Hitting the Reset Button On Repatriation

Following nearly a decade of consultation with American Indian tribes and others, the Department of Interior, which is tasked with interpreting and carrying out the NAGPRA, revealed that it had updated the law's regulations to strengthen the collaborations between museums and Native communities. Importantly, the regulation’s new Duty of Care section states that entities such as museums and institutions must “obtain free, prior and informed consent from lineal descendants, Indian Tribes or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items.” This empowers rightful claimants to speak out about how ancestral remains and cultural items in an institution’s collections are treated. As a result, some museums have opted to temporarily cover items that were previously on display or close exhibitions until they have addressed the NAGPRA new Duty of Care requirements.

Since its founding in 1989, the National Museum of the American Indian has always strived for strong partnerships with Indigenous peoples. A year prior to the NAGPRA, Congress passed a similar but different law called the National Museum of the American Indian Act (NMAI Act). This legislation not only established the NMAI but it also included the first piece of repatriation legislation in the United States. Yet the NMAI Act only applies to Smithsonian museums whereas the NAGPRA applies to other U.S. institutions or museums that receive federal funding. 

Both laws serve to correct a historical wrong going back hundreds of years—the taking and displaying of ancestral remains and cultural items from Native communities without their consent. Such actions taken in the early days of museums were based on racist systems fueled by greed and power as well as laws and policies that served to alienate Native peoples from their lands, loved ones and culture. Collectively, the NAGPRA and the NMAI Act are foundational expressions of Native communities’ right to heal and reconcile their past on their own terms. 

While the NAGPRA and the NMAI Act are separate, they have an often-forgotten parallel of intent. Both laws essentially have wording embedded in their respective legislation that nothing should stand in the way of museums and other institutions from going above and beyond the legislative requirements to repatriate Native American human remains and certain cultural items from their collections to lineal descendants, federally recognized tribes and Native Hawaiian organizations. In fact, that intent was made clear by the late Honorable Senator Daniel Inouye from Hawai‘i who said of the NAGPRA, “The bill before us is not about the validity of museums or the scientific inquiry. Rather, it is about human rights. … This legislation is designed to facilitate a more open and cooperative relationship between Native Americans and museums.” Yet, that intention seems to have gotten lost in translation.  

These new regulations effectively hit the reset button on the repatriation process by empowering tribes to be part of the process and shifting a greater burden of compliance accountability to museums and other institutions. This update has probably had the greatest impact on the repatriation process, ironically because its reach is outside of that process. Rather, this new requirement holistically hits at the heart of museum work, namely the curatorial process for exhibitions. What it says to me is that museums and other institutions with Native American collections can no longer drag their heels on consulting in good faith with lineal descendants and Native communities.  

I have often wondered how other institutions would legislate this kind of intent when the bar is already set so low for what must be done at a basic level. Today, almost 34 years following the passage of the NAGPRA, the revised regulations are attempting to do just that by creating a new paradigm for legislating intent. Museums must now reprioritize their resources and put their money where their mouth is at a time in our history when social justice matters. As we have seen, museums around the world are starting to take a serious inward look at their colonial past and their ethical future.

Although the Smithsonian Institution is not bound by the NAGPRA, each of its museums is guided by its own policy for how it implements its respective repatriation program. At present, two Smithsonian museums have repatriation programs: the NMAI and the National Museum of Natural History. Since its inception, NMAI has had a vision of what it was destined to become. The NMAI Act, like that of NAGPRA, says Smithsonian museums can go above and beyond the legislative requirements, so it has not been profoundly difficult to apply the founding values and principles to the NMAI’s repatriation policy. From the beginning the NMAI has stated that all human remains under its stewardship deserve to be returned to their communities of origin, regardless of geography or sociopolitical border. Later, that thought process was expanded to include their associated funerary items that accompanied those human remains. Since 1992, the NMAI has completed 124 repatriations, including 30 international repatriations working with First Nations in Canada and Indigenous communities in Latin America.  

The NMAI has worked hard to be progressive and proactive with its repatriation policy and vision that takes a natural deference towards lineal descendants, tribes, First Nations and Indigenous communities. At its core, the NMAI's intent has been to respect Native voices who provide critical context and understanding from their traditional knowledge perspectives. As Senator Inouye told us, repatriation is human rights legislation for Native peoples. This intention has always been the standard bellwether for me in repatriation, from which everything else emanates. It is a belief I carry with me today, as a good intentional place to start.