What would it look like if Native Americans started obsessing over the white man the way so many non-natives obsess with tacky and falsely crafted art pieces and objects they associate with Native cultures? Would stained glass cell phones hang in windows instead of dream catchers? Would paintings of the pope on velvet be stretched onto hoops with rosaries of varying colors, shapes and sizes dangle from it and be hanging on the walls next to framed prints of symmetrical and monochromatic cheaply crafted housing developments with the bordered and centered title of "dwellings"? Would they line their shelves with plastic McDonald's cups, displaying the pottery of the white man? Would they raid churches for the thurible (incense pot)), communion chalice and alter to sell them to private collectors? Would they paint their faces white on Halloween and spout words of genocide? Would they go into graveyards and cemeteries unearthing bodies at will taking wedding bands, watches, jewelry and other items and then sell the decomposing corpses to museums for display all in the name of science? Would they decapitate the body of JFK to use his rotting fragmented skull as an ashtray for an exclusive university social organization? “We Americans are fascinated by the Native Americans, those who inhabited “our” land long before we arrived. But does that make our collecting and viewing of artifacts in museums our “right”? Does it justify the desecration of the ancestors”( NAGPRA -- A Blessing or a Curse).
The laws and regulations in the United States concerning human remains, burial sites, burial grounds, items, artifacts, excavations and exhumations are all together complex and confusing. There are several laws that state that the possession of these things is in fact illegal and there are other laws that state the contrary and others still that cover the many varying circumstances around the possession, ownership, sale and trade of these items. In the midst of all this confusion and constant presence of cultural desecration came the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990. This act made efforts to protect the spiritual and ceremonial rights surrounding the funerary practices of the indigenous populations of the United States. Though as with any act there are flaws but this particular piece of legislation takes a very serious forward step on the path of moral and ethical justice.
For some reason it seems Native Americans have fallen into the category of “ancient history” as far as the world is concerned, somehow ignoring the 4.1 million Native Americans living in the United States according to the 2000 Census (2000 Census). Because of this categorization and the fact that most Non-Natives hold Native culture within the same regard as dragons and wizards making them mythical creatures or beings the remains of these peoples had become something like Atlantis or King Tut. Either intentionally exhumed or discovered through excavation almost all Native American remains and the items and objects that were found with them went into museums and were put on display or sold into private collections at ridiculous prices and placed on mantels as chachkies. One very famous example of this is the rumored possession of Geronimo, a leader of the Apache’s skull by the secretive Skull and Bones Society at Yale University. It is also rumored that his skull has morbidly been turned into an ashtray for the self-entitled and indulgent young men of this organization.
Because of the aforementioned reasons listed NAGPRA was enacted. “The Federal Native American Graves Protection and Repatriation Act (NAGPRA) requires museums to acknowledge legitimate tribal claims on ancestral remains and sacred objects and to repatriate those items when cultural affiliation to specific tribes is established. Under the law, museums were required to submit an inventory of their Native American collections to the National Parks Service by 1996, and classify items within those collections as “culturally affiliated” or “culturally unidentifiable.” Culturally affiliated items would then be repatriated to tribes, and museums will keep “culturally unidentifiable” remains and artifacts until National NAGPRA determines their final disposition. The law also specifies a process whereby tribes can challenge museum classifications; those challenges will succeed or fail based upon the “preponderance of the evidence.” Evidence can be geographic, kinship, biological, archaeological, linguistic, folkloric, based on oral tradition, historical, anthropological, etc”( NAGPRA & UCB FAQ). NAGPRA has also set out guidelines for dealing with any intentionally excavated remains or the unintentional discovery of Native American remains through legal land excavation. For these instances NAGPRA has established a priority “right of possession” list that states the pecking order for who can lay claim to any remains, items or objects found. The priority of control or ownership in order goes to lineal descendents, the Indian tribe or Native Hawaiian organization on whose tribal land the discovery was made on, the Indian tribe or Native Hawaiian organization with the closest cultural affiliation that states a claim for the discovery, the Indian tribe that has been legally recognized as having previously occupied the area of discovery, the Indian tribe that has the strongest demonstrated relationship and states a claim for such remains or objects or to be disposed of in accordance to regulations and ultimately given back to the hands of science (NAGPRA). The one area that NAGPRA has absolutely no power is in private holdings. NAGPRA only applies to federally funded projects, museums and lands, when it comes to private lands and private collections they have almost no say at all.
