The Native American Graves Protection and Repatriation Act (NAGPRA) is a federal law that governs universities and museums’ abilities to curate and research Native American skeletal and artifact collections. It also provides federally recognized tribes, of which there are 577, an avenue for repatriation of culturally affiliated skeletal remains and some artifacts, specifically funerary objects, sacred objects, and objects of cultural patrimony. Changes to NAGPRA, proposed in October 2022, may dramatically change the law in a way that will support Native American tribal interests at the expense of scientific inquiry.

In the late 1980s, when discussion of a federal repatriation and reburial law was being discussed and drafted, there was much debate among anthropologists and archaeologists, and between these social scientists and other stakeholders, such as Native American tribes and government entities, around the details of the future law. Those involved in drafting NAGPRA took the various perspectives into account and attempted to construct a compromise that would allow for continued curation and research of non-funerary artifacts and human remains that were culturally unaffiliated. Further, the compromise held that cultural affiliation would be determined by a preponderance of evidence that could include scientific evidence, tribal oral history and folklore (including creation myths), and historic documentation.

Thus, the resultant federal law, NAGPRA, which passed in 1990, allowed for continued curation, research, and exhibition of culturally unaffiliated human remains. Furthermore, most artifacts – those which were non-funerary, not sacred, and not objects of cultural patrimony – were left in museums and universities for research and exhibition.

In any compromise, there will be those not satisfied. Scientists wanted to retain more materials for study and did not want repatriation decisions to be made without historic or scientific evidence; but Native American tribes interested in repatriation argued that oral history and myths are valid ways to determine links between past peoples and modern tribes.

For instance, scientists such as Geoffrey Clark at Arizona State University, in his 1999 Skeptical Inquirer article “NAGPRA, Science, and the Demon-Haunted World”, argued that NAGPRA’s allowance of creation myths as evidence for cultural affiliation “betrays a near-total ignorance of evolutionary biology,” promotes religious beliefs that are the same as those creation myths “embodied in the Judaco-Christian origin myth (i.e., the Book of Genesis)” and “has no place in science”.

And, in a 1996 New York Times article, the different perspectives on the repatriation and NAGPRA debate put into focus that some tribal members, such as Sebastian LeBeau, repatriation officer for the Cheyenne River Sioux, a Lakota tribe based in Eagle Butte, S.D., argued NAGPRA was flawed because they “never asked science to make a determination as to our origins.'' He went on to state that they “know where we came from” and that “they came from inside the earth after supernatural spirits prepared this world for humankind to live here”.

Yet, scientists such Keith Kintigh from Arizona State University and Amy Dansie of the Nevada State Museum point out that in many cases skeletal remains cannot be affiliated with a modern culture, which is why there is a category in NAGPRA of culturally unidentifiable remains and artifacts. Some tribal leaders and academics have accused anthropologists and archaeologists of abusing this category. For instance, Rae Gould of the Native American and Indigenous Studies Initiative at Brown University and a member of the Hassanamisco Band of Nipmucs of Massachusetts, in regard to the culturally unidentifiable category, states that “institutions take advantage of it”.

Regardless of whether one thinks NAGPRA is too generous to scientists or too generous to Native American tribes, it is clear that much debate occurred prior to NAGPRA’s passing and for at least two decades afterward. Yet, it appears that debate is no longer tolerated. And, the compromise has collapsed. For instance, in 2021, the Society for American Archaeology deplatformed my talk that questioned the use of creation myths in repatriation cases. Another example comes from the recent repatriation of non-Native American materials, such as a 17th Century Spanish breastplate, by institutions, such as University of California’s Phoebe Hearst Museum of Anthropology.

Yet, this collapse is most visible in the proposed changes to NAGPRA that were published in October 2022. All of the substantial proposed changes are at the expense of science and in support of Native American activists’ interests. This is perhaps not surprising considering that Native American tribes and Native Hawaiian Organizations were invited to consult on the proposed changes; scientists were not invited to consult on the proposed changes.

