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20 Years and Counting

Interview with James Pepper Henry
Museum, November/December 2010

Twenty years ago the Native American Graves Protection and Repatriation Act was passed by Congress, and with a single piece of federal legislation, a new era began in the complicated relationships among tribes, the government and museums. NAGPRA laid out a process for federal agencies and museums to return Native American cultural property—human remains, funerary objects, sacred objects and objects of cultural patrimony—either in museum collections or in the hands of federal agencies, to the proper Native American tribes. And there began the journey.

NAGPRA has been hailed on all sides as a historic attempt to right decades of moral and legal wrongs. But it has also been criticized by Native Americans and museum professionals as a poorly funded mandate that created financial, administrative and even spiritual problems that have proven burdensome and intractable: for example, disputes between tribes over identity, ownership and proper reburial of remains, or the problem of museum-held artifacts tainted with pesticides, cyanide or arsenic. Two decades later, less than 30 percent of human remains in collections have been repatriated.

Museum turned to a man who is perhaps unique in having intimate knowledge of NAGPRA from the Native, museum and federal viewpoints. James Pepper Henry, who spoke recently with AAM Press Publisher John Strand, is director and CEO of the Anchorage Museum at Rasmuson Center. He was associate director of the Smithsonian’s National Museum of the American Indian and played a pivotal role in the establishment of the National Museum of the American Idnian on the National Mall in 2004. A member of the Kaw Nation of Oklahoma and the Muscogee Creek Nation, Pepper is president of the Kanza Ilóshka Society, dedicated to the perpetuation of the culture and traditions of the Kaw people.

Twenty years after it was enacted, what grade would you give this much-debated federal legislation?

I would probably give it a “C.” And I think that’s being pretty generous, to be honest with you.

In keeping with that generosity, let’s start with what has worked with NAGPRA. What do you find on the plus side of the ledger?

The fact that the act even exists is definitely a plus. It has drawn attention not only to the issue of ownership of cultural materials but also to a larger perspective about the rights of a specific group of people—or their lack of rights. And restoring rights to a group of people that had them either taken away or just not acknowledged—I think that’s incredibly important. So NAGPRA really, in a way, is an attempt at remediation for injustices that have happened. The act itself is pretty monumental. In a way, it’s human rights legislation. That’s incredibly important. The intent of NAGPRA is a good one. To date, almost a quarter of a million unassociated funerary objects have been repatriated. Over 1,500 individuals have been repatriated. And thousands of associated funerary objects and sacred objects have been returned.

What hasn’t worked well?

The system that NAGPRA is in needs an overhaul. First of all, NAGPRA is managed by [the National NAGPRA office of] the National Park Service. You have a piece of federal legislation that mandates federal agencies to comply. But the act and the compliance for the act itself are managed by a federal agency that’s out of compliance.

The National Park Service is in violation of NAGPRA?

Yes. There’s a conflict there that won’t be easy to resolve. There’s not a lot of credibility with the National Park Service when they’re out of compliance with the act they are charged with administering, specifically with the completion and distribution of inventory summaries of Native materials. The deadline was nearly 15 years ago. They have the responsibility to ensure that all federal agencies comply with the law, including themselves. I think it’s hypocritical to have the oversight of NAGPRA be within the National Park Service when they have gotten away with non-compliance for so long without any significant consequences. It sends a message to the other agencies that they can let compliance slide, too. The NAGPRA program really needs to be elsewhere.

What about the NAGPRA Committee Review? Can’t it force compliance?

The NAGPRA Review Committee is left here to review cases where there are disputes. They consult the Secretary of the Interior in developing regulations to implement the act. The Secretary, based on findings from the Review Committee, may assess civil penalties to individuals, agencies and organizations that violate the act, but the committee has no authority to ensure these actions are enforced. The Secretary is resistant to assessing penalties to agencies and bureaus within the Department of the Interior and other federal agencies for obvious reasons. This severely weakens the effectiveness of the Review Committee.

The federal government is the single largest possessor of Native cultural materials. The number of objects and human remains could be in the millions. But we don’t know because many other federal agencies, not just the National Park Service, are out of compliance with regard to completing their inventories. The Bureau of Indian Affairs is out of compliance. The Bureau of Land Management is out of compliance. The Bureau of Reclamation is out of compliance. Fish and Wildlife Service is out of compliance. The Forest Service is out of compliance; the Army Corps of Engineers is out of compliance; the Tennessee Valley Authority is out of compliance. All these major federal agencies that have a huge chunk of the land base in the United States under their control are out of compliance.

