Budget woes, sloppy records undermine law on tribal remains

By Dylan Brown | 03/05/2015 01:02 PM EST

Twenty-five years ago, Congress required federal agencies to sift through collections and return Native American remains to tribes. Progress has been slow.

For 25 years, federal agencies have sifted through dusty storage rooms to comply with a congressional mandate to return Native American remains and sacred objects — the spoils of massacres, wars and 20th-century development — to tribes.

Progress has been slow.

Stymied by poorly curated collections, long-lost records and limited operating budgets, agencies have taken mere baby steps toward meeting the requirements of the Native American Graves Protection and Repatriation Act, or NAGPRA, according to many American Indian, Alaska Native and Native Hawaiian groups.


"We caught a big fish. We’ve pulled it up onto the boat, and we can’t get hold of it," said Shannon O’Loughlin, a member of the NAGPRA Review Committee — a seven-member panel split between museum and tribal representatives to monitor the law’s process. O’Loughlin is Choctaw and chairwoman of the Indian Nations Law practice at Lewis, Brisbois, Bisgaard & Smith in Washington, D.C.

The 1990 law, designed to help the federal government make amends for its systemic mistreatment of Native Americans, outlines a process for federal agencies and federally funded museums to return the remains of some 180,000 Native Americans to their descendants and tribes.

According to the National NAGPRA Program, an independent division established within the National Park Service to administer the law, 74 percent of federal collections ready for repatriation are now back with tribes.

But that number represents less than 10 percent of all Native American remains in museum and federal collections, including potentially thousands left in limbo as federal officials and museums squabble over responsibility.

Lawmakers were targeting so-called low-hanging fruit when they designed NAGPRA based on provisions in 1989’s National Museum of the American Indian Act, a law that created a repatriation procedure for the Smithsonian’s 20,000 human remains and voluminous Native American collections.

New Melones Dam
Native American human remains and objects cleared to make way for the construction of the New Melones Dam (above) and other infrastructure projects in California’s Central Valley ended up stockpiled at a Bureau of Reclamation storage facility nearby. | Photo courtesy of the Bureau of Reclamation.

"I don’t think they really had a very good idea or a very good understanding of what it was they were trying to institute," said Paul Rubenstein, the U.S. Army Corps of Engineers national policy adviser and cultural resource expert.

For one, NAGPRA doesn’t provide any funding to carry out its mandate, so agencies must find a way to pay for repatriation projects amid their regular operating budgets — or convince Congress to devote specific funds to the issue.

In its most recent Museum Property Management Summary Report, the Interior Department, whose NAGPRA collections are second in size only to the Smithsonian Institution, linked slow progress on inventorying museum collections to tightening budgets, particularly the mandatory cuts of the sequester.

"The simpler projects have been completed, and what we have now is a bit more complicated," said Emily Palus, deputy division chief for the Bureau of Land Management’s Heritage Program. BLM’s collections are among the largest in Interior but are almost exclusively stored in several hundred nonfederal repositories.

Palus, who was formerly BLM’s national NAGPRA coordinator, a position that currently sits vacant, said the agency has run into difficulties collaborating with some institutions that ask for payment to do the work or monitor BLM workers.

Employees in the agency’s 12 state offices also work on NAGPRA only as a collateral duty — a problem of limited funding that GAO identified at nearly every agency tasked with upholding NAGPRA. Palus said the immediate task of 13,000 land-use actions filed each year often take precedence.

"Nine times out of 10, we have to go with what’s current because we can’t handle the backlog," said Eugene Marino, Fish and Wildlife Service federal preservation officer.

For many tribes, repatriation can simply take a backseat to issues like crime and unemployment. Limited budgets, legal expertise and access to land for reburial create a gulf between the number of items available for repatriation and those physically returned.

Alex Barker, a museum director at the University of Missouri and member of the federally appointed National NAGPRA Review Committee, said museums also are overstretched after devoting decades to NAGPRA.

The question isn’t whether a federal agency or museum is compliant with NAGPRA, Barker said, "it’s to what extent."

Tribal advocates say it comes down to federal priorities.

"I believe it to some point, yeah, it’s hard when you don’t have staff and money," O’Loughlin said. "But if you have a legal obligation, you prioritize based on those obligations."

Skeletons wrapped in newspapers

Another roadblock to agency compliance with NAGPRA is the disorganization of federal collections.

Agencies and museum partners storing the bulk of federal collections are struggling to track down human remains and sacred items lost in an unwieldy web of archaeological collections.

For decades, archaeologists and anthropologists put their students to work at sites managed by federal agencies, digging up items to bring back to campus. By contracting academic researchers to excavate, federal officials found a place to offload bones and other items unearthed during infrastructure projects.

The mutually beneficial relationship, however, created what the National NAGPRA program called "the largest NAGPRA issue facing federal agencies."