Some time in the very early 1900’s on a farm approximately four miles outside of Salina, Kansas two armature archaeologists uncovered the large and extensive burial grounds of an earlier Pawnee people. The remains of more than 140 individuals were uncovered. Though ownership of the farm where these remains were found passed hands several times the site remained a popular tourist attraction for 15,000-20,000 visitors per year for over fifty years. The “Indian Burial Pit” as it was deemed accrued a gross income of $20,000 annually towards the latter half of its operation. In 1984 a curious and concerned attendee complained of the grotesque nature of the site along with it being culturally sacrilegious and insensitive (SjoborHammer). In 1989 a government issued answer would be received concerning this site. What has been often referred to the “Treaty of Smoky Hill” was issued mandating that all remains be re-entombed and the site be closed as well as a state wide demand for the repatriation of indigenous remains (SjoborHammer). This same year the National Museum of the American Indian Act was imposed (National Museum of the American Indian). “The act required the Smithsonian to create and carry out an institution wide repatriation policy regarding Native American human remains and certain cultural materials. The NMAI Act requires Smithsonian museums to inventory, identify, and consider for return—if requested by a Native community or individual—American Indian, Alaska Native, and Native Hawaiian human remains and funerary objects (National Museum of the American Indian). It is clear that these two influential acts set the tone for the enactment of NAGPRA with its greater reach in the short two years to follow.
To understand the positive and negative intricacies of NAGPRA it is important to examine the laws and regulations regarding Non-Native remains in the United States. The first thing to deal with is the proper ownership of the land and how that relates to any remains interred within. “The Common law of human remains and burials in the U.S., for example, is derived from the common laws of England, Spain, and France. While each of these contributing sources has some differences, most notably in the succession of real estate upon death or dissolution of marriage, they are united in the regard for human remains and burials. While landowners typically have rights to all that is embedded in their land, all of the common law sources regard human remains and “quasi-property”- that is, not subject to ownership. The descendents retain right of control and access and obligations for care in their deceased ancestors, regardless of where they are buried” (Cassman). In contrary to this rule of common law would Native Americans also not have prevailing claim and obligation to various burial sites not on private lands as opposed to government first tribe/descendants second? As stated previously private lands and holdings lie outside of the jurisdiction that NAGPRA covers. There is one way to get around private lands and that is that the lands or site have to be deemed nationally historic and listed on the national register. Though not just any section of land or location can become considered nationally historic, the National Historic Preservation Act has set up these qualifiers: “by association with events that have made a significant contribution to the broad patterns of our history, properties that have an association with the lives of persons significant in the nation’s past, buildings that embody distinctive characteristics, the work of a master, possess high artistic value or technology and sites that have yielded or may be likely to yield information important in history or prehistory” (National Historic Preservation Act of 1966 (16USC470)). The NHPA does have limitations in that it “is a planning compliance law and does not have enforcement provisions [but it] does require that exhumations and excavations are strictly undertaken to yield information in the nation interest, giving greater value to society but always remaining property of the government” (National Historic Preservation Act of 1966 (16USC470)). I wonder why when there are so many laws and regulations concerning historical sites, lands and landmarks why has it become the mainstream to unearth Native American remains and not those of early Americans, non-indigenous historical figures or settlers?
The next thing to consider is what are the practices that have been set forth for the exhumation of Non-Natives that differ from Natives? According to the code of federal regulations the “interment of a person’s remains [are] considered permanent” (12.6 - Disinterments and Exhumations). Why is this code only seemingly true for Non-Natives? This same code also states that “disinterment and removal of remains are allowed only for the most compelling of reasons”, which does not include scientific curiosity (12.6 - Disinterments and Exhumations). Under this same code the list of obligations to be met in order to proceed with an exhumation is as follows: “compliance with State and local health laws and regulations; engaging a funeral director; recasketing the remains; rehabilitation of the gravesite according to conditions established by the superintendent; providing the superintendent a notarized affidavit by each living close relative of the deceased and by the person who directed the initial interment, if living, and even though the legal relationship of such person to the decedent may have changed, granting permission for the disinterment; and providing the superintendent a sworn statement, by a person having firsthand knowledge thereof, that those who supplied such affidavits comprise all the living close relatives of the decedent, including the person who directed the initial interment”( 12.6 - Disinterments and Exhumations). According to this code each living relative must be notified of disinterment and a number of them are required to sign off and approve the process. One of the main arguing differences for this debate in concern for Natives and Non-Native decedents is that most of the remains of Native Americans that are called to question do not have a headstone to mark the grave and identify the person there buried.
With the lacking of said grave marker or stone the remains are then considered to be located outside of a plotted Federal, State or Private cemetery. The Private Cemeteries Act offers some light on this issue. “Anyone who intentionally, willfully or knowingly destroys, mutilates, injures, or removes human skeletal remains or human burial grounds is guilty of a felony. All undiscovered human remains over 50 years old, outside of a plotted cemetery, are dealt with according to this Act. In cases where remains are discovered and the remains are not Native American, provisions developed by the State Archaeologist will be followed. If probably tribal identity can be determined, the State Archaeologist and the Indian Affairs Council will decide if they should be turned over to the contemporary tribal leaders for disposition. If the State Archaeologist and Indian Affairs Council decide it necessary the remains may be studied prior to return” (Anfinson). It is interesting that only Native American remains that have been interred greater than fifty years are of interest to science and can therefore be at the discretion of the government.
