burials since the founding of the country.

Indeed, according to Brad Lepper, senior archeologist at the Ohio History Connection in Columbus, the organization was founded in 1885 as a means to keep remains and objects from being moved to museums out of state.

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Brad Lepper, senior archeologist at the Ohio History Connection in Columbus, describes the museum's latest exhibit behind him, “Following in Ancient Footsteps,” that was created in collaboration with tribes whose homelands are located in Ohio. The collaboration met the conditions of restrictive new rules under the federal Native American Grave Protection and Repatriation Act, known as NAGPRA. (Photo by Mary Annette Pember/ICT)

The Ohio History Connection now holds more than 7,000 ancestral remains, more than any other institution in the United States. The remains are being held outside of public view in large warehouses, and other items subject to the final rule have been removed from display.

The connection’s museum, however, recently unveiled a new exhibition, “Following in Ancient Footsteps,” created in collaboration with eight tribes including the Shawnee and Miami who occupied the region before removal in the 19th century.

The exhibit includes items unearthed years ago from two of the Hopewell and Fort Ancient mound groups, which did not contain remains or funerary objects but rather were places where offerings were made by ancient ancestors of contemporary tribes, Lepper said.

The tribes disagreed on publicly displaying the items, but the museum added signage explaining the decision at the exhibition entrance.

“Based on these conversations, we agreed that we would display items in an area where visitors could choose whether or not to see them,” the sign states.

“We’re working in concert with them and building trust,” Lepper said. “I’m finding it very intellectually stimulating and rewarding from the sense of doing the right thing.”

The Field Museum in Chicago, however, covered several display cases in two exhibition halls containing cultural items from Native communities throughout the U.S. after the new rules came out in December.

“Pending consultation with the represented communities, we have covered all cases that we believe contain cultural items that could be subject to these regulations,” the museum said in a press release in January. “The Field Museum does not have any Native American human remains on display.”

The Field Museum also submitted a letter during the 2022 comments period offered by the Department of the Interior complaining about costs associated with NAGPRA, even though the organization has received more funding than other U.S. museums to conduct Native-related programming, according to ProPublica.

In 2017, the Field Museum received a $700,000 grant from the Mellon Foundation for its “Native Truth’s: Our Voices, Our Stories” exhibition, and in 2022 received another $1 million to connect Indigenous communities in the U.S. to their collections. The museum has also received several NAGPRA grants and is among the top 20 holders of Indigenous remains, with 1,294 individuals, ProPublica reported.

Bridgette Russell, interim director of marketing and communications for the Field Museum, responded to ICT questions in an email, saying that the museum has repatriated 38 percent of its Native remains to date.

For tribal leaders, that’s not nearly enough.

“They’ve (the Field Museum) gotten this much money for Native American programming yet they still have only repatriated a small percentage of their Indigenous human remains,” said O’Loughlin.

O’Loughlin said organizations are more interested in burnishing their public image, painting themselves as sensitive and responsive to Indigenous concerns while failing to carry out tangible repatriation work.

“They should prioritize complying with federal law,” she said.

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The American Museum of Natural History sits near Central Park in New York City. The museum spent nearly $20 million updating its Northwest Coast Hall devoted to tribes in the Pacific Northwest area through a broad collaboration that meets strict new NAGPRA rules that went into effect Jan. 12, 2024. Indigenous leaders say the new hall reflects the thriving contemporary Indigenous cultures of the territory. (Photo by Stewart Huntington/ICT)

At the American Museum of Natural History in New York, the new federal NAGPRA regulations have added urgency to efforts already under way to address the paternalistic sensitivities that linger still in an institution founded in a different age.

“It certainly accelerated some of our efforts, especially on the exhibition front,” said President Sean Decatur.

Over the past few years, the museum has removed from its entrance a statue of founding patron Teddy Roosevelt that was widely viewed as racist, and placed new signage on exhibits depicting Lenape Indians that more accurately explain their lives and culture while pointing out the misguided thinking behind the original display.

The Northwest Coast Hall was completely reworked with Indigenous leadership to reflect contemporary Native culture and communities. But the new NAGPRA regulations required some 1,600 display items to undergo review by Native communities, which caused the museum to shutter the two major exhibit halls.

“It felt appropriate both because of the scale of the objects that were there but also because those halls were not consistent with our current framework and expectation about how Native voices are included in the narrative,” Decatur said.

The changes have not come fast enough, however, for many tribal and political leaders. Schatz said in his remarks to the Senate that museums, universities and others should speed up the repatriation process.

”University provosts and presidents can do all the land acknowledgements they want,” he said. “They can post lengthy statements about equity on their websites and champion any number of progressive causes. But all of that rings pretty darn hollow if they’re at the same time clinging onto vast collections of stolen items because of a perverse, patronizing sense of ownership.”

‘Holding our ancestors captive’

The final rule broadens the ways that institutions can be fined for violating the act, but money from any civil violations goes into the U.S. Treasury rather than into the NAGPRA program. Since the original 1990 law was enacted, the government has fined institutions just under $60,000 in total.

