The Native American Grave Protection and Repatriation Act (NAGPRA), the law that regulates protection and restitution of American Indian cultural patrimony in the U.S.A., is about to turn its twentieth year since its enactment in 1990. Beyond its legal requirements, NAGPRA has deeply influenced, and in many cases irreversibly changed, assumptions about cultural property, cultural identity, ownership, artifact, interpretation, and representation. Museology, anthropology, archaeology are the disciplines more directly involved in facing such changes and resulting issues.
The article briefly outlines the historical context of collecting American Indian artifacts, including human remains, and how nowadays NAGPRA provisions regulate acquisition and protection of Native American cultural patrimony.
On a sunny afternoon of May 1988 an unusual, small procession composed of Zuni Indians religious leaders and tribal councilmen walked through the streets of Midtown Manhattan. It was, in the words of a witness, “A minuscule homecoming parade that took place under the eyes of hundreds of New Yorkers sitting in traffic, striding to a business lunch, or looking down from the Empire State Building at a city that moves so quickly it cannot see its minor miracle.” (Firestone 1988).
The “miracle” happening that day was the Zuni delegation taking back home to the Zuni Indian Reservation (New Mexico), a sacred, highly revered wooden figure called Ahayu:da, or war twin god, that had been illegally removed from its original shrine, and later landed up in the collection of the artist Andy Warhol (1928- 1987):
“Known popularly as “war gods” the Ahayu:da are twin gods who serve primarily as protectors of the Zuni people[...]. Each year in ceremonies at the winter solstice the leaders of the Deer clan create an image of the elder brother, Uyuyewi, in sculptural form, while the leaders of the Bear clan create an image of the younger brother, Ma’a'sewi. These images, carved from cylindrical pieces of cottonwood or pine about 50 to 78 cm long, feature a stylized face, torso, and hands. Bundles of prayer sticks and other offerings are attached around its base [...]. The images of Ahayu:da are entrusted to the bow priests (also called war chiefs), who place them at one of a number of shrines on the mesas surrounding Zuni Pueblo. The new Ahayu:da replaces an existing one that is now placed on a pile of “retired” images to remain an integral part of the shrine, gradually disintegrating the returning to the earth [...]. Once the Ahayu:da are installed at a shrine, no one has the authority to remove them. Zuni religious leaders believe that to do so unleashes their great powers, resulting in a wanton destruction and mayhem.” Merrill, Ladd, Ferguson 1993
While in the Zuni cultural system the Ahayu:da possess such a crucial significance that even their replicas and images are considered sacred, in the Western view they have been usually perceived as “exotic”, “primitive” objects, extremely fascinating especially among artists. Paul Klee’s Mask of Fear, painted in 1932 and now at the Museum of Modern Art in New York, was probably inspired by the very Zuni war god that the Berlin Museum of Ethnology, in Germany, still includes among the Zuni regalia and sacred objects “collected” by the American ethnographer Frank Hamilton Cushing (1857- 1900) for this Institution at the end of the 19th century.
When in 1988, a year after Andy Warhol’s death, his art collection was put up for auction by Sotheby’s in New York City, William L. Merrill, a young anthropologist already involved with the repatriation of Zuni religious items from the Smithsonian (currently he heads the Ethnology division at the Smithsonian National Museum of Natural History), alerted the Zunis about the presence of the war god in the upcoming New York auction. With the help and legal intervention of the U.S. Department of Justice, the Zuni requested the restitution of the war god, and after the positive response of the Andy Warhol Foundation, and despite some resistance from Sotheby’s – already involved in a similar situation a decade before- the case was settled with the removal of the sacred figure from the auction and the consequential restitution to the Zuni people.
Today, after years of a persistent campaign of claims and negotiations with various counterparties, public and private as well, and with the help of a new federal law enacted in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA), many of the stolen Ahayu:da have been recovered and relocated in their shrines to complete the intended cycle of their physical existence, and so finally disintegrating and returning to the Earth.