A major change includes removing the category of culturally unidentifiable, which will prevent museums and universities from being able to curate or research any collections. Other changes include redefining human remains to include soil that human remains may have been previously located in, and requiring deference to Native American tribes throughout the regulations. Thus, if there is a disagreement between the Native American tribal evidence and the scientific evidence, the tribal evidence will always take precedence.

This last change is adopted from California’s repatriation law CalNAGPRA. The term “Native American traditional knowledge,” which is to be deferred to if there is a disagreement between the scientific evidence and the Native American traditional knowledge, is also added to NAGPRA. Although one may think that Native American traditional knowledge would only include knowledge that is long-established or passed down, according to the definition in NAGPRA, this is not the case: “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.”

Even more disconcerting for research involving America’s past than the proposed changes is the reaction to these changes; public comment was allowed both orally and in written form until January 17^th, 2023. Over 200 comments were made by a wide variety of people: professors, archaeologists, museum directors, high school students, Native American tribal members, university students, and many others.

Although the comments came from a wide variety of people and from all over the US, the lack of viewpoint diversity in the comments speaks to a lack of heterodox thinking and an abandonment of the scientific principles. Within the public comments, only two commentators specifically mention concerns about the negative effect these changes will have on scientific research. Wyoming State Archaeologist Spencer Pelton raised concerns with the introduction of the term “Native American traditional knowledge” and the problem of repatriation of non-funerary and non-sacred items. He stated:

“Some of the items implicated in NAGPRA repatriation are increasingly not associated with burials, cultural patrimony, or sacred items, but arbitrarily subsumed by the NAGPRA process anyway, a practice that I find to be a particularly egregious abuse of this law. When such items are reburied, it is a loss to knowledge for science, Native American groups not involved in the repatriation process, and ultimately the American public.”

Mavis Greer, president of the Wyoming Association of Professional Archaeologists, noted that the new definitions cause problems for researchers. Specifically, the new definition of human remains that includes soils and animal remains, she states “will cause problems for researchers who are interested in studying deposits left at a site hundreds or thousands of years before the human burial was placed at that location.” Furthermore, she notes “with everything being a potential funerary object, it will become almost impossible to record or work with any material from any context, regardless of whether human remains are involved. This limits our study of the past and consequently our knowledge about it, which is not one of the original goals of NAGPRA”.

Nearly all other comments were supportive of the proposed NAGPRA changes, although there were many concerned with the removal of the culturally unidentified category for reasons beyond how the change will affect scientific inquiry; for instance, Gil Nelson, president of Natural Science Collections Alliance (a non-profit association that supports natural science collections, their human resources, the institutions that house them, and their research activities for the benefit of science and society), noted that:

“for institutions holding remains that cannot be affiliated with any specific group or groups on the basis of available evidence, a determination of affiliation based on geography will not necessarily result in the return of ancestors to lineal descendent communities—the intent of repatriation . . . determination of affiliation based on culture and continuity over time, but not necessarily in space, seeks to apply evidence-based scholarship to the question, intended to ensure that remains can be properly returned to descendent communities”.

Many commentators actually supported going further than the proposed changes. Some of the recommendations came from tribal commentators; for instance, repatriation of animal remains ‘that are imbued with human spirit’ was supported by several tribes. A suggestion that was also supported by the NAGPRA review committee was that the new definition of human remains should be:

“Human remains means any physical remains of the body of a Native American individual and includes ceremonially interred animal burials spiritually imbued with the character of Native Americans. The physical remains of the body of a person of Native American ancestry includes all substances derived from such remains, including but not limited to biological or medical samples taken for DNA extraction, radiocarbon dating, stable isotope analysis, and any derivatives thereof”.

Also, all tribes who left public comments about scientific inquiry were against further research; for instance, the Haudenosaunee Standing Committee, which acts on behalf of the traditional governments of the Mohawk Nation Council of Chiefs, Onondaga Nation, Tonawanda Seneca Nation, Cayuga Nation, and Tuscarora Nation, stated that “No further research, study, or other access should be permitted”.

