Does NAGPRA finally work for tribes? – Law Journal for Social Justice

By Chelsi Tsosie

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is important legislation enacted to protect human rights. New changes to NAGPRA may restore the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations to control the fate of their ancestors and cultural artifacts in the United States.

New changes to NAGPRA require institutions to consult with Indigenous tribes and communities to repatriate Native American human remains and related artifacts. (Photo: Michael Bourgault via Unsplash.)

Congress originally enacted NAGPRA to compel “museums and federal institutions that possess Native American human remains and associated funerary objects to catalog and return those ancestors and belongings within five years to their present-day tribal nations.” However, in many cases, these institutions found that they could deem human remains as “culturally unidentifiable” and deny tribes’ requests to repatriate ancestral remains to their tribe.

This unintended loophole allowed remains to stay in museum collections, perpetually delaying repatriations and allowing destructive analysis, despite objections from tribes. Instead of empowering Indigenous peoples to take back ancestral remains, museums and federal institutions could ultimately decide tribes lacked sufficient evidence of a connection to their ancestors.

Fortunately, U.S. Department of the Interior Secretary Deb Haaland (Laguna Pueblo) on Dec. 6, 2023 announced that the final revisions to NAGPRA aim to close that loophole as well as to expedite and simplify the repatriation process. Particularly, the new rule eliminates the term “culturally unidentifiable.” Now, museums and federal institutions that possess ancestral remains and belongings must defer to Indigenous knowledge of lineal descendants and consult with such Indigenous groups.

Melanie O’Brien, National NAGPRA Program manager, said museums and federal institutions must now either obtain “free, prior, and informed consent before any exhibition of, access to, or research on human remains or cultural items” or review their collections and consult with tribes on which items should be returned. At the least, the new rule validates the significance of tribes’ desires to bring their ancestors home and treat them with respect, which is lacking when they are displayed in museums and federal institutions.

From a broader perspective, the new NAGPRA rule makes it possible for Indigenous people to reclaim their right to their culture and physical, mental, and spiritual health. For many tribes, the vitality of their culture stems from the ability to practice traditional customs and activities. These activities may include burial ceremonies that have spiritual consequences that would otherwise not occur without the repatriation of ancestral remains and objects.

Returning ancestral remains to Indigenous lands and peoples reconnects communities to their cultures, past and present. In other words, repatriation gives Indigenous communities an opportunity to maintain their spiritual integrity and, thus, their overall well-being.

Repatriation also provides Indigenous communities a chance to heal from post-colonial trauma. With Indigenous people in control, they reclaim their sovereignty and their right to practice the culture and language that was once subject to destruction in pursuit of beliefs hidden behind the science of Western superiority.

By addressing historical injustices, Indigenous communities are elevated to a fairer and more equal status. “Repatriation is about restoring dignity and making right the wrongs of the past. . . . [It] shows respect for the dead, for cultural beliefs, and for the hurt that has been caused to source communities as a result of the development of science and museum collections.”

Chelsi graduated from Northern Arizona University with a B.S. in business administration in management and marketing and earned a M.B.A. from the University of New Mexico. She is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Chelsi is interested in issues affecting tribal nations. She is Diné and grew up in Fort Defiance, Arizona, on the Navajo Nation. Outside of school, Chelsi enjoys spending time with friends and family, hiking, and painting.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice (“LJSJ”) is the first student-run and student-created online journal at Sandra Day O’Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.
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