"Is NAGPRA Irretrievably Broken?"

“Historian Ron McCoy exposes the cracks in federal law:

Humpty Dumpty sat on a wall,

Humpty Dumpty had a great fall;

All the king’s horses and all the king’s men

Couldn’t put Humpty together again.

In 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) became U.S. law.[1] For its advocates, NAGPRA represented a watershed in “decades of struggle by Native American tribal governments and people…to retrieve stolen or improperly acquired religious and cultural property for Native owners.”[2]

NAGPRA.jpg

NAGPRA created a mechanism for effecting the repatriation of what it calls “cultural items” from federal agencies and “public and private museums that have received Federal funds.”[3] Under NAGPRA, an institution’s possession of an item included in its (sometimes overlapping) categories of “objects of cultural patrimony” and “sacred objects” is illegitimate from the get-go. Such a piece, by its very nature, cannot be legitimately alienated from the tribal milieu.[4] Hence the need to right earlier wrongs through repatriation.

Under the federal government’s aegis, NAGPRA established a process whereby institutions work with group and individual claimants to establish whether a piece is, in fact, an object of cultural patrimony and/or sacred object.[5] If the parties agree this is the case, a “Notice of Intent to Repatriate Cultural Items” is published in the Federal Register. Typically, this notice specifies the relevant item’s status under NAGPRA, affirms the institution’s recognition of the claim’s legitimacy, and identifies to whom the piece will be repatriated pending the filing of a competing claim by a certain date. NAGPRA contains no provision for the government or institution to follow up on a repatriated object’s final disposition, nor are successful claimants obliged to provide such information.

If the controlling premises of NAGPRA are accepted, the reason for this is logical: Since the transfer of a qualifying object from the tribal world was an illegitimate act, the custodial institution has no standing or interest in the piece’s location or status following repatriation. As for successful claimants, NAGPRA encourages them to view repatriation as the legitimate restitution of an object for which accountability, beyond the fact of its return, is unnecessary. While some view this situation as a great and good development, others find it a form of prestidigitation – now you see it, now you don’t.

As someone who has observed NAGPRA’s development over the years from an anthropologist’s and historian’s perspective, I have grown increasingly concerned about its involvement in that liminal area where the sacred and profane mix and mingle. So it seems to me high time to ask, nearly three decades on, whether, with respect to the repatriation of what it calls “sacred objects,” NAGPRA has drifted so far from its original intent that it is, like Mother Goose’s Humpty Dumpty, irretrievably broken.[6]

In the Beginning…

NAGPRA did not spring forth fully formed in 1990, like Athena from Zeus’ brow. In politics, as in comedy, timing is critical, and the end of the twentieth century was probably an ideal time to respond to significant shifts within American culture about acceptable attitudes towards tribes and tribal peoples, as well as their material and spiritual heritage.

These shifts were linked to changing perceptions about the legacies wrought by “that extraordinary European conviction of their right to appropriate the world.”[7] By 1990, questions swirled through public discussion about the approaching commemoration, only two years hence, of Christopher Columbus’ “discovery” of a “New World.” Just the prospect of Columbus Day 1992 prompted uncomfortable questions about the causes and effects of cultural oppression.[8] This dynamic mixed with a renewed enthusiasm for ideas about pre-Columbian America as an unspoiled Arcadian set-piece paradise.[9] To such ethereal notions was added a growing fascination for a kind of homegrown creationism, coupled with a propensity for accepting presentism’s comforting, anti-historical embrace.[10]

If ever an upcoming historical anniversary came loaded to the brim with political and cultural dynamite, this was it.

By the time the Columbian quincentenary was on the near horizon, the dominant culture seemed willing to exhibit increased concern for tribal people’s experiences, interests, and sensibilities.[11] In 1990, a year after acknowledging this emerging reality by voting for the National Museum of the American Indian Act, Congress passed NAGPRA.

NAGPRA represents a convergence of interests and forces that took decades to gather enough political clout to put a truly transformational law onto the books. One element at play in this dynamic was the widespread, growing awareness of the depth of suffering tribal peoples experienced when they came up against the forces unleashed by Manifest Destiny. It became clear, for example, that a significant part of the nation’s legacy included a “massive property transfer” from Native America to the dominant culture, which “invariably included some stolen or improperly acquired Native sacred objects and cultural patrimony.”[12]

Even if those who crafted NAGPRA may not have seen it as a cure-all for perceived ills, they surely hoped to establish broadly-acceptable, easily-understood, unambiguous guidelines for attaining the goal of returning certain types of materials to the groups and individuals to whom the new law mandated they rightfully belonged. In other words, NAGPRA’s legislative parents anticipated that, as a tool of public policy, this law would answer more questions than it raised when requests for repatriation raised sticky questions about objects of cultural patrimony and sacred objects.