Perhaps most distressing were the many commentators who supported the destruction or repatriation of previously collected data and the repatriation of x-rays, photos, 3D scans, and replicas. This will stop data sharing, hinder teaching of skeletal anatomy, and could end all anthropological research on America’s past.

For example, Northern Cheyenne Tribal Historic Preservation Office, following National Association of Tribal Historic Preservation Officers, “recommend that the definition [of human remains] be expanded to include casts, replicas, and digital data derived from a Native American individual”. And, from the NAGPRA review committee:

“Casts, 3-D scans, and all other digital data of Native American Human Remains means as part of its inventory process otherwise required by NAGPRA, all federally funded museums and agencies shall include references to all casts created from actual Native American human skeletal remains and any replicas from 3-D scans and all other digital data of Native American human remains, funerary objects, sacred objects or cultural patrimony. Where applicable, museums and federal agencies shall consult Tribes and Native Hawaiian organizations as to their proper treatment. No such casts, replicas or digital data scanned from Native American human remains, funerary objects, sacred objects or cultural patrimony shall be offered for sale or exchange without the free, prior and informed consent of the culturally affiliated Indian Tribe or Native Hawaiian organization. Failure to comply shall be deemed a violation of NAGPRA.”

The repatriation – and, thus, loss of data – however, is also supported by some academics; Christopher Caseldine at the Arizona State University School of Human Evolution and Social Change wrote “documents and records (including photographs) associated with NAGPRA holdings and collections should be added as eligible for repatriation”.

Although nontribal comments were often less specific, a near-unanimous push toward more repatriation was found among high school students, university students, professors, and museum directors.

For instance, Dorothy McClellan, a professor at Texas A&M University, wrote that there is no reason to hold on to remains. Mack Thompson, an anthropology student of Cherokee descent, suggested that NAGPRA was too weak and cannot create a “decolonized (and anticolonial) anthropology” and needs to be strengthened. Ryan Wheeler, of the Peabody Museum of Archaeology and Ethnology, which is affiliated with Phillips Andover Academy, suggested that “additional Tribal consultation might help identify Indigenous methodologies that could be incorporated into the rule, providing additional pathways to repatriation”. Stephen Nash, of the Denver Museum of Nature and Science, wrote “Repatriation under NAGPRA has been too slow and the burdens placed on tribes too great”.

There was also wide support for including non-federally recognized tribes. For instance, Peter Moore, a professor of early American history at Texas A&M University-Corpus Christi, wrote that:

“The bones of hundreds of Indigenous people have been removed from my community, and 277 still remain in museum collections, all of them defined as unaffiliated. Almost half of these remains were removed from a burial ground adjacent to my university. Some museums would like to return these bones to their rightful homes, but they are blocked by federally recognized tribes from consulting with geographically affiliated people like the Karankawas. Please change the regulations so that museums will have the freedom to consult with non-federally recognized Indigenous peoples on the disposition of these remains.”

Interestingly, federally recognized tribes are less eager to make this change and argue that non-federally recognized tribes can work with federally recognized tribes to ensure that repatriation occurs.

Regardless of the specifics, nearly all commentators were supportive of repatriation and reburial. Nearly no one was concerned about scientific research. And, many were supportive of destroying or repatriating already collected data. There may be many reasons for the lack of diversity in these comments: commentators may be siding with repatriation activists out of misplaced guilt revolving around America’s past; some may be virtue-signaling; others may be in favor of the changes out of fear of retaliation; and still others may think collaborative efforts in repatriation will provide a chance to convince Native Americans that research can improve their lives. The unspoken truth is also that there are likely many anthropologists and archaeologists who are for scientific research, but did not leave any public comment; they have thrown in the towel, realizing that Native American activists will win in their “everything back” agenda.

This monolithic movement to increase repatriation at the expense of science will bury our ability to understand the past and its diverse peoples and cultures. When skeletal collections and data are lost through repatriation, future generations cannot examine the evidence to reconstruct the past; new technologies cannot be used to test old hypotheses and thereby correct past mistakes; and previous data cannot be compared to new data to better understand human history.