The laws regarding Native American remains leave too much up to museums

In a new series titled the Repatriation Project, ProPublica has published six articles about the slow return of ancestral remains and cultural items from museums to tribes in the United States and beyond. In the latest contribution, Mary Hudetz reports on how some scholars have studied – and in the course of their research, in some cases destroyed – Native American remains that were awaiting repatriation.

Sadly, the news comes as no surprise. While it is the actions of museums that are under closest scrutiny, the problem has its origins in the very law that is meant to protect Native American remains. After decades of protest by Native activists and their allies, in 1990 the United States Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). This legislation directs how Native human remains and cultural items can be reclaimed. However, it does not expressly prohibit research on collections subject to the law. NAGPRA only includes a small section, titled 3005(b), added in an early draft of the law, that instructs museums to ‘expeditiously return’ requested items ‘unless such items are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States’.

This pretext to study remains has been rarely used, is untested in the courts, and has been denounced by Native scholars. Yet in the absence of clear guidance from NAGPRA, museums have floundered in the resulting regulatory fog. While many museums in the United States have closed their collections subject to NAGPRA to researchers, some have allowed research – including destructive methods – to proceed. The result has been public disputes, distraught tribal leaders and broken relationships.

As an archaeologist and formerly the curator of an anthropological collection at an American museum, I appreciate the difficulties surrounding the question of whether museums can use, study or exhibit items that might be subject to repatriation. In the United States, collections of Native American materials were often formed under the banner of federal law, while the case for their repatriation today is often made with recourse to Native American tribal sovereignty. With little in the way of guidance or legal requirements, what are museums to do with items that may one day be requested for return?

Clear examples of what not to do are detailed in Hudetz’s article. One case involves the American Museum of Natural History in New York, which allowed researchers to extract DNA from Ancestral Puebloans who lived in Chaco Canyon, based on its decision in 2000 that these human remains were ‘culturally unaffiliated’. No tribal communities were consulted – and when tribal leaders learnt of the research after it was published in 2017, a media storm ensued. Several years ago, colleagues and I undertook an ethnographic study to understand what went so wrong in this case – and found that legal ambiguity was where the problem originated.

Precisely because of such ambiguity, museum administrators would be wise to take a proactive approach that embraces not just the letter of repatriation laws, but their spirit as well. First, at each institution, administrators should institute a temporary moratorium on all research on collections subject to repatriation. Second, they should develop an internal policy that lays out the conditions under which research might (or might not) proceed: how consultation with descendant communities should be pursued and by whom. Third, once such policies are formalised, institutions should proactively share them with descendant communities so that the latter are empowered to understand how their ancestors and their belongings will be cared for by museums.

Such efforts will be time-consuming and difficult. But they are necessary – not only for institutions to avoid controversy, but also for descendant communities to be treated with respect and dignity. As Hudetz reports, some museums are already taking these first steps. The AMNH has now banned destructive research on human remains. The Peabody Museum at Harvard has halted all research on ancestral remains and items – unless carried out with the consent of tribes. Next, museums can create equitable policies, offer transparency and investigate accession documents to locate and consult with descendant communities. By continuing in this vein, museum administrators will be able to find productive solutions, treading carefully – thoughtfully, intentionally, proactively – around items that one day may be claimed for return.

Chip Colwell is an archaeologist and editor-in-chief of SAPIENS. He was senior curator of anthropology at the Denver Museum of Nature & Science from 2007–20.