The Native American Graves Protection and Repatriation Act: Where Are We Now?

Despite the 1990 law requiring swift returns to Native American tribes, more than 100,000 Native American individuals’ remains and several hundred thousand funerary objects are currently in the possession of American museums and institutions. Starting in January 2023, ProPublica initiated a series called “The Repatriation Project,” with the primary focus on investigating and reporting the way museums and other institutions handle the repatriation of Native American human remains and cultural items as mandated by the Native American Graves Protection and Repatriation Act (NAGPRA). This ongoing initiative involves exploring how these institutions acquired such remains, providing data on their origins, and identifying the institutions that still possess them. According to the investigation, a significant portion of these unreturned remains and artifacts are concentrated in 10 institutions, including prestigious universities, federal agencies, and the author’s institution.

In 1990, Congress enacted NAGPRA, a human rights law established to address the rights of Native American tribes and Native Hawaiian organizations concerning the return of human remains, burial artifacts, sacred items, and cultural objects held by entities receiving federal funding, such as museums and federal agencies. NAGPRA’s primary goals are repatriation, consultation, inventory, and documentation. It mandates that institutions receiving federal funding and possessing Native American or Native Hawaiian cultural items must return them to the respective tribes or organizations. This includes human remains, burial artifacts, and culturally significant objects. The law requires museums and federal agencies to consult with tribes and Native Hawaiian organizations to determine which items are eligible for repatriation and to facilitate the return process, promoting cooperation to resolve disputes. Institutions must also create inventories of their collections, identifying these cultural items, detailing their origins, and documenting their cultural affiliations to aid in repatriation.

The law also establishes procedures for handling the accidental discovery or planned excavation of Native American cultural items on federal or Tribal lands. Still, these provisions do not apply to discoveries on private or state lands unless the objects come under the control of federally funded institutions. NAGPRA criminalizes the trafficking of Native American human remains without rightful possession or of cultural items obtained in violation of the act. This legislation was enacted in response to concerns expressed by Native communities regarding the removal and retention of their ancestors’ remains and cultural artifacts by museums and institutions for various purposes, including scientific study and display. When Congress passed NAGPRA in 1990, lawmakers anticipated repatriation would be completed within five to 10 years. It could not have been expected that all these decades later, institutions would still have so much.

NAGPRA has repatriated thousands of human remains, funerary objects, sacred objects, and cultural items to Native American tribes and Native Hawaiian organizations. Still, the incomplete nature of the process three decades later has required a rethinking of the regulations. There are numerous reasons attributed to the failure to repatriate. Some institutions have remained in possession by utilizing the argument that they are not required to begin the repatriation process absent a formal request. Some remains and artifacts are labeled as “culturally unidentifiable,” meaning institutions claim they cannot determine which tribe, if any, can rightfully claim them. Others cite a lack of funding from Congress to the National NAGPRA Program, which has hampered enforcement of the law. Regardless of the reasoning, the failure to repatriate has allowed for destructive research on Native remains and continued to separate Native Americans and Native Hawaiians from their ancestors and culture.

Not only is the federal government adjusting its approach to repatriating Native American artifacts, but several states are also actively engaged in this endeavor, each with its own set of laws and regulations governing the process. These state-level laws can complement and expand on existing federal regulations, offering diverse approaches. Some states have even established specialized agencies or commissions to oversee repatriation efforts, while others incorporate these provisions into broader cultural resource protection and historic preservation laws. For example, California has its state law, the California Native American Graves Protection and Repatriation Act (CalNAGPRA), implemented in 2001. CalNAGPRA’s primary goal is to support the federal NAGPRA and establish a framework for returning specific items to California Indian tribes, as defined by California NAGPRA. While it shares similarities with the federal NAGPRA in addressing the return of Native American human remains, cultural objects, and burial items, CalNAGPRA applies exclusively to cultural institutions and agencies in the state. In October 2023, Governor Gavin Newsom signed two laws compelling California’s public university systems to expedite their review and return of Native American remains and artifacts. The repatriation of Native American artifacts is a multifaceted effort.

In October 2022, the Interior Department proposed changes to NAGPRA regulations seeking to expedite the return of ancestral remains and funerary belongings to tribes within three years. The Interior consulted with 71 tribes and Native Hawaiian organizations on the draft proposal and received more than 700 specific comments.

New provisions for the regulations seek to enhance the authority and role of tribes and Native Hawaiian organizations in the repatriation process, emphasizing consultation at every step in the regulatory process and requiring deference to the customs, traditions, and Native American traditional knowledge of lineal descendants, Indian tribes, and Native Hawaiian organizations. The desired goals also include addressing barriers to timely and successful disposition and repatriation, documenting and addressing requests of tribes and Native Hawaiian organizations when human remains or cultural items are discovered on federal or Tribal lands before items are further disturbed, and increasing transparency and reporting of holdings or collections. The proposed revisions (and sometimes removals) seek to alter existing definitions for terms such as “affiliation,” “failure to comply,” and “culturally identifiable,” thereby seeking consistency and reducing ambiguities, adding new terminology, and removing obsolete terms. It clarifies the responsibilities and restrictions placed on institutions regarding everything from reporting to requiring institutions to halt research on Native American remains if requested by a tribe. Changes also address the permitting process and streamlining the review process. Also critical to the revisions is the three-year timeline for compliance.

NAGPRA has significantly impacted repatriation efforts and the recognition of Indigenous rights and cultural heritage but not substantially enough. It has facilitated the return of essential items to tribes and raised awareness about these issues. Ongoing challenges highlight this process’s complex and evolving nature and the continuing need to improve the regulatory framework addressing this critical human rights issue. While the efforts to streamline the requirements of NAGPRA, to improve upon its terminology, to mandate a new timeline for compliance, and most significantly to enhance the authority and role of those most impacted may prove effective, it remains to be seen where in this process the country’s institutions are in another 30 years.