The Native American Graves Protection and Repatriation Act (1990): Where the Native Voice Is Missing

My Father, our country was given to us by the Great Spirit, who gave it to us to hunt upon, to make our cornfields upon, to live upon, and to make our beds upon when we die.

—Metea (Potawatomi) (1821)

Passage of the Native American Graves Protection and Repatriation Act (NAGPRA, or the Act) in November 1990 represented the culmination of decades of protest, private negotiations, and legal action by Native American communities across the country. Four issues stood in the foreground:

1. 1. the failure of museums to represent Native American culture accurately and appropriately;

2. 2. museums' possession and display of Native American human remains;

3. 3. the presence of sacred and culturally sensitive material culture in museum collections; and,

4. 4. the illicitness, even violence, with which most of the objects in these collections had been obtained.¹

In 1971, the American Indian Movement disrupted an archeological dig outside Minneapolis–St. Paul. Despite the absence of human burials at the site, the confrontation was important to the group's members, who observed the excavation proceeding without respect to Native values and beliefs.² Ten years later, the newly formed North American Indian Museums Association issued "Suggested Guidelines for Museums in Dealing with Requests for Return of Native American Materials."³ In 1984–85, the Zunis successfully blocked—on religious grounds—the New York Museum of Modern Art's proposed inclusion of a war god sculpture in an exhibition on "primitivism" in twentieth-century art; a label explained the empty pedestal.⁴ Around the same time, the Three Affiliated Tribes (the Mandan, Hidasta, and Arikara Nations) convinced the State Historical Society of North Dakota to return nearly a thousand sets of Indian bones and to cease storing human remains and their associated burial artifacts.⁵

Despite these principled efforts, perhaps NAGPRA would not have been passed were not the international museum community facing, since the late 1960s, legal and ethical questions concerning the methods by which individual institutions built their collections. In 1970, UNESCO adopted the "Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property" (which the United States adopted twelve years later). Also in 1970, the United States signed a treaty with Mexico for the "Recovery and Return of Stolen Archaeological, Historical, and Cultural Properties."

Professional societies and museums, however, typically sought to preempt the need for binding national legislation by making changes to their own operating guidelines. For instance, the American Anthropological Association voluntarily developed a policy of returns to close relatives.⁶ Museums were particularly concerned with the passage in 1978 of the American Indian Religious Freedom Act, which resolved:

That henceforth it shall be the policy of the United States to protect and preserve for American Indians the inherent right of freedom to believe, express, and exercise the traditional religions . . . including . . . access to sites, use and possession of sacred objects.⁷

Initial fears that the federal government would authorize Native Americans to reclaim sacred objects from institutional collections were allayed when no agency wrote regulations or enacted procedures to implement the legislation.⁸

At its essence, NAGPRA regulates transfers of ownership within the confines of established conceptions of private property. It seeks to protect Native American (including Indian, Native Hawaiian, and Alaskan Village) burial sites and to regulate, through administrative permitting, the removal of human remains, burial artifacts, sacred objects, and objects of cultural patrimony located on federal or tribal lands.⁹ NAGPRA also establishes a process, based on a two-tiered inventory and notification system, for the "expeditious" repatriation of human remains and other objects held by federal agencies and federally funded museums.¹⁰ The repatriation standards of NAGPRA are largely based on the 1989 agreement with the Smithsonian Institution—codified within the National Museum of the American Indian Act (NMAIA)—which provides for the return of human remains and other objects shown to be "culturally affiliated" with a particular tribe "by a preponderance of the evidence."¹¹ Strikingly, under both NMAIA and NAGPRA, such evidence may be biological, linguistic, archaeological, folkloric...