Who Owns The Native American Heritage

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WHO OWNS THE NATIVE AMERICAN HERITAGE: THE UNRESOLVED
ISSUE OF THE REPATRIATION OF NATIVE AMERICAN
SACRED AND CULTURAL PATRIMONY
by
Phoebe R. Sioane
submitted to the
Faculty of the College of Arts and Sciences
of The American University
in Partial Fulfillment of
the Requirements for the Degree of
Master of Arts
in
Performing Arts: Arts Management
Chair: 0 *_ G
Valerie Morris
Charies Crowder
Norma Broude
Desundf College of Arts and Sciences
1996
The American University
Washington, D.C. 20016
THE AMERICAN UNIVERSITY LIBRARY
UMI Number: 1383908
UMI Microform 1383908

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WHO OWNS THE NATIVE AMERICAN HERITAGE: THE UNRESOLVED
ISSUE OF THE REPATRIATION OF NATIVE AMERICAN
SACRED AND CULTURAL PATRIMONY
BY
Phoebe R. Sloane
ABSTRACT
For centuries, Native Americans have battled museum professionals, scientists, and
the Federal Government over the ethical and legal rights to Indian artifacts and human
remains. The problem is still unresolved. This paper discusses this controversy, which
has intensified over the past 25 years, focusing on influential Federal legislation, and
arguments posited by Native American tribal and advocacy groups, museum
professionals, and scientists.
Both primary and secondary sources, Native American groups, educators, museum
professionals, archaeologists, legal experts, and Federal Government officials were
consulted. These sources discussed current situations and opinions, presented diverse
viewpoints, and illustrated a spirit of compromise which has evolved within the museum
and scientific communities.
Over the past 25 years, Native Americans have demanded greater recognition of
their civil and cultural rights. As a result, Federal laws have evolved that enable them to
protect their sacred artifacts and ancestral remains. In addition, the museum and
scientific communities have developed greater awareness and understanding of
contemporary Native American concerns. This progress is impressive. However, it is
apparent, as this paper concludes, that this complex and sensitive issue is far from
resolution.
ii
TABLE OF CONTENTS
ABSTRACT..........................................................................
Chapter
1. INTRODUCTION................................................................................................. 1
2. BACKGROUND HISTORY OF THE TREATMENT OF NATIVE

AMERICANS AND THE CONQUEST OF NATIVE AMERICAN
ARTIFACTS AND HUMAN REMAINS........................................................... 5
Conquest of Native American Territory
Obsession with the Collection of Native American Artifacts and

Human Remains and the Growing Prejudice Against Native
Americans
Collecting in the 20th Century
3. SURVEY OF 20TH CENTURY FEDERAL POLICY AND

LEGISLATION REGARDING REPATRIATION.......................................... 13
Federal Legislation 1906-1990
State Law and Repatriation
4. RELATIONS BETWEEN NATIVE AMERICANS AND MUSEUM

AND SCIENTIFIC COMMUNITIES............................................................... 38
Museum and Scientific Communities' Response to Repatriation
Native Americans' View of Repatriation and Relations with