Is the solution to go outside the federal government? Is NAGPRA enforcement something that should not be federally controlled?

No. If it were under the auspices of the Department of Justice—under the Office of Justice Programs and their American Indian and Alaska Native Affairs Program, as one option—we would see more enforcement of the regulations, more prosecutions of illegal trafficking. This option would at the very least resolve the conflict of interest that the National Park Service and the Department of Interior have in administering and ensuring compliance with NAGPRA. In my opinion, Congress needs to respond to the recent findings of the Government Accountability Office report citing the noncompliance of federal agencies with NAGPRA and impose meaningful consequences for those agencies and bureaus that are dragging their feet [see sidebar]. There are just not enough resources for the NAGPRA Review Committee and for the National Park Service through the grant programs to really meet the needs of the tribes and the museums that are trying to comply or trying to reclaim cultural material.

On the list of things that need to be repaired immediately in NAGPRA, is the next item the funding available to actually complete the work that the law requires?

Right, to fund it adequately. The program is woefully underfunded, and Congress can help here, too. The program needs to be moved, it needs to be better funded, and the grant program certainly could use more resources.

In the present climate in Washington, what do you think the chances are for increased funding for NAGPRA?

It hasn’t been a priority to this point. There are a few people in the Senate and in the House who are pushing for this. Native Americans represent, probably, less than 2 percent of the population in the United States. There’s not a huge voice out there calling out for change. We’ve got the National Congress of American Indians that is the lobbying group for Native Americans. But I don’t know that there’s a loud enough voice or a critical mass to get the attention of Congress to help address this. There are other priorities for Congress right now. Funding for NAGPRA is probably not something that’s going to get a lot of attention, unfortunately.

You’re somewhat unique in that you have experience in several different realms that NAGPRA comprises: the tribes, the federal government and the museums. From the museum perspective, how do you rate NAGPRA?

It’s hard to put a grade on that, because there’s such a wide spectrum of perspectives in the museum community about NAGPRA. One good thing that NAGPRA has done is to compel museums to have a dialogue with their Native constituents and the descendents of the people who created many of the objects that are in these repositories and museums. That’s a good thing—it’s getting people to talk about things and to talk about perspectives and interpretation and also cultural sensitivities. That has been positive for all museums, now that museums have to open up their doors more and be accountable to the populations or the communities they’re representing in their own institutions. Some people in the museum world might think it’s a nuisance to do that. But the majority of folks will say that it is good that there’s a dialogue now. There’s certainly more understanding.

It’s been a lot of work for museums to produce the inventories that were required under NAGPRA—to go through the compliance process and then the notification process when a claim has been made. There’s been a lot of confusion over the past 20 years regarding the NAGPRA process. In some ways, it’s been a burden on the museums. But on the flip side, it has focused them on understanding what they have in their collections.

So NAGPRA has been a learning opportunity and a chance for museums to deepen their understanding of the Native American collections they hold?

And it’s been a part of a cultural shift within the museum world. For a long, long time—probably up until 20 or 30 years ago—anthropologists, scholars and curators saw themselves as the experts and the knowledge keepers of other people’s cultures. NAGPRA has brought this change in perspective to the forefront. Now people realize that it’s hard to be an expert in somebody else’s culture without really having a relationship with that culture. This next generation of museum professionals and anthropologists are much more open-minded in that regard. If you look at the first three quarters of the 20th century, there wasn’t a good relationship between the academic community and the Native community. Now that’s changing. There’s more of a dialogue and sharing of knowledge back and forth.

Sharing how?

The acknowledgment that members of the community are also experts—even though they might not have a formal degree. And, that they are owners of that intellectual property. There’s more respect now in the academic community for that knowledge. The knowledge is, in many ways, the property of that community, and [academics and experts] need to seek permission to at least collaborate on its presentation in exhibitions, catalogues and academic papers. There’s an acknowledgment that there are actually rights and privileges associated with this knowledge.

What advice do you have for museums attempting to comply with NAGPRA legislation now, after 20 years of experience with the legislation?

There are some people who are only going to do the bare minimum with regard to NAGPRA compliance. And not even that. And some institutions will try to interpret NAGPRA for themselves. My advice to museums—and to tribes, too—is to look at the intent of the legislation. The intent is to acknowledge not only the rights of Native Americans but that they have a voice in the interpretation and ultimate disposition of their associated cultural materials. There is a connection from the past to the present; I think people forget about that. They tend to disassociate things that are in a repository with living, breathing people. If museums understand that this legislation is about connecting the past and the present, and acknowledging the rights and the beliefs of a group of people who may have a different perspective on things, then I think that opens up the dialogue.

