The American Museum of Natural History (AMNH) is covering up displays and emptying cases in its Great Plains and Eastern Woodlands galleries to begin the process of following new regulations pertaining to the 1990 Native American Graves Protection and Repatriation Act (NAGPRA). The new rules depart completely from the act’s original intent to “provide for the protection of Native American graves” and “address the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations to Native American cultural items, including human remains, funerary objects, sacred objects, and objects of cultural patrimony.”

NAGPRA was enacted to repatriate human remains and certain artifacts to modern tribes with direct ancestral links to past tribes. Descendancy, also referred to as lineal descent and cultural affiliation, was to be determined through a “preponderance of evidence” (a greater than 50 percent chance that the claim is true), using data from geography, kinship studies, biology, archaeology, anthropology, linguistics, folklore, and history. Also considered evidence was oral tradition coming from modern tribes. All evidence could be challenged and was given equal weight.

It’s fair to say that NAGPRA has been generous to Native American tribes by allowing oral tradition to be used as evidence of ancestral ties to the past, since oral tradition contains creation myths, supernatural tales, anachronisms, and miraculous events. Coming from other religions, such materials are usually not considered in legal cases. Thus, retired attorney James W. Springer and I, in our 2020 book Repatriation and Erasing the Past, pointed out that NAGPRA may be violating the Establishment Clause of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion.” This clause is meant to prevent the federal government from favoring any specific faith; it is charged to treat all religious evidence equally.

Yet, even with the act’s long-standing generosity toward oral tradition, tribal repatriation activists and their allies were unsatisfied with NAGPRA and its terms allowing for the continued research, curation, and display of mostly unaffiliated human remains and artifacts. Nearly all affiliated human remains and related artifacts—by 2020, 91.5 percent of them—have already been repatriated. Critics have focused on the number of materials not yet repatriated, but these consist mainly of unaffiliated materials.

Dissatisfaction among repatriation activists had spurred occasional regulatory changes to NAGPRA. The latest, which went into effect this year, include the deletion of the term “culturally unidentified,” which means that all human remains and artifacts are now vulnerable to repatriation—even discoveries such as the 11,500-year-old Alaskan child named Sunrise Girl, whose DNA couldn’t be matched with DNA from any of the 167 ethnic groups the researchers tested. Sunrise Girl likely represents an individual from a long-gone Beringian tribe.

The summary of NAGPRA’s latest regulatory revision also states that “museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.” Previously, “oral tradition” was given the same weight as scientific and historical evidence; now, it trumps scientific and historical evidence. “Traditional knowledge” was not even mentioned in previous versions of NAGPRA. Native American traditional knowledge is a new term meant to encompass more than just oral tradition. According to the new regulations, Native American traditional knowledge, which is considered “expert opinion,” is defined as “covering a wide variety of information, including, but not limited to, cultural, ecological, linguistic, religious, scientific, societal, spiritual, and technical knowledge.” Further, “Native American traditional knowledge . . . is not required to be developed, sustained, and passed through time”—in other words, it can change at any time. And yet, because traditional knowledge is often “safeguarded or confidential,” its thus cannot be compared with previous decisions based such knowledge—in fact, it cannot be questioned at all.

The regulatory changes will affect museum displays and the management of museum collections. The new section “Duty of Care” states that museums must “incorporate and accommodate the Native American traditional knowledge . . . in the storage, treatment, or handling of . . . cultural items.” Museums must “obtain free, prior, and informed consent . . . prior to allowing any exhibition of . . . cultural items.” Curators need to “consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations on the appropriate storage, treatment, or handling of human remains or cultural items.” This may sound like respectful practice, but since museums “must defer to the Native American traditional knowledge,” the consequences will be devasting. Even the Society for American Archaeology, which supports NAGPRA, expressed concerns that these changes could reach too far into museum collections’ management processes.

We can expect bare display cases because some objects will be deemed too “spiritually powerful” to display. AMNH curators have already made similar decisions recently in the renovation of the Northwest Coast Hall. For instance, curators decided not to display a bird bone whistle because Nuxalk elders warned that the whistle could be used as a “summoning tool for supernatural beings.” And Haida tribal members instructed museum staff not to put a headdress on view or even handle the headdress because of the “danger” that they’d encounter—after all, one must “be wary of any object that incorporates human hair.” In other instances, absurd narratives, such as those found in the Northwest Coast Hall, will be taught to children as facts. Children will be told that objects have spirits, that Native Americans came from supernatural animals, and that shamans’ masks contain powers that one should fear.

The renovation process will be slow and costly. The Northwest Coast Hall renovation cost $19 million and took five years to complete. Under the new NAGPRA regulations, only museum staff are bound by timeframes—the Native American tribal members can take as much time as they want.

Perhaps most ominously, NAGPRA may eventually extend its reach to art museums. Once all the natural history museum exhibits have been remodeled and the tribes have taken back most of the interesting objects, Native American repatriation activists will likely not be satisfied. New targets are sure to include art purchased from contemporary Native American artists. In a recent NAGPRA information session about the new regulations, art museum curators were told to consult with tribes over the display of art created by contemporary Native American artists that had been recently purchased for display. This may lead to art museum curators deciding to avoid NAGPRA hassles by ceasing to buy or display the works of Native American artists. This will harm the artists most; the museums will find other works. 

As NAGPRA drifts further and further from its original goal, its reach will extend to the destruction of bone casts, the repatriation of ethnographic photos of tribes, and the burning of historic documents. A movement to do such things is already on its way. Unless it’s stopped, NAGPRA will destroy American museums, and with them an invaluable means to understand the past.

Photo by Andrew Lichtenstein/Corbis via Getty Images


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