Museum and Scientific Communities
5. CASE STUDIES................................................................................................ 58
The San Xavier Bridge Project: The Arizona State Museum and
the Tohono O'Odham Nation
The Denver Museum of Natural History and the Zuni War Gods
The Nez Perce Tribe of Idaho and the Ohio Historical Society
iii
6. REPATRIATION AS AN INTERNATIONAL ISSUE................................... 68
7. CONCLUSION....................................................................................................73
BIBLIOGRAPHY...................................................................................................................76
iv
CHAPTER 1
INTRODUCTION
Throughout the history of the United States, there has a been conflict, still
unresolved, over who owns the rightsethically and legallyto the cultural artifacts and
human remains of Native Americans.1 The controversy has focused on the issue of
repatriationwhether Native Americans are entitled to have returned to them the artifacts
and human remains of their religious and cultural patrimony.2 This conflict has persisted
for centuries. Despite extensive efforts to reach a consensus, the interested parties
Native American groups, museum professionals, scientists, and the Federal Government
have been unable to resolve this complex issue of national import.
The issue of repatriation involves the conflict of significant values and beliefs that
exist among interested groups. Millions of artifacts and skeletons from distinct Native
American tribes are housed in museums and institutions across the country under the care
of museum professionals and scientists.3 The museum and scientific communities have
taken varied positions on this issue. At one extreme are a small number of curators,
directors, archaeologists, and anthropologists who believe that the Native American
heritage can best be preserved through the expert care of curators, scientists, and
conservators. They view repatriation as the burial of a Native American past.4 Many
1 As used in this paper, the term Native American has the same meaning as under the 1990 Native
American Grave Protection and Repatriation Act. A Native American is any individual who is an Indian, a
Native Hawaiian, Alaskan Native, or Aleut or Inuit. An Indian is anyone who is a member of a tribe that is
recognized by the Federal Government and thus eligible to receive benefits as an Indian. A non-Indian is
any individual who is not recognized by the Federal Government as a Native American.
2 As used in this paper the term patrimony means the ancestral artifacts and remains of Native Americans.
3 U.S. Congress, Senate, Committee on Indian Affairs, Native American Grave Protection and
Repatriation: Hearing Before the Select Committee on Indian Affairs, 100th Cong., 2nd sess., 14 May
1990,51.
4 Judith Weintraub, "Museums Sets Policy on Indian Remains: Smithsonian Eases Returns of Objects," The
2
scientists and museum professionals fear that repatriation of artifacts and human remains
will prohibit them from fulfilling their mission of preserving Native American traditions
and beliefs for future generations.5 They also believe the repatriation of prehistoric and
historic skeletal remains and artifacts will have a devastating effect on the advancement
of scientific study.
At the other extreme is an even smaller number of museum professionals and
scientists who believe that ethically, Native Americans have the right to reclaim every
object, artifact, and bone fragment sacred to their tribes.6 Most professionals in the field,
however, believe there is a middle ground. Curators, archaeologists, and important
groups such as the American Association of Museums (AAM) support the concerns of
their more inflexible colleagues on both extremes, but believe that working with
individual tribes on a case-by-case basis will improve relations with Native Americans,
foster compromise, and in the end prove more beneficial for all involved.7
Native Americans represent tribes with diverse beliefs and practices from all over
the Nation. They believe as a people that it is their right to control the fate of the pieces
of their culture and religiontheir tribal identity. It is difficult for the Native American
community to understand the ongoing fascination with excavating, collecting, and
displaying Native American objects, ceremonial artifacts, and in particular Native
American human remains.8 Tribal leaders and advocacy groups such as the Native
American Rights Fund (NARF) continue to successfully defend the rights of Native
Americans to repatriate their cultural and sacred patrimony. They too, however, are
Washington Post, 6 March 1991, sec. B l.