It’s complicated with the tribes, too. The tribes have been forced to get their acts together, along with the museums. The museums had to get their inventories in order, consulting with the tribes to determine the affiliation of a lot of the material. But on the flip side, a lot of the tribes weren’t prepared for this, either. Many tribes still don’t have statutes that address cultural patrimony, culturally sensitive materials, the management of those materials and, in some cases, the disposition of those materials, who has ownership within the tribal community or who the caretakers are.

The goal is preservation. And not just the objects, but also the cultures associated with these objects. Some of the best-case scenarios are where museums and tribes are collaborating together. One example is right here in Alaska: The Alaska State Museum in Juneau has an agreement with some of the Tlingit clans in the area to be a repository for their cultural materials, where the community has access to that material for ceremonial use. But they have a safe place to return those objects so they can be preserved for generations. That’s a scenario where NAGPRA has really helped create a positive relationship.

Native American Graves Protection and Repatriation Act

Adapted from the Government Accountability Office (GAO-10-768) report of July 28, 2010

The Native American Graves Protection and Repatriation Act (NAGPRA) required federal agencies and museums to (1) identify their Native American human remains and other objects, (2) try to culturally affiliate them with a present day Indian tribe or Native Hawaiian organization, and (3) repatriate them under the terms in the act. The National NAGPRA office, within the Department of the Interior’s National Park Service (NPS), facilitates the government-wide implementation of NAGPRA. GAO was asked to determine, among other things, the (1) extent to which agencies have complied with their NAGPRA requirements, (2) actions taken by National NAGPRA, and (3) extent of repatriations reported by agencies.

Almost 20 years after NAGPRA, key federal agencies still have not fully complied with the act for their historical collections acquired on or before NAGPRA’s enactment. GAO examined NAGPRA implementation in detail for eight key federal agencies with significant historical collections: Interior’s Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (FWS) and NPS; Agriculture’s U.S. Forest Service; the U.S. Army Corps of Engineers (Corps); and the Tennessee Valley Authority (TVA).

First, all of the agencies acknowledge that they still have additional work to do to fully comply with the act’s requirements to identify all of their NAGPRA items, establish cultural affiliations when possible, and create summaries and inventories of the items.Overall, the Corps, the Forest Service, and NPS did the most work to identify their NAGPRA items. BLM, BOR, and FWS did some work, and BIA and TVA have done the least amount of work. Second, some of the eight agencies, along with some other federal agencies, have not fully complied with NAGPRA’s requirement to publish notices of inventory completion for all of their culturally affiliated human remains and associated funerary objects in the Federal Register.

Until agencies (1) identify all of the possible NAGPRA items in their historical collections, (2) establish cultural affiliations to the extent possible, and (3) publish the required notices, they cannot repatriate their Native American human remains and objects. To fulfill the Secretary of the Interior’s responsibilities under NAGPRA, National NAGPRA has taken some actions consistent with the act, such as publishing notices in the Federal Register and administering a grants program. However, GAO identified some actions of concern. National NAGPRA developed a list of Indian tribes eligible under NAGPRA that was inconsistent with BIA’s official list of federally recognized tribes and departmental policy. Furthermore, National NAGPRA did not always screen nominations for Review Committee positions properly and, in a few cases, inappropriately recruited nominees for Review Committee positions.

Through fiscal year 2009, 55 percent of the human remains and 68 percent of the associated funerary objects that have been published in notices of inventory completion had been repatriated, according to agency data and GAO’s survey results. Agencies are required to permanently document their repatriations, but they are not required to compile and report that information to anyone. Only three agencies—the Corps, the Forest Service, and NPS—centrally track their repatriations. These three agencies, however, along with the other federal agencies that have published notices, generally do not report any of their data on repatriations to National NAGPRA or to Congress. As a result, policymakers, Indian tribes, and Native Hawaiians organizations do not have access to readily available information about culturally affiliated NAGPRA items that have not been repatriated.

According to officials, the remaining items have not been repatriated for a variety of reasons, such as a lack of repatriation requests and financial constraints. GAO recommends, among other things, that the Departments of Agriculture, Defense, and the Interior as well as TVA report to Congress the actions that they need to take to fully comply with the act and that they report the status of their repatriations to National NAGPRA. GAO is also recommending that National NAGPRA make improvements in its facilitation of the act. Agriculture, Interior, and TVA agreed with GAO’s recommendations.

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