NAGPRA - Impact of the Update - Summer 2024
We have written quite a bit on NAGPRA (Native American Grave Protection and Repatriation Act) since its passage in 1990. Like any well meaning government legislation there problems and many unitended consequences which we have noted (https://www.arttrak.com/arttrak-blog)
I have quoted bits and pieces from - The New NAGPRA: ‘traditional knowledge’ in, artifacts out. published on culturalpropertynews.org This is only source I trust completely on this subject. There is great passion on both sides of this issue. It takes some effort to be objective.
In 2024 the government took another shot at updating the legislation and passed the NAGPRA update. The purpose was to “both encourage consultation and effectively loosen the requirements for how culturally unaffiliated remains should be identified, making it possible for institutions holding them to return them to likely related tribal groups. But the rules also repurpose NAGPRA to give authority and control over potentially all Native American art and artifacts in museums and federal agencies to tribes and Native Hawaiian organizations – effectively requiring tribal permission for museum and institutional management and administration of historical collections.”
On January 26, 2024, President Sean Decatur of the American Museum of Natural History in New York City, the largest natural history museum in the world, announced that the museum would close its entire Native American exhibit halls, covering 10,000 square feet, pending determinations of compliance with the new rules. “The number of cultural objects on display in these halls is significant, and because these exhibits are also severely outdated, we have decided that rather than just covering or removing specific items, we will close the halls,” he said. The museum, which has 4.5 million visitors a year, is “rethinking” its field trips for students in light of the closures.
NAGPRA Update Issues
LOAN OBJECTS -”It appears that as before, objects loaned by private owners to museums will not be subject to NAGPRA repatriation. The DOI Commentary states that having possession or control means a museum or Federal agency has an interest in human remains or cultural items, or, in other words, it may make determinations about human remains or cultural items without having to request permission from some other entity or person. This interest is present regardless of the physical location of the human remains or cultural items. A museum may have physical possession of a loaned item but legal possession and control over where the object is kept and how exhibited is based on the loan agreement, a contract agreed to by both the owner and the museum. To illustrate this concept, the DOI commentary notes that a person has the same interest in property that is in the person’s home as in property that same person keeps in an offsite storage unit. The person can make determinations about the property in the storage unit without having to request permission from the storage facility.”
SACRED OBJECTS DEFINITION - “Sacred object means a specific ceremonial object needed by a traditional religious leader for present day adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. While many items might be imbued with sacredness in a culture, this term is specifically limited to an object needed for the observance or renewal of a Native American
SACRED OBJECT -WHO DEFINES - The DOI also commented that a specific object may be deemed to be a sacred object if, based on Native American traditional knowledge, the object was ceremonially interred as part of a traditional Native American religious practice in the past, the object was subsequently disinterred, and today, it is needed by a traditional Native American religious leader to renew the ceremonial interment of the specific object by present-day adherents.[21] Congress’ express requirement that a sacred object be needed for current ceremonial use has thus been replaced with a desire by a current tribe to rebury funerary items or destroy sacred objects no longer in ceremonial use. Under the new regulations, a tribe’s intention to bury or destroy the object now qualifies as a religious practice. The written definitions of ‘cultural patrimony” and “sacred” in the new NAGPRA regulations stay the same. The DOI acknowledges that when NAGPRA was passed, Congress made clear that not all objects could be deemed “sacred” or “cultural patrimony.”[17] However, the DOI states that it added the phrase “according to Native American traditional knowledge” into this definition in order “to ensure meaningful consideration of this information during consultation.”[18] Cultural patrimony
NATIVE AMERICAN TRADITIONAL KNOWLEDGE - “Native American traditional knowledge means knowledge, philosophies, beliefs, traditions, skills, and practices that are developed, embedded, and often safeguarded by or confidential to individual Native Americans, Indian Tribes, or the Native Hawaiian Community. Native American traditional knowledge contextualizes relationships between and among people, the places they inhabit, and the broader world around them, covering a wide variety of information, including, but not limited to, cultural, ecological, linguistic, religious, scientific, societal, spiritual, and technical knowledge. Native American traditional knowledge may be, but is not required to be, developed, sustained, and passed through time, often forming part of a cultural or spiritual identity. Native American traditional knowledge is expert opinion.” [11]
By failing to set limits of any kind, the rules do not provide a meaningful definition of Native American traditional knowledge, while making it key to determining whether a tribe can claim an object for repatriation under NAGPRA. Such ‘traditional knowledge’ also need not have been held, as one might suppose, traditionally. It can be new or relatively newly held. “Native American traditional knowledge may be, but is not required to be, developed, sustained, and passed through time.”[12]
MUSEUMS SURPRISED The Denver Museum of Art has removed a display case of ceramics, the Cleveland Museum of Art has covered three of its six cases of Native North American art, the Peabody Museum of Archaeology and Ethnology at Harvard University will remove all funerary belongings from exhibition. The Metropolitan Museum in New York has removed objects from its musical instruments displays. The Seattle Art Museum has removed five Northwest Coast objects of Tlingit origin from its galleries, deeming them ‘cultural objects’ for which permission to display them must first be obtained and is considering removing more.
It’s no wonder that museums were surprised by the new regulations. A 2021 draft overview stated only that the new rules would require “museums and Federal agencies to exercise a duty of care prior to repatriation.” In the 2022 proposed rules, Section 10.1(d) Duty of care, required museums to “Consult, collaborate, and obtain consent on the appropriate treatment, care, or handling of human remains or cultural items,” not their exhibition and public display.
As the announcement by the Cleveland Museum pointed out, the 30-day period between announcement and the regulations taking effect was insufficient to determine who needed to be consulted, who had authority to grant permission, or the process to obtain consent.
Many of the changes to NAGPRA represent a reversal rather than a strengthening of Congressional intent in passing NAGPRA. The new rules raise constitutional questions of takings by government without compensation and the future of museum loans that must be the subject of another article. One thing is clear – the changes have resulted in the summary closure of museum galleries, loss of access to research and limiting of future scientific study to all Americans, including Native Americans, who seek to understand the remarkable diversity of Native cultures and their impact on the continent for thousands of years. https://culturalpropertynews.org/the-new-nagpra-traditional-knowledge-in-artifacts-out/
Museums are struggling now to find support from their cumminies and relevance in their educational mission. Timing is terrible for museums and negative publicity suggesting they are not responsive to traditionally disenfranchised people is not helpful. See https://www.arttrak.com/blog-content/2024/6/pd4wsw9c6u6yz2hn3dhgn7b4t9drch
