Grave Injustice

Federal laws about burial remains put politics before science.

Imagine an America where the federal government takes an active role in promoting the spiritual values of a certain cultural group. This group rarely documents its largely unknown religious practices and in fact considers many rituals too secret for public knowledge. Yet should outsiders violate its beliefs, the government can threaten them with lawsuits, fines, or prison sentences.

Many people believe this scenario needn't be imagined at all, because this America exists now. A statute called the Native American Graves Protection and Repatriation Act (NAGPRA) has created a legal and cultural imbroglio that has scientists frustrated, art dealers scared, and the general public befuddled. In the words of one archaeologist, Geoffrey Clark of Arizona State University, "What we're seeing here is the triumph of political correctness over logic and reason."

To Native American groups and their supporters, NAGPRA and similar laws are long-overdue measures that protect burial remains and sacred objects, helping redress the wrongs Indians have suffered since 1492. According to Arizona Judge Sherry Hutt, speaking before the U.S. Senate in 1999, NAGPRA is "one of the most significant pieces of human rights legislation since the Bill of Rights." For Fort Lewis College anthropologist Kathleen Fine-Dare, author of Grave Injustice: The American Indian Repatriation Movement and NAGPRA, "This was more than a law; it was a change in the American consciousness." Cherokee tribe member Steve Russell, an associate professor of criminal justice at Indiana University, says the law "has helped transform Indian bones from archaeological specimens to the remains of human beings."

The law's critics disagree. "This law presents a clear and present danger to our study of the past," says Alan L. Schneider, an attorney with the Oregon-based pro-archaeology group Friends of America's Past. "The people in Congress who voted for this measure never thought it would go this far." The sentiment is echoed by a leading dealer of Indian artifacts who, like many people interviewed for this article, prefers not to be identified by name. "NAGPRA frightens everyone -- dealers, collectors, everyone," he says. "I don't want Big Brother snooping around my business."

How did a well-intentioned piece of legislation come to provoke fears of Orwellian snooping? The answer involves the weighted history of Indian relations, a vaguely written federal law, and the zealous agencies that seek to enforce it, as well as aspects of Native American culture that strike some non-Indians as confusing and often contradictory.

Repatriation Rising

Signed by the first President George Bush in 1990, NAGPRA requires federal agencies, and institutions that receive federal money, to inventory any bodily remains or important cultural artifacts of Indians, native Alaskans, or Hawaiian peoples in their collections -- and to return those items, on request, to "culturally affiliated" tribes or descendants. In addition, the statute restricts commercial trade in those objects. Exempt from the law are objects held by the Smithsonian Institution (a separate statute, the 1989 National Museum of the American Indian Act, covers those) or objects found after 1990 on state-owned lands (most states have their own repatriation laws). Nor does NAGPRA apply to items amassed in private collections before 1990 or discovered on private land.

"Congress was seeking a balance between private rights and the rights of Indians," says Jack Trope, executive director of the not-for-profit Association on American Indian Affairs (AAIA), who served as an instrumental adviser to legislators during the creation of NAGPRA. "But at the same time, most people drafting this law felt that our legal system needed to do a better job of representing Native American culture."

The act was the latest in a series of often faltering efforts to preserve Native American culture and grant Indians equal protection under the law. Congress established the Antiquities Act of 1906 in part to prevent the looting of Native American sites. In 1978 legislators passed the American Indian Religious Freedom Act, under which the government recognized Indian religious values and rituals, and in 1988 they created the Archaeological Resources Protection Act, which mandated stiff penalties for removing Native American objects from public lands without a permit. The law, however, stipulated that recovered objects remained the property of the United States, to be "preserved by a suitable university, museum, or other scientific or educational institution" rather than repatriated to tribes.

The sea change in public attitudes toward Native American culture began in the most unlikely of places. In 1976 Maria Pearson, a Yankton-Sioux woman living in Iowa, learned that a road crew had excavated a grave site, unearthing 26 Caucasian skeletons and one of an Indian woman. State officials reburied the white bones in a new cemetery but shipped the Indian remains to Iowa City for further study. "That's discrimination," said Pearson, recalling the incident for an Iowa newspaper in 2002. "What made those white people not worth studying? The Indian has got to remain buried just like everyone else."

Arguing that the issue was a civil rights violation, Pearson went to Iowa's governor, only to be rebuffed. Undeterred, she fought on, rallying a grassroots movement that led, in 1982, to the first state law requiring that public agencies return Native American remains to their affiliated tribes. Coupled with a rising interest nationwide in Indian rights, Iowa's statute gave impetus to a legal groundswell that eventually led to NAGPRA.

Today museums across the country are inventorying and repatriating thousands of bones and funeral objects held in their collections. For example, the Smithsonian's Museum of Natural History is returning some of the 18,500 human remains and tens of thousands of artifacts it possesses from over 90 indigenous peoples. In the largest repatriation case to date, the Robert S. Peabody Museum at Phillips-Andover in 1999 returned the bones of 2,000 Pecos Indians and over 500 funerary items to the pueblo of Jemez, New Mexico. As recently as last October, Chicago's Field Museum returned the bones of 150 people to the Haida tribe in British Columbia.

"It's been good for everyone," says Fort Lewis College's anthropologist Fine-Dare, who applauds her own institution's efforts to inform more than 25 Indian tribes about the school's holdings of Native American bones. "It helps show that historical wrongs can be corrected -- and that museums don't have to be gutted in the process." Still, in part because of the huge number of bones possessed by American museums, "only around 10 percent have found their way back to their tribes since NAGPRA's passage," estimates Karenne Wood, repatriation coordinator for the AAIA.

Abusing the System

Few, if any, critics take issue with returning bones of Indians to their descendants. It's the abuse of the process that angers many archaeologists and anthropologists. They argue that NAGPRA has given Native Americans license to claim human remains whether or not there is a genealogical link, often at the expense of scientific knowledge.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.


Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.