Native America collected
The systematic pillage of American Indian cultural patrimony dates back to the very inception of the “scientific exploration” of the American Southwest in the late Nineteenth century, and so of the American archaeology tout court:
“American Indians were perceived as “specimen” to be empirically investigated and objectively understood. [...] Anthropologists studied American Indian by digging up their graves and exhibiting Indian people in “ethnographic zoos” [...] Native people became “living fossils”, sometimes tucked away int he museums of America; when these “museum Indians” died, their bodies were sometimes boiled, the bones numbered and store away as part of America’s greater heritage.” (David Hurst Thomas 2008)
The abundance of well-preserved sites and artifacts in the very places where contemporary Indians were still living, and the widespread ideological framework that Indian people were soon to “vanish”, fostered the organization of the expeditions to collect and document as much as possible about them. On October 12, 1879, James Stevenson (1840- 1888), leading with his wife Matilda Coxe Stevenson (1849- 1915) the first Smithsonian Institution expedition to the Rio Grande Pueblos and Zuni Pueblo in New Mexico, and the Hopi villages in Northeastern Arizona, wrote to John Wesley Powell, director of the Bureau of Ethnology, just established within the Smithsonian:
“Our success has been beyond our expectations. I brought from Zuni yesterday two large wagon loads- loaded up to the bows- comprising the most curious and choice specimen ever gathered from this country, and I send the wagon back early in the morning for another large load.” (Miller 2007)
The United States Southwestern territory was a unique open field for studies and research, not to mention for collecting: “For the Southwest, which is probably the most heavily collected region of Native America, it [collecting] has never really stopped since the Smithsonian started in 1879.” (Jacknis 2008)
The fascination exerted by such a cultural context- real and mythical at the same time- also attracted foreign explorers: Swedish Gustaf Nordenski öld (1832-1901), universally remembered for being the first to study the cliff dwelling of Mesa Verde in Colorado, while working there in 1891 for the Swedish Museum of Natural History, amassed hundreds of artifacts which he shipped back to Sweden. Among those “artifacts”, as usual, there were human remains (skulls, skeletons, bones) today still held by the Museum of Culture in Helsinki (Finland).
Avidly amassing American Indian objects was not a scholar’s prerogative solely. All over the Country amateurs and collectors, for the most various reasons and purposes, entered into the arena as well, in many cases crossing inexorably their paths with those of the scholars already working in the field: the example of George Gustav Heye (1874- 1957) and “his” Museum of the American Indian is the most obvious, nonetheless the most emblematic. Established in New York in 1916 along with the Heye Foundation, the Museum held a huge, unparalleled collection- ranging with no solution of continuity form Alaska to Tierra del Fuego- that George Gustav Heye built the expertise of professional anthropologists and archaeologists like Franz Boas (1858- 1942), who supervised the acquisition of major collections from Northwest Coast Indians, andGeorge H. Pepper (1873- 1924) with whom, in 1914, Heye personally excavated a Munsee Indian cemetery in New Jersey, removing from the burials artifacts and human remains, equally regarded as “American antiquities”.
But the example of the Heye Museum is also paradigmatic for another reason, a reason- we like to think- with an inkling of an act of nemesis: after Heye’s death in 1957 the Museum and the Foundation experienced a long period of cultural limbo associated with financial difficulties. After years of unsuccessful attempts to ensure its fate and survival finally in 1989 the ownership was transferred to the Smithsonian Institution. Congress enacted a federal law, the National Museum of the American Indian Act (Public Law 101-185) that at the same time, significantly, established a “living memorial to Native Americans and their traditions”, i.e. a “national museum devoted exclusively to the history and art of cultures indigenous to the Americas” within the Smithsonian museum’s system; and policies and guidelines for the return, repatriation, of human remains and associated funerary objects, sacred objects, and objects of cultural patrimony in the Smithsonian collections to pertaining Indian tribes. The following year, on November 16, 1990, a new federal law, the Native American Graves Protection and Repatriation Act (Public Law 101-601) extended those policies and guidelines to all museums and agencies possessing American Indian collections and receiving federal funds. Also, the law enacted rules for conducting archaeological excavations, and rules for inadvertent discoveries, both on federal and tribal lands. Finally, the law prohibits the illegal trafficking Native American human remains and cultural items.
The Native American Graves Protection and Repatriation Act (NAGPRA)
When the Native American Graves Protection and Repatriation Act became national law almost twenty years ago, many museum professionals with different backgrounds (archaeologists, anthropologists, art curators) alarmingly foreshadowed an apocalyptic scenario, with artifacts fleeing from the display cases, leaving behind empty spaces. Of course, such a thing has never happened, and will never happen.