The Pokagon Band of Potawatomi in Michigan funds their repatriation work through profits generated by the tribe's various economic development projects, according to Matthew Bussler, the band's tribal historic preservation officer.

“Repatriation of our ancestors is a high priority for us; we have been fortunate enough to have resources available to be able to re-inter them in a very beautiful space that is protected,” Bussler said.

The band has participated in 10 institutional repatriations so far, and has repatriated 177 remains from the private Donald Miller collection in Indiana. In 2018, Indian Country Today, as ICT was known then, reported that the FBI had seized thousands of Indigenous artifacts and remains collected by Miller.

In addition to work related to NAGPRA, many tribes like the Pokagon Band are also responsible for consultation under the National Historic Preservation Act. According to section 106 of that act, federal agencies must consult with tribes on projects.

“We are one of the three consulting tribal entities for the state of Michigan for all projects subject to the National Historic Preservation Act; we receive thousands of consultation requests per year,” Bussler said.

Bussler’s office has received more than 10 requests for consultation from institutions since the final rule was enacted.

“Our office is slammed as it is,” he added. “We are currently operating with only a team of two people.”

Bussler said the tribe participated in consultation on the Field Museum’s “Native Truth’s: Our Voices, Our Stories” exhibition, but said the institution has not yet provided any inventories of its holdings of human remains.

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Summer school groups move through the Field Museum's new permanent exhibition, “Native Truths: Our Voices, Our Stories,” in Chicago after it opened in May 2022. The exhibition was designed with input from 11 Indigenous scholars and museum professionals and more than 130 collaborators representing more than 100 tribes. (Photo by Dan Ninham for ICT)

He said he was pleased overall with the final exhibit, since it included more of the tribal story than had been included before by the museum.

“Tribal stories need to be told by tribes, but this was a step in the right direction,” he said.

Bussler, however, expressed concern about the Field Museum’s ongoing failure to provide inventories of its holdings of remains and objects. He said the band has repatriated only one ancestor from the Field Museum’s collection, though the Potawatomi people have been present in Northern Illinois where the museum is located since time immemorial.

“We’ve consulted on their new exhibit but they are still holding our ancestors captive,” he said.

Russell said in response to ICT’s emailed request for comment on the tribal concerns that the museum is working to improve its collaboration with tribes.

“The new NAGPRA regulations require museums to be better partners by more actively consulting with Tribes and returning ancestors and cultural items more quickly,” Russell said, “and we fully agree with this stance.”

‘They are not objects’

Tribal leaders have largely praised the changes, and have drawn support in Congress.

Several Congressional representatives sent a recent letter to Interior Secretary Deb Haaland, Laguna Pueblo, asking her to increase funding for tribal historic preservation officers in the 2025 budget in order to fulfill the demands of the final rule as well as the National Historic Preservation Act.

U.S. Rep. Raul M Grijalva, a Democrat from Arizona, sent the letter, which was also signed by four other Democratic members of Congress: Sydney Kamlager-Dove of California; Donald S. Beyer Jr. of Virginia; Teresa Leger Fernandez of New Mexico; Melanie Stansbury of New Mexico; and Seth Magaziner of Rhode Island.

Bussler and other Native leaders, meanwhile, lauded the NAGPRA final rule for removing the requirement of finding direct descendants of “culturally unidentifiable individuals” in order to accept remains, saying it was a significant barrier to repatriation.

Tribes, he said, will work together to determine who is most appropriate to care for the ancestors.

“Everybody has the same intention, and that is to be expedient, effective and to get the job done in the most respectful way possible,” he said. “Removing that barrier is helpful not only for the ancestors but for the spiritual and emotional wellbeing of our communities

“These ancestors are human beings with rights; they are not objects.”

More info
The summary of changes by the U.S. Department of the Interior to the Native American Graves Protection and Repatriation Act of 1990, or NAGPRA, is included in the formal publication of the proposals in the Federal Register on Dec. 13, 2023. The new rules – identified as the “final rule” – went into effect on Jan. 12, 2024.

“This final rule revises and replaces definitions and procedures for lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies to implement the Native American Graves Protection and Repatriation Act of 1990. These regulations clarify and improve upon the systematic processes for the disposition or repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. These regulations provide a step-by-step roadmap with specific timelines for museums and Federal agencies to facilitate disposition or repatriation. Throughout these systematic processes, museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.”

ICT producer/reporter Stewart Huntington contributed to this report.

Lead image: The Field Museum in Chicago shuttered this exhibit in response to strict new rules under the federal Native American Graves Protection and Repatriation Act, or NAGPRA. The new rules went into effect Jan. 12, 2024, prompting a number of museums across the country to close exhibits until they could properly consult with tribes about the items that had been displayed. (Photo courtesy of the Field Museum)

Mary Annette Pember, a citizen of the Red Cliff Ojibwe tribe, is a national correspondent for ICT.