NAGPRA Emerges

Questions about the meaning of the phrase “Native American cultural patrimony” arose during the legislative proceedings that led to NAGPRA’s promulgation. The term “cultural patrimony” is susceptible to such broad interpretation that one might be excused for wondering if it was even possible to come up with a workable, utilitarian definition. The U.S. Senate’s Select Committee on Indian Affairs (“Senate Committee”) attempted to clarify matters with respect to NAGPRA’s original intent.

Basically, “cultural patrimony” was intended to refer “only [to] those items that have such great importance to an Indian tribe…that they cannot be conveyed, appropriated or transferred by an individual member.” The Senate Committee went on to state: “Objects of Native American cultural patrimony would include such items as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian tribe.”[13]

The types of objects specifically mentioned – the wooden carvings of the Zunis’ twin gods of war and the mnemonic strings, or belts, of purple quahog and white channeled whelk shell wampum beads kept by the Iroquois Confederacy – rank as conspicuously important objects of veneration within their own cultural milieus. One could reasonably conclude that comparable pieces might include the Sacred Buffalo Hat of the Northern Cheyenne, Lakota Sacred White Buffalo Calf Pipe, and Northern Arapaho Flat Pipe. (Or, in a non-NAGPRA, yet related, context, the Ark of the Covenant.)

When it comes to repatriating objects of cultural patrimony, NAGPRA set the bar at a high level. So it was fitting that NAGPRA’s initial repatriation notice dealt with a Zuni war god carving, which was declared both a “sacred object” and “object of cultural patrimony.”[14] Since then, certain types of objects have found themselves occupying something of a fast-track when it comes to NAGPRA repatriations.[15]

It would be difficult to argue repatriations of this type of material are not in accord with the purpose, goals, and spirit of NAGPRA. But how does one go about assessing the qualitative weight given to claims for less well-known (or even unknown) objects of power and devotion, those NAGPRA calls “sacred objects”? Therein, as Shakespeare’s Hamlet observed, lies the rub. The Senate Committee’s observation on this point deserves quoting at length:

Members of the scientific community express concern that if Native Americans are allowed to define terms such a “sacred object” the definition may be so broad as to arguably include any Native American object. In an effort to respond to this concern, the Committee has carefully considered the issue of defining objects within the context of who may be in the best position to have full access to information regarding whether an object is sacred to a particular tribe….Many tribes have advanced the position that only those who practice a religion or whose tradition it is to engage in a religious practice can define what is sacred to that religion or religious practice. Some have observed that any definition of a sacred object necessarily lacks the precision that might otherwise characterize legislative definitions, given that the definition of sacred objects will vary according to the tribe or religious practice engaged in by the tribe, and pointing to the difficulty that would arise if one were charged with defining objects that are central to the practice of certain religions, such as defining the Bible or Koran.[16]

The threshold a piece must meet to qualify as a sacred object under NAGPRA is lower than for objects of cultural patrimony. From NAGPRA’s perspective, “sacred objects” are “specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.”[17] Thus significant differences obtain between the two categories, although they sometimes overlap.[18]

NAGPRA does not put the onus of improper action on those who caused a sacred object to be removed from the tribal milieu; the removal of an object of cultural patrimony from the tribal world is, however, an illegitimate act. There is no indication in NAGPRA’s definition of sacred objects, as there is in its definition of objects of cultural patrimony, that such pieces are anything other than “property owned by an individual tribal or organization member.”[19]

NAGPRA does not claim — as it does with objects of cultural patrimony — that sacred objects are necessarily the property of a group, or that sacred objects cannot be personal property. Objects of cultural patrimony are repatriated to a group because they belong, as they have always belonged, to the group and not to the individual or individuals who caused them to be physically removed from the group’s sphere. A sacred object, even if the personal property of the individual who caused it to be physically transferred from the tribal world, remains subject to repatriation; not because of the manner in which it left the tribal orbit, but because it is required for the exercise of “traditional Native American religion.”

“Traditional Native American Religion”

This brings up another question: What does NAGPRA mean when it refers to “traditional Native American religions”?

