Contesting Scientists' Narrations of NAGPRA's Legislative History: Rule 10.11 and the Recovery of "Culturally Unidentifiable" Ancestors

May 14, 2010, marked a significant victory in the centuries-long struggle of Native peoples to protect our dead and their funerary objects from the "collecting" of generations of scientists. Nearly twenty years after being mandated by the passage of the Native American Graves Protection and Repatriation Act (NAGPRA), the final rule implementing and governing the "Disposition of Culturally Unidentifiable Human Remains" was established.

Although far from perfect, the final rule codified in section 10.11 requires federally funded institutions, which together continue to hold approximately 120,000 deceased Native Americans, to "initiate consultation" for the purpose of producing an "offer to transfer control of the human remains to Indian tribes and Native Hawaiian organizations."¹ These museums and agencies have ninety days to respond to tribes and Hawaiian organizations requesting consultation. Should they receive no requests, the museums, universities, and agencies "must initiate consultation" with tribes and Hawaiian organizations from whose tribal and aboriginal lands the bodies and funerary objects were removed. The new rule leaves little doubt that the National NAGPRA Program and the secretary of the interior view the purpose of the NAGPRA legislation as the return of Native dead to Native peoples.

Given that these deceased relatives, designated by scientists and museum officials as "culturally unidentifiable," total approximately three times the number of ancestors that they have returned, or agreed to return, to their closest living descendants thus far, it is not surprising that many prominent archaeologists, physical anthropologists, and museum personnel vehemently oppose the new rule.² Indeed, the leaderships of their largest professional organizations have published scathing denouncements of section 10.11.

In this paper, I interrogate the specific claims contained in these attacks. I argue that scientists' assaults on the new rule are part of an extended political and public relations strategy developed by leading members of the archaeology, physical anthropology, and museum industry in the late 1980s and 1990 to resist the repatriation demands of Native peoples. Examining the recorded legislative history of NAGPRA, I show that, despite their continuous claims to the contrary, major scientific organizations fought first to halt and then, once they saw that a federal law was inevitable, to weaken repatriation legislation. Their campaign to rewrite this history for their own advantage is, I argue, fundamental to their long-term effort to reinvent NAGPRA's purpose to fit their own agenda. In short, Native peoples continue to struggle with an entrenched assumption of colonial prerogative among American physical anthropologists and archaeologists.

The Attack on Section 10.11

The political attacks mounted by the largest repatriation-opposing professional scientific organizations hinge on the assertion that they know and can objectively relate the intent of the legislators who collectively passed H.R. 5237, which became NAGPRA. As they re-collect this legislative history, NAGPRA was to strike a "balance" between the desires of scientists to hold and study Native dead and the funerary objects placed by relatives into their graves and the responsibility of Native peoples to defend and respect our ancestors, who certainly did not consent to being dug up and "curated." This balance, the repatriation-opposing scientists claim, amounts to "a compromise" that protects the wishes of archaeologists, physical anthropologists, and museum professionals at a level equal to the rights of American Indians and Native Hawaiians seeking to protect the graves of our dead. This compromise, they maintain, adds to a longstanding, respect-based collaboration between Indians and scientists that predates NAGPRA. The new rule, they charge, undermines the intent of Congress, the needs of the scientific community, and the productive working relationships between scientists and tribes.

A representative sample of these sentiments can be found in the following language from a letter addressed to the manager of the National NAGPRA Program. Signed by the president, two past presidents, and the chair of the Repatriation Committee of the American Association of Physical Anthropology (AAPA), it was sent on May 10, 2010, as part of the public comment period on the pending new rule:

A key element of NAGPRA that...