NAGPRA and repatriation

Every other case in this archive begins with a person who owned things and then died. This one begins with the opposite: people whose remains were taken, catalogued, and kept, in institutions, for generations, by a legal system that treated them as specimens rather than as anyone's ancestors.

The scale is the part that is hard to absorb. As of ProPublica's reporting on federal repatriation data, 617 institutions still hold the remains of 104,539 Native American ancestors, with roughly thirty thousand more at the Smithsonian, which is covered by a separate 1989 statute rather than by NAGPRA. Alongside them are several hundred thousand funerary objects — the items buried with a person, which is to say the items a family chose.

The Native American Graves Protection and Repatriation Act — Pub. L. 101-601, enacted November 16, 1990, codified at 25 U.S.C. §§3001–3013, with a criminal trafficking provision at 18 U.S.C. §1170 — is the statute that addresses it. It is not a probate statute and it does not pretend to be. But it answers the questions a probate court would ask, in a context probate cannot reach: who has standing, what must be inventoried, who decides, and what is owed.

The National Park Service's statement of the principle is one sentence, and it is the right place to start: human remains of any ancestry “must at all times be treated with dignity and respect.”

What NAGPRA requires, and of whom

NAGPRA reaches federal agencies and museums and institutions that receive federal funding — which in practice means nearly every university and public museum in the country. It divides what it covers into categories, and the categories matter because they carry different procedures.

• Human remains, and associated funerary objects — items buried with an individual whose remains are also held.
• Unassociated funerary objects — burial items where the remains themselves are elsewhere or gone.
• Sacred objects — items needed by traditional religious leaders for the practice of traditional religion.
• Objects of cultural patrimony — items of ongoing historical, traditional, or cultural importance to a group, which no individual could have alienated in the first place.

Institutions must compile inventories of human remains and associated funerary objects and summaries of the other categories, consult, and repatriate on request to lineal descendants, Indian Tribes, and Native Hawaiian organizations. NAGPRA also governs new discoveries on federal and tribal lands, provides grants to support the work, and authorises the Secretary of the Interior to assess civil penalties against museums that fail to comply. 18 U.S.C. §1170 makes trafficking in Native American human remains and cultural items a federal crime.

The last category is the conceptually interesting one. An object of cultural patrimony is defined by the fact that no single person had the authority to sell it. That is a rule about the limits of individual ownership, written into federal law — and it is the exact inverse of the premise underneath every will in this archive.

The Ancient One, and twenty-one years

In July 1996, human remains were found in shallow water along the southern shore of Lake Wallula, the section of the Columbia River pooled behind McNary Dam at Kennewick, Washington. They were approximately 8,500 years old. Scientists called the individual Kennewick Man. The Columbia Plateau tribes called him the Ancient One, recognised him as an ancestor, and sought to rebury him.

Eight anthropologists and archaeologists sued for the right to study the remains. In 2002 the federal district court ruled in their favour, and in Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004) the Ninth Circuit agreed — holding, in substance, that the remains did not qualify as “Native American” within NAGPRA's definition, because the record did not establish a relationship between remains that old and a presently existing tribe, people, or culture.

The legal result was that a statute written to protect Native ancestors did not protect this one, because he was too old to prove he was who the tribes said he was. That is not a caricature of the holding. It is the holding.

Then the evidence changed. In 2015, genomic analysis found the Ancient One more closely related to modern Native Americans — and to Columbia Plateau tribes in particular — than to any other population. In April 2016, after independent confirmation, the Army Corps of Engineers formally recognised the remains as Native American.

The NAGPRA process was still running when Congress ended it directly. In December 2016, a provision of the Water Infrastructure Improvements for the Nation Act ordered the transfer of the remains and required repatriation within 90 days. On February 18, 2017, in a private ceremony attended by roughly 200 tribal members and staff, the Umatilla, Yakama, Colville, Wanapum, and Nez Perce reburied the Ancient One at an undisclosed location on the Columbia Plateau — the day after the remains were handed to tribal leaders at the Burke Museum in Seattle.

Twenty-one years, three courts, an act of Congress, and a genome. The tribes' position at the beginning and at the end was the same one.

The regulations that closed the loophole, and some galleries

The Department of the Interior published revised NAGPRA regulations on December 13, 2023, effective January 12, 2024, at 43 CFR Part 10. They did four things that changed institutional behaviour immediately.

They eliminated the category of “culturally unidentifiable human remains.” That classification had functioned, in a great many collections, as a permanent holding pen: an institution that concluded it could not determine affiliation was under no obligation to return anything. ProPublica's reporting documented how widely it was used.

They require deference to Native American traditional knowledge in determining cultural affiliation, rather than treating scientific evidence as the only admissible kind.

They created a duty of care. Under 43 CFR 10.1(d), museums and federal agencies must consult lineal descendants, Indian Tribes, and Native Hawaiian organizations about the storage, treatment, and handling of remains and cultural items — and must obtain consent before activities that could cause physical or spiritual harm, which includes exhibition and research.

They imposed deadlines, running from 14 days to five years depending on the obligation, for summaries, itemised lists, and inventories.

The visible consequence arrived within weeks: major museums covered or closed displays containing affected items while consultation caught up. That has been criticised — from one direction as institutional over-correction that removed public access and research opportunity, and from another as the overdue consequence of thirty years of non-compliance. Repatriations in 2023 reached a record, with institutions returning roughly 18,000 ancestors in a single year. Both things are true at once.