Records of digs are often separated from what they document. Funerary objects are sometimes stored across the country — or even world — from the person with whom they were buried.

University of Massachusetts, Amherst, anthropology professor Sonya Atalay — who is Anishinaabe-Ojibwe and a member of the NAGPRA Review Committee — remembers finding skeletons wrapped in 1923 newspaper and a baby’s bones in an oatmeal box.

A 2010 Government Accountability Office report on agency NAGPRA compliance described "poor curation practices by agencies and repositories, in general, along with poor historical records and documentation."

"What happens is a collection originates, it goes to a museum, it’s accepted into the museum as collection A, when it was really supposed to be identified as collection B and then 50 years go by and all the personnel that were at the museum are gone," said Marino of FWS.

A benchmark in NAGPRA circles, the GAO report acknowledged "longstanding challenges" meant agencies were left "a monumental task" in finding NAGPRA items in a universe of archaeological collections — a task that is only getting larger.

According to the national NAGPRA office, 658 individuals were added to the national total last year as museums and agencies discovered bones and other objects untouched or lost since their excavations.

"What concerns me is the large number of ancestral remains that we don’t even know about," Atalay said.

And totals will grow only larger, tribal advocates say, as items are tracked down in museums and private collections around the world.

‘The right thing to do’

Despite the massive scope, a handful of agencies have gotten a handle on the backlog.

The Army Corps completed physical inspections of its sites in 2000, and the 2010 GAO report listed it as one of the top three agencies on NAGPRA alongside the U.S. Forest Service and National Park Service.

"The reason the corps was able to have success was because we had a program that was consistently funded, and we were able to not rely and not ask the museums to do the work for us," Army Corps anthropologist Jennifer Riordan said. "It was not the museums’ responsibility. It was the corps’ responsibility."

In the early 1990s, Rubenstein, the Army Corps’ national policy adviser and cultural resource expert, together with Michael "Sonny" Trimble, who at the time was fresh out of school with a doctorate in anthropology, developed an idea that would become the Army Corps’ Center of Expertise for Archaeological Curation and Collections Management.

"We’re going to have to find all these collections, inventory them, catalogue them, examine them and document them to a baseline standard," Trimble remembers telling Rubenstein. "If we do NAGPRA at the same time, we’ll be saving an enormous amount of money."

The two waged a campaign to win over their commanding officers. While it took half-a-dozen presentations, the idea was something that hit home — beyond saving money.

"These senior leaders felt a responsibility to act in a way that reflected a deeper concern than just a law was passed to account for ash trays, cars or pencils," he said. "It wasn’t just something to do, it was the right thing to do."

Army Corps commanders took a step other agencies did not, creating a NAGPRA line item in their annual budget. Rubenstein called it a "heroic" achievement as it would help insulate the corps against the budgetary fluctuations that have slowed NAGPRA work at other agencies.

Another vital factor in the relative success of the program was centralizing control over record-keeping and inventory work in St. Louis. Trimble organized a team of enthusiastic archaeologists, anthropologists and archivists with specific expertise. He also made sure to have Native American representation on the staff.

Trimble knew from experience that museums had little in the way of staff dedicated to collections and that a young curator, usually on his own, wouldn’t know much about collections going back decades.

Instead, Trimble dispatched Army Corps teams to define the scope of corps collections in museums across the country.

Despite the emphasis, even the corps missed deadlines for completing inventories and summaries of NAGPRA items, but, gradually, it honed its paperwork and standardized protocols.

"Over the years, we have figured out, pretty much, how to get it done," Rubenstein said. "How to get it done quickly and effectively and how to get it done right."

Trimble’s team has been put to work on collections throughout the Department of Defense. Other agencies at a loss about where to start with NAGPRA have sought out the Army Corps’ "turnkey operation," Rubenstein said.

Interior, too, is making progress toward NAGPRA compliance. After a 2009 Interior inspector general audit found "elements of the nation’s heritage are being neglected and forgotten in thousands of boxes containing millions of objects neither identified nor accounted for," the agency has catalogued about 64 percent of its collections versus 47 percent in 2009.

In the years since the GAO report, the number of human remains that have been repatriated by Interior agencies increased nearly 20 percent to almost 74 percent returned.

The work left to do

The National NAGPRA office said "a substantial body of work remains for NAGPRA communities and practitioners," but progress has undoubtedly been made in 25 years.

"A lot of reports on NAGPRA can focus on the negative, but virtually all of our interactions with tribes are very, very positive," said Jordan Jacobs, head of repatriation and cultural policy at the University of California, Berkeley’s Phoebe A. Hearst Museum of Anthropology. "It’s really not a contentious process, which I am sure was not the case 25 years ago."

NAGPRA is imperfect, stakeholders said, but necessary.

"You absolutely have to look for that way of working together, and that is our only way forward," professor Atalay said.

In the end, the University of Missouri’s Barker said, "Everybody’s concerned about the past and how important it is."