What the law, in brief, mandates is that all institutions (Federal agencies, local agencies, museums, historical societies, university collections) receiving federal fund (through grants, loans, contracts) identify Native American items (including human remains) in their collections, writing out inventories, i.e. item by item lists, and/or summaries, that is detailed descriptions about kind of objects and number included in the collection, means and dates of acquisition, geographical and cultural affiliation (meaning the shared collective identity that can be traced back from a present day Indian tribe to an identifiable earlier group) that must be completed in consultation with appropriate tribal government officials and traditional religious leader. Where cultural and geographical affiliations of human remains are unknown or uncertain, a separate inventory must be compiled. Once the cultural affiliation has been determined, museums and federal agencies must send notice to lineal descendants (individuals tracing ancestry directly and without interruption to known Native American individuals whose remains, funerary objects, or sacred objects are covered by the law) or affiliated tribes who might claim the repatriation. After a museum or federal agency receives, reviews, and agrees on the repatriation request, procedures for the actual restitution initiate. Finally, notice of inventory/summary completion, and notice of intent to repatriate must be sent to the National Park Service, NAGPRA National Program, which provides assistance and guidance for the implementation of the law in behalf of the U.S. Department of the Interior, in order to be published in the Federal Register, the official, juridical daily publication of the Office of the Federal Register, National Archives and Records Administration (NARA). In addition to human remains, the cultural items covered by NAGPRA are:
a) Funerary objects: Objects intentionally placed, as part of the burial rite or ceremony, with the human remains of an individual either at the time of his/her death or later. For the purposes of the law, funerary objects are defined “associated” when the human remains with which they were found are in the possession of the museum as well, and as “unassociated” when otherwise. For instance, associated funerary objects are the brass or copper bracelets, fragments of ceramic vessels, plum pits, steatite shard sample of hematite, string of disc-like and tubular shell beads, worked bone square, unearthed with human remains of 17 individual by the New York State Museum archaeologists in 1911 from an early historic Seneca village associated with two burial sites. After having identified the geographical and cultural affiliation of human remains and objects in consultation with representatives of the Seneca Nation of Indians, in September 2008 the Museum initiated the procedure for the repatriation of both cultural items to the Seneca Nation of Indians.
Unassociated funerary objects are the shaman headdress, bone necklace, amulets, and an ivory burial figure that the Western reserve historical Society of Cleveland, Ohio, in consultation with the Central Council of the Tlingit & Haida Tribes, has concluded would have been buried with a shaman at the time of death or later as part of the death rite or ceremony, and so they have been removed from a specific burial site of an Native American individual. Therefore, even if the Western Reserve Historical Society has no possession of the physical remains of the shaman, those objects are nevertheless funerary objects, and so to be repatriated to the Central Council of the Tlingit & Haida Indian Tribes.
b) Sacred objects: Specific ceremonial objects needed by traditional Native American religious leaders for performing duties and practices related to Native American ceremonial or religious traditions for the benefit of present day adherents. A suitable example are prayer sticks, like those removed in 1952 from a cave in Nevada known as “Prayer Cave”, sacred to the present-day Northern Paiute Indians as well because regarded for having medicinal properties. The prayer sticks were donated to thePhoebe A. Hearst Museum of Anthropology, University of Berkeley, California. In 2008, the Museum, after consulting with representatives of the cultural affiliated tribe, the Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch, Nevada – who reaffirmed the tribe’s belief that Prayer Cave and its contents are sacred, and that both are part of on-going ceremonies and beliefs – initiated the repatriation process to the Yerington Paiute Tribe.
c) Objects of cultural patrimony: Objects having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe, and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group. A clear example of this category is the wooden feast dish carved in the shape of a beaver that the American Museum of Natural History in New York City has repatriated in 2008 to the Central Council of the Tlingit & Haida Indian Tribes of Alaska. The Tribes reclaimed the dish in behalf of the Deisheetaan Clan (Beaver Clan) of Angoon, the village in Southwest Alaska shelled and destroyed in 1882 by the U.S. Navy. The fact that the dish is one of only a few items surviving that event corroborates its historical and cultural importance to the Tribes shared identity awareness.
The repatriation process is not always as simple and consequential as in the examples quoted above, where the museums involved possessed precise historical records about the circumstances of the acquisition. In frequent cases, other factors can determine different outcomes: first of all, federal agencies and museums are not required to repatriate cultural items for which no cultural affiliation to a present-day Indian tribe has been established, at least until the issue has been clarified through further researches and consultations, and resolutions or agreements have been reached among the involved tribes and/or museums.