The Senate Committee tried clarifying matters. With respect to “sacred” (as in “sacred object”), it noted “concern [was] expressed that any object could be imbued with sacredness in the eyes of a Native American, from an ancient pottery shard to an arrowhead.”[20] However, “The Committee does not intend this result.”[21]

While one might find that an unambiguous statement, some determinations made under NAGPRA appear to undermine this precept. Examples of these successful, albeit somewhat odd, repatriation claims include the following:

Early in 1997, a NAGPRA repatriation notice dealt with a buffalo scrotum rattle donated to the South Dakota State Historical Society in 1906 by Mary C. Collins, a Christian missionary who left Illinois in 1875 to work at South Dakota’s Oahe Mission near Cheyenne River Reservation.[22] Ten years later, Collins moved to nearby Standing Rock Reservation, where she remained for a quarter-century. At some point, Collins “identified the rattle as having belonged to ‘Elk Head, 9th keeper of the sacred pipe,” meaning the Lakotas’ Sacred White Buffalo Calf Pipe. Nearly a century after Collins’ donation, Elk Head’s great-great-great grandson, “identified this rattle as a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religion by present-day adherents and [he] has requested the rattle be returned to him as [Elk Head’s] lineal descendent.”

Three months later, another repatriation notice dealt with materials housed at the Fruitlands Museum in Massachusetts.[23] In this instance, a Lakota spiritual leader identified thirty-five objects – eleven pipes, nine wooden stems, six buckskin pipe bags, a pair of wooden pipe tampers, four rawhide rattles, two eagle bone whistles, and a shield decorated with rawhide webbing, golden eagle feathers, locks of horsehair and grey fur – as “needed by traditional Lakota religious leaders for the practice of traditional Lakota religion by present-day adherents.” Tribal representatives took the position that all of these objects “were not and are not considered ‘personal property’ but belong to the Lakota People as a whole.” Then, too, the spiritual leader explained that the objects “spoke to him and asked to be brought back to the Lakota Nation.” Although the museum contended, “many of these items could have been made for sale,” it agreed “the spirit of [NAGPRA]…takes precedence over concerns for title.”

A 2011 notice reports that in 1922, Isaac Grasshopper, a Northern Cheyenne veteran of the Battle of the Little Bighorn, traded a “grass seed bag made from a flour sack” and a rawhide rattle decorated with a horsehair tail, eagle feather, and buffalo wool to non-Indian researcher-physician Thomas B. Marquis[24] in return for a used coonskin coat.[25] In 1942, Marquis’ descendants donated a collection of material acquired by their father, including this rattle and bag, to the battlefield.[26] Isaac Grasshopper’s great-great-grandson asserted these objects “are needed by [him]…and his two sons to continue traditional ceremonies.” Thus the way was cleared for the rattle and bag Isaac Grasshopper exchanged nearly a century ago to be repatriated.

In 1957 “the Custer Battlefield Historic Museum Association” — almost certainly the Custer Battlefield Historical & Museum Association,[27] — purchased a trade mirror in a wooden frame decorated with strips of otter fur from Albert Long Jaw, grandson of Long Law, a Northern Cheyenne man.[28] Evidently, Long Jaw used this mirror during the Plains Indian Wars period of the 1870s. At some point, the association donated the mirror to the institution. A repatriation notice was issued based upon efforts by Albert Long Jaw’s son to retrieve the mirror his father sold fifty-four years earlier by getting it classified as a sacred object under NAGPRA.

Although a museum may declare its rightful possession of an object, which a claimant asserts is a sacred object, few appear willing to do so. The reasons for this range from agreement with the claim to concern about adverse publicity. (I once asked a museum representative why his institution agreed to repatriate an object associated with what appeared to be unusually thin evidence offered in support of its sacred quality. “Too much trouble over nothing very important,” was the explanation.)

Repatriations like those set forth above indicate NAGPRA may have lost the thread in what began as a promisingly strong focus on returning objects as Congress intended .

Retroactive Sacredness?

The Senate Committee also dealt with the question of “Native American artisans [who] create objects which could be construed as falling within the definition of sacred object” and whether the law might “adversely impact the trade in Native American artwork.”[29] The answer? “The Committee does not intend the definition of sacred object to include objects which were created for purely a secular purpose, including the sale or trade in Indian art”[30] (emphasis added).

Clear enough, one might think. But here, too, NAGPRA appears to have left the rails. A 2010 notice of intent to repatriate seemed to run directly counter to the law’s intent, as articulated by the Senate Committee.[31] The notice announced plans to transfer 184 “medicine faces” – False Face masks – from the Rochester (New York) Museum & Science Center to the Tonawanda Band of Seneca Indians of New York. Claimants characterized these pieces were both “sacred objects” and “objects of cultural patrimony.” This, despite the fact Senecas carved the pieces specifically for public exhibition between 1935-1941 while working with the New Deal’s Works Progress Administration.[32]

This apparent shredding of some of NAGPRA’s original intent was not an anomalous occurrence. Two years later, another notice of intent to repatriate also focused on that museum’s collection of New Deal-era commercially carved masks.[33] In this instance, the pieces in question consisted of 79 “medicine faces.” Yet again, the masks were classified under NAGPRA as “sacred objects” and “objects of cultural patrimony,” even though they, too, were replica pieces created expressly for public display.

