How an Act Focusing on Native American Artifacts and Remains May Give Indigenous Communities More Bargaining Power
Commentary by Corrie Day
Corrie Day (she/her/hers) is from Minneapolis, Minnesota and a 2024 graduate of the University of Nebraska College of Law. In her role as the Policy and Compliance Senior Manager at the Nebraska Civic Engagement Table, she oversees programs including Lobby School and Youth Lobby School, as well as works in nonprofit compliance and related legal issues. She establishes relationships between local lawmakers and advocates, educates on effective lobbying strategies, and uses her legal background to further serve the nonprofit members of the Nebraska Civic Engagement Table.
Like all Commentary here on The Rural Review, this post expresses the personal opinions of the author.
The Native American Graves Protection and Repatriation Act (NAGPRA) made headlines (see, for example, here, here, and here) in early 2024 as many major American museums closed exhibits and entire wings in order to comply with new regulations governing the possession and display of Native American cultural artifacts and funerary objects. But the recent regulatory changes have the potential to affect more than museum displays—they may give reservation residents a stronger say in what the government does on their land.
NAGPRA, an act focusing on excavating and managing Native American artifacts and remains, was passed in 1990 to ensure strong protections and respect for remains and related items. The Act recognizes that human remains of any ancestry “must at all times be treated with dignity and respect,” and encourages an ongoing dialogue between tribes, museums, and agencies. NAGPRA has been essentially unchanged since its passage despite many critiques from activists and those within both the scientific and Native American communities. However, new regulations that took effect in early 2024 are shaking up the scientific, Native American, and museum communities.
In late 2023, the Department of the Interior announced that NAGPRA would be getting a revamp. One of the major rule changes provides that federal agencies and organizations must prepare what is called a “plan of action” prior to any activity that is likely to result in the discovery or excavation of human remains or cultural items. In developing this preemptive plan, the federal agency must consult any lineal descendants who may have geographic links to the area and any Indian tribe with potential cultural affiliation.
This new consultation process may give rural Indigenous communities more say in whether to approve or deny certain projects within their territories. Native American reservations, which have some of the worst housing needs in the United States and often suffer further disenfranchisement due to their rural settings, need all the bargaining chips they can get to enrich their communities. Thus, the plan of action process may serve as just the tool needed to benefit those living near proposed government projects.
The Basics of NAGPRA
NAGPRA was enacted in response to calls to reform archaeological practices regarding the treatment of Native American artifacts and ancestors. Heavily publicized incidents—including a court case where a lineal descendant attempted, but failed, to sue a developer for turning a burial mound with hundreds of his ancestors’ remains into a development, two major burial mound lootings in 1987 and 1988, and other cases of persistent protesting—gained Congress’s notice.
When drafting, Congress balanced scientific interest in archeological research with the continuing spiritual reverence Native Americans and others have regarding ancestral remains. The final Act had two goals: protecting Native American burial sites on federal and tribal lands and establishing a process to inventory and repatriate already-stolen Native American ancestors and funeral objects.
In practice, NAGPRA requires that if a federal agency or organization (like a museum, University, or even a high school or grade school) has an item that could be linked to a federally recognized tribe and that group has requested its return, the agency or organization must do so. This process, in practice, was riddled with hurdles, not only by placing the burden of request and establishing proof of relation on the tribe, but also because possessing institutions had little incentive to comply, with less than $60,000 in fines ever being issued.
The increasingly widespread understanding of NAGPRA’s prior ineffectiveness, in tandem with in-depth reporting through ProPublica’s Repatriation Series, garnered the government’s attention yet again thirty-two years after the Act’s initial passage. Agencies and museums held (and still hold) thousands of sets of Native American remains. Universities often find unmarked boxes containing Native American sacred objects and ancestors. And, tribes and tribal members often experience both emotional and financial hardships trying to get ancestors and artifacts returned.
NAGPRA Today and What It Means for Indigenous Communities
The recent regulatory changes include the broadening of acceptable categories to allow tribes to present cultural evidence to claim artifacts and ancestors, clearer timelines for response, and, notably, easy-to-follow roadmaps for agencies and institutions seeking to comply with the new regulations. For example, Subpart B — Protection of Human Remains or Cultural Items on Federal or Tribal Lands outlines the requirement that when a federal agency is responsible for a discovery or excavation, a plan of action must be in place either before or after the fact (retroactive plans are needed if the finding was unintentional).
Proactively, if the agency determines based on previous studies, discoveries, or excavations in the general proximity of the planned activity that there is a likelihood of making a significant finding, then the agency must consult with lineal descendants. This includes any person who can either trace ancestry via traditional Native American kinship systems or common law systems of descent to a known individual whose human remains, funerary objects, or sacred objects are subject to the Act. The individuals consulted will have the option to concur, disagree, or not respond to the proposed plan of action. There is no guidance within the Act as to what happens if all parties disagree with the plan, but ideally, it will be collaboratively created to address the parties’ wishes.
For reservation residents, the requirements of the Act might offer more control over what sort of federal projects go through their land. If those who have relevant links to the area are consulted, they can now have a concrete say in how they would like, for example, new roads or similar infrastructure to impact their land.
This also gives these communities the option to benefit from potential findings. On a reservation without its own museum, for example, the findings may warrant opening one. Instead of losing an artifact or ancestor to a national museum, the community may decide to treat the findings pursuant to their own wishes, including potentially returning their ancestors to a final resting place.
This piece of the new NAGPRA regulations is small, yet mighty, and may be a key instrument in allowing communities to have a greater voice in what impacts their land. By listening to those who have a close relationship with the area, the NAGPRA consultation process allows those within rural areas, including Indian reservations, to participate in the process and perhaps even help determine whether or not the plan takes place at all.
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