Also, sometimes Indian Tribes want human remains or funerary objects to stay in the museums because of their traditional view about dead, as in the case of the Navajo People, who believe that there is a potential for harm in dealing, or even discussing it, therefore the current repatriation policy of the Navajo Nationprevents them from actually doing reburials on the Navajo Reservation, and defers to others handling the matter. Or, as in the case of human remains and funerary objects from the Sand Creek Massacre site repatriated by the National Museum of the American History to the Cheyenne of Oklahoma:
“Cheyenne representatives and elders eventually made museum staff aware of their decision to leave a particular collection of funerary objects at the museum for the educational benefit of Cheyenne tribal members and on-Cheyenne researchers who might want to conduct research on these historic materials in the future.” (Killion 2008)
Another reason for delaying the actual return is the growing concern about objects that, while stored in museums, have been treated with chemical substances, like arsenic or mercury, in order to preserve them, and so they can bear toxic residuals. Since the objects might be used in public ceremonies, they represent a possible health threat to the tribal community, and to the tribal designated handlers of those artifacts: sometimes the tribe wants the objects tested for poison before being repatriated, and that often requires long and expensive procedures slowing the effective return to the Tribe.
And yet, despite its legal requirements, its convolutions and, sometimes, contradictions, it is undeniable that the Native American Graves Protection and Repatriation Acts has, helped, volens ornolens, to substantially redefine the relationship between Native People and museums, where Native communities can exercise authority and control of knowledge as equal partners with scholars and museum professionals, and where their traditional knowledge is no more considered pure mythology or superstition, but a crucial tool to interpret and understand the data collected by researchers:
“Repatriation is about fundamentally about sharing, about a bridging of perspectives and practice – between anthropologists and museum professionals and descendant communities and the public – that has the potential to broaden our awareness and understand of human diversity and human experiences.” (Loring 2008)
And from an American Indian perspective:
“NAGPRA and cooperative curators have allowed us to rethink our relationship with our ancestors, to reaffirm our shared values, to learn more about the archaeological record, and basically to ask ourselves: What are the most important spiritual traditions that we need to keep alive?” (Hill Sr. 2006)
The Native American Grave Protection and Repatriation Act (NAGPRA) and illicit trafficking
Finally, another crucial issue NAGPRA deals with is the illegal trafficking in American Indian cultural patrimony and human remains. The law prohibits selling, purchasing, using for profit, or transporting for sale or profit human remains of a Native American, and/or Native American cultural items obtained without the voluntary consent of an individual or group that had authority of alienation on such objects. Specifically about human remains and associated funerary objects the meaning is obtained without full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe. Penalties for breaking these provisions include fines of up to $100,000 and/or one year of imprisonment, and in case of subsequent violation five years.
One of the first judicial cases in which NAGPRA was applied is the 1996 trial against Richard Corrow a dealer in Native American Art based in Scottsdale, Arizona, whose hearing and conviction have already become a typical case-law. In brief, Corrow was charged and sentenced for trafficking in Native American cultural items having tried to sell twenty-two Navajo ceremonial masks, or Yei B’Chei (considered among the most sacred items of Navajo religious practice) to an undercover federal agent. In his defense and then in appealing the sentence, Corrow – supported by theAntique Tribal Art Dealers Association challenged the constitutionality of NAGPRA critical definition of “cultural patrimony” by reason of its vagueness which, according to his argument, misleads the unwary because of its multiple meanings. The prosecution proved the accuracy of the definition and its applicability to the Navajo ceremonial masks; therefore Corrow was sentenced to two concurrent five-year probationary terms and one hundred hours of community service. In a similar case, in 1998 the owner of a well-known shop of natural history collectibles in New York City was convicted for selling American Indian human remains of Seminole and Peoria ancestry in violation of NAGPRA, and sentenced to one year imprisonment, and pay for the expenses of sending the human remains back to their tribes for reburial.