How an object never intended for ceremonial use, one created for public display by paid artists who belong to a tribe, becomes either a sacred object or object of cultural patrimony remains a mystery. It says something deeply unsettling about NAGPRA that pieces created as replicas for educational exhibits during the Great Depression can be classified, nearly seven decades later, as “sacred objects” and “objects of cultural patrimony” subject to repatriation. [34]

Part of the problem with NAGPRA concerns its usage of the term “traditional Native American religion.” This may mean a ceremony believed to have been conducted in the same manner for quite some time; present-day observances bearing little resemblance to previous practices; even an attempt to reignite interest in an abandoned, moribund, or otherwise no longer practiced regimen of religious expression.

A standard precept in the study of human societies centers on the idea that no matter how rooted in tradition they appear to be, cultures are not static but dynamic; change over time is a reliable rule of thumb. Religion, as a part of a society (rather than apart from it) is as susceptible to change as any other cultural component. Yet for all the changes a religion may undergo, one of its sturdiest pillars typically takes the form of an appeal to the weight of authority and the cloak of legitimacy emanating from revered tradition.

This leads to an important question: “[H]ow can an absent object be central and essential to a tradition without the tradition ending or changing?” As Greg Johnson, a professor of religious studies at the University of Colorado, has noted, those making claims for objects they regard as sacred objects and/or objects of cultural patrimony “face the narrative impasse of articulating their communities’ present connections to ancient objects in the face of the objects’ absence from the communities.”[35]

Probing deeper, Johnson concluded that the “weight or narrative expectation under NAGPRA is symptomatic of a tension in modern nation-state jurisprudence and constitutionalism with reference to nondominant subjects.”[36] For a political culture rooted in the kind of modern liberalism born of the eighteenth century Enlightenment, “[r]epatriation laws like NAGPRA cut against the grain…in two ways: first, their primary concern is with ethnic groups rather than with states or individuals, and second, in principle they affirm rather than reject the role of religion (and tradition) as a form of evidence.”[37] Little wonder Johnson characterized this situation as presenting a “conundrum.”[38]

“…But I Know It When I See It”

Around NAGPRA’s tenth anniversary, an anthropologist contributing to a website outspokenly critical of NAGPRA,[39] suggested the law “designated” a “Religious Establishment” he found “wonderfully generalized in character,” one with “a depth of history [that] is more likely to be alleged than documentable.” He concluded “traditional Native American religion” under NAGPRA “is whatever the representative living generations of practitioners say it is.”[40]

That statement’s meaning may be contemplated without undermining the legitimacy of the feeling religious practitioners experience on arriving at the table, temple, arbor, lodge, mountaintop, or any other sacramental arenas or fora. Indeed, the situation is in some ways reminiscent of U.S. Supreme Court Justice Potter Stewart’s comment in Jacobellis v. Ohio (1964). Addressing the question of whether Louis Malle’s controversial 1958 film “The Lovers” (Les Amants) was protected speech or non-protected obscenity, Stewart wrote: “I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”[41]

“But I know it when I see it.” An interesting concept, although a reasonable person could hardly be faulted for wondering whether it falls a bit short of the desired mark in terms of an etched-in-stone legal concept.

Just how would one go about defining “traditional Native American religion” for purposes of NAGPRA? Recall that for generations American Indian religions were actively repressed and their adherents persecuted as a matter of course under federal and state law.[42] As a result, efforts in the latter part of the 20th century that were designed to rectify the situation have frequently seen lawmakers adopt the same keep-your-distance stance toward tribal religions as they customarily take when dealing with mainstream systems of belief.[43]

“I am struck by how much of the discourse about repatriation is couched in the language of therapeutic identity,” public historian Steve Conn has reflected.[44] “There are a number of difficulties here,” he noted, “not the least of which is the collision between the world of the personal and psychological and the world of policy and legislation. After all, can ‘healing’ be mandated by so powerful a body as Congress? Will repatriation be judged a failure if ‘collective mental health’ among Indians does not improve?”[45] Indeed, so much did Conn see repatriation as participating “in the whole culture of therapy and ‘self help’ that has become such a major preoccupation of Americans” that he was reminded of “the language of Oprah Winfrey.”[46] (And, of course, identity politics.)