Along with the loopholes for protecting the rights of Native American decedents and their descendants there are also loopholes within NAGPRA as well. The first as already having been covered is its lack of extension to private lands and holdings. Though it is widely considered grave robbing to possess such items these things should also be covered in the act as well. The second is that museums are allowed to continue dominant possession of the items in their collections that are considered “unidentifiable”. There have been many cases in which several museums have made little effort to properly identify many items as an underhanded tactic to have them remain in their possession. According to the Government Accountability Office (GAO) “Adding to the seriousness of that situation, the report raised several concerns centering on the national NAGPRA office’s administration of the law. These problems include inadequate resources, poor record keeping, and questionable decision making. Further, the report suggested NAGPRA office officials have sometimes manipulated the composition of the seven-person NAGPRA review committee, which is responsible for overseeing tribal and other concerns with processes involving the law”( GAO Finds Major Federal NAGPRA Snafus | Indian Country Today | Archive). In correlation to this often times agencies and museums muddle records for their own benefit. “Agencies are required to permanently document their repatriations, but they are not required to compile and report that information to anyone. Only three agencies--the Corps, the Forest Service, and NPS--centrally track their repatriations. These three agencies, however, along with the other federal agencies that have published notices, generally do not report any of their data on repatriations to National NAGPRA or to Congress. As a result, policymakers, Indian tribes, and Native Hawaiians organizations do not have access to readily available information about culturally affiliated NAGPRA items that have not been repatriated. According to officials, the remaining items have not been repatriated for a variety of reasons, such as a lack of repatriation requests and financial constraints” (U.S. GAO).
In conclusion, there are numerous positive aspects to NAGPRA and what it stands for. No longer will it be legally allowed that culturally identifiable remains will be put on display without substantiating laws and regulations. On the other hand there are still many areas in which NAGPRA is lacking and desperately needs improvement. It is sick and disheartening that this nation continues to regard Native Americans as “chachkies” and ultimately lesser beings as depicted by inadequate laws and regulations for the departed. NAGPRA is an awesome step in the right direction but still has areas that are lacking.
Works Cited:
"12.6 - Disinterments and Exhumations." VLEX. Web. 15 Dec. 2010. <http://cfr.vlex.com/vid/12-6-disinterments-and-exhumations-19769228#ixzz15Vn3bUHb>.
"2000 Census." Web. 15 Dec. 2010.
Anfinson, Scott. "State Archaeologist’s Procedures for Implementing Minnesota’s Private Cemeteries Act (MS 307.08)." Minnesota Department of Administration, June 2008. Web. 15 Dec. 2010. <http://www.osa.admin.state.mn.us/documents/PrivateCemeteriesActProcedures.pdf>.
Cassman, Vicki. "Human Remains: Guide for Museums and ..." Google Books. Web. 15 Dec. 2010. <http://books.google.com/books?id=F6D4T-jsizcC&pg=PA223&lpg=PA223&dq=united states law on human remains&source=bl&ots=i_Reu-p4WL&sig=E4oZ8VQZtx9T0UXwftZ7igZRYKI&hl=en&ei=rxDSTJf6GI6lnQeEstUr&sa=X&oi=book_result&ct=result&resnum=7&ved=0CDIQ6AEwBjgK#v=onepage&q=united states law on human remains&f=false>.
"GAO Finds Major Federal NAGPRA Snafus | Indian Country Today | Archive." Indian Country Today. Web. 15 Dec. 2010. <http://www.indiancountrytoday.com/archive/GAO-finds-major-federal-NAGPRA-snafus-101155324.html>.
"NAGPRA -- A Blessing or a Curse?" Anthro4n6. Web. 15 Dec. 2010. <http://www.anthro4n6.net/nagpra/#nagpra>.
"NAGPRA & UCB FAQ." NAGPRA & UCB FAQ. Web. 15 Dec. 2010. <http://nagpra-ucb-faq.blogspot.com/>.
"National Historic Preservation Act of 1966 (16USC470)." U.S. National Park Service - Experience Your America. Web. 15 Dec. 2010. <http://www.nps.gov/history/local-law/nhpa1966.htm>.
National Museum of the American Indian. Web. 15 Dec. 2010. <http://www.nmai.si.edu/subpage.cfm?subpage=collaboration&second=repatriation>.
SjoborHammer. "YouTube - "Bones of Contention": Battling for Human Dignity at the Salina Indian Burial Pit." YouTube - Broadcast Yourself. Web. 15 Dec. 2010. <http://www.youtube.com/watch?v=q2ZcJTsyMbU>.
"U.S. GAO - Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act." U.S. Government Accountability Office (U.S. GAO). Web. 15 Dec. 2010. <http://www.gao.gov/products/GAO-10-768>.
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