These instances, in addition to their significance as legal precedent, testify exhaustively about the strong demand for these artifacts both in the legal and illicit market, where the borderline in between is often very faint. Current auction prices start at 14,000 dollars for a 19th century Hopi Kachina doll; 4,500 for a small Anasazi (Ancestral Puebloan) black-on-white earthen jar; 30,000 for a mid-19 th century Chilkat ceremonial dance blanket; 20,000 for a prehistoric zoomorphic dagger, and so forth. On the other hand, in the illegal market prices can reach million of dollars, as in the case of the eagle-feathered headdress worn by Apache spiritual leaderGoyathlay (Geronimo, c. 1829-1909) that was put on sale in 1999 for 1.2 million dollars (recovered by an undercover federal agent). And we must not forget the constant, less sensational, nevertheless profoundly destructive activity of pothunters and looters, who also supply the demand of minor collectors for pottery, potsherds, stone knives, beads, bone tools, arrow points: “Many looters do not limit themselves to small tools that can be carried in a backpack but will use backhoes and other heavy equipment to completely devastate an area. The looters remove all the valuable and sellable items out of the ground and then simply bulldoze over the entire area. Once this type of destruction has happened, it is impossible to ever know the historical and archaeological context of the site, and that information is lost for ever”. This testimony given by John Fryar, enrolled member of the Pueblo of Acoma, New Mexico, and criminal investigator for the U.S. Department of Interior, Bureau of Indian Affaires (BIA), before the U.S. Sentencing Commission on February 26, 2002 confirms how irreparable the loss of information about the context of an artifact is, and how it steals the right to knowledge from all of us.
Since its passage on November 16, 1990 the Native American Graves Protection and Repatriation Act, beyond its legal requirements, has profoundly influenced, and in many cases radically changed, the way museums acquire, preserve, interpret and display Native People’s cultural heritage, not only in a specific country, the United States of America, but all over the world. Key-concepts like consultation and collaboration, clearly stated in the provisions of the law, have become internationally shared practices involving Native communities, scholars, and museum professionals together. All that has contributed to challenge the no more univocal definition of cultural patrimony and cultural identity, consequently their mutual relationship in a world scenario that constantly renegotiate their meanings and boundaries.
In 1987 acclaimed Luiseño artist James Luna presented his seminal work The Artifact Piece at the San Diego Museum of Man’s Hallof Kumeyaay Indians. Lying motionless for hours on a bed of sand inside a glass display case, surrounded by personal items and ceremonial objects from the Luiseño reservation, arranged and labeled as in the other exhibits of arrowheads or pottery around him, Luna’s purpose was to challenge the way museums represent and display Native people and cultural objects. Later, he said that what kept him going was the awareness that at the end of those hours, he could get up and leave; the Kumeyaay Indians represented in the objects around him could not. He was wrong.
Heye, George G., and George H. Pepper, 1915. Exploration of a Munsee Cemetery near Montague, New Jersey, New York: The Museum of the American Indian, Heye Foundation
Miller, Darlis A., 2007. Matilda Coxe Stevenson: Pioneering Anthropologist, Norman: University of Oklahoma Press: 37
Bolz, Peter, and Sanner Hans- Ulrich, 2000. Native American Art: The Collections of the Ethnological Museum Berlin, Seattle: University of Washington Press, 109-113
NordenskiÃ¶ld, Gustaf, 1893. The Cliff Dwellers of the Mesa Verde, Southwestern Colorado. Their pottery and Implements, Chicago: P.A. Norstedt & Soner
Jacknis, Ira, 2008. A New Thing? The National Museum of the American Indian in Historical and Institutional Perspective. The National Museum of the American Indian: Critical Conversations, Ed. A.J. Cobb and A. Lonetree, Lincoln: University of Nebraska Press: 7
Thomas, David H., 2008. American Archaeology in the Twenty-First Century: Back to the Future? Opening Archaeology: Repatriation’s Impact on Contemporary Research and Practice, Ed. Thomas W. Killion, Santa Fe: School for Advanced Research Press: 57
Hill, Richard W., Sr., 2006. Making a Final Resting Place Final: A History of the Repatriation Experience of the Haudenosaunee.Cross-Cultural Collaboration: Native People and Archaeology in the Northeastern United States, Ed. Jordan E. Kerber, Lincoln: University of Nebraska Press: 4
Firestone, David, 1988. Rescue in Manhattan: A Zuni God goes Home, Newsday- Long Island, May 27
Merrill, William L., Edmund J. Ladd, and T.J. Ferguson, 1993. The Return of the Ahayu:da: Lessons for Repatriation from Zuni Pueblo and the Smithsonian Institution, Current Anthropology, 34 (5): 523-67
Loring, Stephen, 2008. The Wind Blows Everything off the Ground: New Provisions and New Directions in Archaeological Research in the North. Opening Archaeology: Repatriation’s Impact on Contemporary Research and Practice, Ed. Thomas W. Killion, Santa Fe: School for Advanced Research Press: 183
Killion, Thomas W., 2008. View from the Trenches. Opening Archaeology: Repatriation’s Impact on Contemporary Research and Practice, Santa Fe: School for Advanced Research Press: 137