“Clearly, admitting religious claims as a form of evidence was a profoundly problematic move on the part of legislators,” religious scholar Greg Johnson noted just over a decade ago. “But they have done so. Now courts, indigenous representatives, and scholars must attempt to sort out the implications of this move.”[47]

Before NAGPRA’s enactment, Jonathan Haas, then Curator of North American Archaeology at Chicago’s Field Museum of Natural History, participated in discussions among various stakeholders about how the law should be constructed and how it could be made workable. Haas, who went on to serve as a member of NAGPRA’s Review Committee and assisted in formulating the federal regulations promulgated for the law’s enforcement, provided insight into the legislative process.

“From the museum’s perspective, it was imperative that the language in the law make clear that not all collections were susceptible to repatriation and that it afforded some protection with respect to the property rights of the institutions. Native Americans, in turn, wanted language that would enable them to effectively seek the return of certain kinds of objects that were considered to be of great spiritual and cultural importance. The resulting wording in many sections of the final legislation represented a compromise between the various interested parties. In many cases these compromises were not wholly satisfying to either side. In most areas the results were considered “workable.”[48]

Haas, who wrote those words just a decade into NAGPRA’s existence, concluded that while “the language of NAGPRA may be murky, patronizing, clumsy and unrealistic, the law in many ways is working.”[49]

Today, looking back over nearly three decades of NAGPRA, I would suggest that sentiment, however accurate it may have been at the time, was too optimistic.

“When I Use a Word, It Means What I Choose It to Mean…”

Like many, I have been privileged, thanks to the generosity of spirit displayed by many Native Americans, to observe tribal ceremonies infused with the profoundly sacred. I hope most of us are capable of empathizing with and feeling a common human bond with expressions reflecting a belief in something beyond ourselves alone. This is why I also believe that good, strong cases can and have been made for the repatriation of objects which have no business being in the hands of museums, dealers, or collectors.

Early on, I embraced NAGPRA, believing the standards proclaimed at the outset by its framers established benchmarks, which would be strictly adhered to and rigorously enforced. I hoped NAGPRA could accomplish much that is good and fair and right. I believe it has. I also contend progress down this long, winding road continues. And yet still, a generation having passed, the final destination is neither guaranteed, truly agreed upon, or even known.

Back in 1998, I was invited by the Sicangu Oyate (Rosebud Sioux Tribe) to participate in a conference on NAGPRA issues related to the repatriation of cultural materials sponsored by the National Park Service in Denver. A Lakota elder ticked off a lengthy list of the types of pieces he wanted repatriated to his people. Eventually, he cut to the chase. “We want everything back,” he said. Only then, he explained, would his people regain spiritual and physical health. I do not question that man’s sincerity or the depth of his belief in the need for realizing that hope. If that is the goal, then let us have that discussion within the context of American law.

Over time, NAGPRA seems to have taken on a confiscatory mien, as demonstrated by enforcers’ acceptance of embarrassingly thin evidence in dealing with some repatriation claims. I am deeply uncomfortable with and increasingly skeptical about what appears to be an over-broad interpretation of the term “sacred objects” in applying NAGPRA.

Sometimes NAGPRA seems to resemble Pandora’s box – a jar, actually – immortalized by Greek poet Hesiod in a theodicean account he penned nearly three millennia ago. Upon wedding, Pandora, the first woman created by the gods, received this jar as a gift, along with advice never to open it. Curiosity got the better of Pandora, who, opening the jar, released all manner of misery upon an unsuspecting world.

Pandora got something of a bad rap in this business, because it is worth recalling that even after loosing so much unpleasantness by opening that jar, she discovered it contained yet one more spirit: Elpis, Hope. Whether the same can be said for NAGPRA and the apparent trampling of some of the most important understandings arming it with moral legitimacy remains to be seen.

Comparing NAGPRA to Pandora’s box may seem a bit over the top, but, as with that jar’s contents, the unintended side effects of the law’s passage and implementation are profound; just as the questions, arguments, and controversies it unleashed are both legion and unresolved.

I cleave yet again to Humpty Dumpty when considering the degree to which NAGPRA has been pushed beyond its original intent. Specifically, the situation brings to mind an aphorism Lewis Carroll put into the old egg’s mouth in his 1871 fantasy, Through the Looking-Glass, and What Alice Found There. “When I use a word, it means what I choose it to mean – neither more nor less,” Humpty Dumpty insists to an Alice befuddled by his nonsensicality.[50]“

https://culturalpropertynews.org/is-nagpra-irretrievably-broken/