5 James Nason, "Finders Keepers," Museum News, March 1973, 21.
6 Nason, 21.
7 American Association of Museums, "Policy Regarding the Repatriation of Native American Ceremonial
Objects and Human Remains," Washington, D.C., 15 January 1988.
8 Larry Zimmerman, "Sharing Control of the Past," Archaeology, November/December 1994, 67.
3
willing to work with the museum and scientific communities toward a compromise in
resolving individual disputes. Native Americans have assumed a stronger role,
demanding respect and recognition from the museum and scientific communities as well
as the Federal Government. Native American activists and advocacy groups have
influenced museum professionals and scientists to seek positive relations with tribes.
They have also played a part in the introduction of Federal legislation affecting the
protection and repatriation of Native American culture in recent years.
The Federal Government plays a major role in this controversy as well. Federal
legislation throughout the 20th century reflects the fluctuating national sentiment toward
Native Americans and their right to protect their cultural and sacred material. This
shifting sentiment has influenced museum and science organizations in their activities
and policies regarding Native Americans and repatriation.
This paper traces the historic mistreatment of Native Americans and their sacred
materials by the United States. It also shows the progress over the last half of the 20th
century by the museum and scientific communities and the Federal Government in
addressing the Native American concern.
Chapter two provides a brief background history of the United States political,
social, and judicial treatment of Native Americans. This Chapter presents the historic
development of the Nation's fascination with excavating and collecting Native American
artifacts and burial remains, focusing on the role the Federal Government and museum
and scientific communities played. Chapter three surveys the development of relevant
20th century Federal policy and legislation beginning at the turn of the century and
ending with the Native American Grave Protection and Repatriate Act of 1990
(NAGPRA). It examines the impact of these laws on repatriation and the attitudes and
reactions of the groups involved. Next, the relationship between Native Americans and
the museum and scientific communities is discussedspecifically, how they have dealt
with the repatriation issue, and the spirit of compromise and understanding that has
developed among the groups. Individual case studies involving cooperative relationships
between Native American tribes and museum professionals and archaeologists are
analyzed. Finally, the thesis briefly addresses repatriation as an international issue. It
also examines the questions how and whether the Native American situation can be
compared to conflicts abroad.
CHAPTER 2
BACKGROUND HISTORY OF THE TREATMENT OF NATIVE AMERICANS
AND THE CONQUEST OF NATIVE AMERICAN CULTURAL
ARTIFACTS AND HUMAN REMAINS
Conquest of Native American Territory
In 1491, Europeans arrived in North America where Native Americans had been
living for more than 20,000 years. Native American tribes inhabited the entire land, from
the Passanamaquoddys of Maine to the Hoida of Alaska.
Archaeologists estimate that the Native American population in 1491 numbered in
the hundreds of millions and that 170 separate languages were spoken by tribes located
north of Mexico.9 These tribes varied in socio-economic and governing systems. For
example, their economic base ranged from hunting and fishing to agriculture, herding,
and manufacturing. Some were governed by a matriarchal or patriarchal system; some
were ruled through single tribal leaders or advisors made up of elders.
When the Europeans arrived, Native Americans were brought into contact with non-
Indians from Spain, France, England, Holland, Sweden, and Russia through fur traders,
settlers, farmers, soldiers, clergy, and legalists.10 The Europeans soon entered into a
debate over the rights o f Native Americanswhether they could own the land they
occupied and indeed, whether they had the right to live. The prevailing sentiment was that
genocide of Native Americans was justified because Native Americans were not
9 John R. Wunder, Retained by the People (New York: Oxford University Press, Inc., 1994), 9.
10 Ibid., 12.
considered human.11 This was merely a harbinger of what was to come when Native
Americans came into contact with Colonists in the 17th century and later in the United
States government.
In the mid-18th century, the English Colonists asked their English sovereign to
grant them unrestricted rights over the land Native Americans occupied. Fortunately for
the Native Americans, the English were opposed to any colonial control and denied their
request. At the same time, the English, along with the French and the Dutch, were
signing trade agreements with Native Americans. They recognized individual tribal
sovereignty in order to gain rightful land purchases.
In the 19th century, Americans, now independent of England, used their own land
and trade agreements with the Native Americans to claim rights of conquest over the
tribes. As one commentator noted: "Indian sovereignty was treated as limited sovereignty
by the Federal Government and as nonexistent by many settlers, land speculators, and
even state governments...."12 United States government officials used their power and
control over Native Americans in an effort to assimilate them into mainstream society.
Missionaries moved to tribal territories to convert tribes to Christianity, encouraging
them to sell or leave behind their native garb, ceremonial objects, and religious practices.
Federal laws were passed to further the acculturation process, such as requiring the
cutting of long Native American hair and outlawing such religious practices as the Plains
Indian Sun Dance.13
During the 1850s, U.S. Federal officials signed over 50 treaties with Native
American tribes, often using a combination of deceit and force to acquire 174 million
11 Ibid., 13.
12 Carl Waldman, Atlas o f the North American Indian (New York and Oxford: Oxford University Press,
1985), 190.
13 Ibid., 192.
7
acres of land.14 By 1887, Indian reservations were established, pushing Native
Americans farther West onto the most arid, unworkable land in the country, segregated
from non-Indians. Two hundred years ago there were twelve million Native Americans
in the continental United States. By the turn of this century, as a result of genocide and
disease, the Native American population was estimated to be 250,000.15
Obsession with the Collection of Native American Artifacts and Human Remains
and the Growing Prejudice Against Native Americans
During the early 19th century, Americans developed a fascination with the
excavation, collection, and study of Native American artifacts and human remains. When
Colonists first encountered Native American archaeological sites, such as burial mounds
and tribal monuments, they believed them to be products of Atlantis or even the lost tribe
of Israel. Many scientists believed Native Americans had recently arrived in North
America, and thus lacked archaeological depth. In addition, they believed Native
Americans were too simple to be responsible for sophisticated burial creations and temple
mounds.16
Thomas Jefferson was one of the first Americans to take an interest in collecting
prehistoric skeletons and burial goods found near his home in Virginia. He was
fascinated by the Native American philosophy of death and the idea of creating
monuments to their dead and "he began an American preoccupation with digging and
collecting Native American human remains and burial objects."17 There was a general
interest in understanding more about the origin of Native people, but collectors were less
14 Ibid.
15 John B. Winski, "There Are Skeletons in the Closet: The Repatriation of Native American Human
Remains and Burial Objects," Arizona Law Review {1992): 182.
16 Marcus Price, Disputing the Dead (Columbia MO: University of Missouri Press, 1991), 22.
1990, 284.
interested in learning about their beliefs and practices. Instead, they felt the need to
control and explain that which was foreign and mysterious, first through religious
justification, then, later in the 19th century, through scientific reasoning.
In the 17th and early 18th centuries, Americans felt a religious obligation to explain
the origins of the Native American people to their fellow citizens and the world. They
needed to answer where Native Americans fit into the Bible and Creationism.18
In the late 18th and 19th centuries, scientific theories on the origin of Native
Americans developed. During this period, the rationale for studying Native Americans
changed from religious justification of why Native Americans varied so greatly in
appearance and customs to biological reasons. First, scientists focused on the American
climate and its effects on humans, in particular on their physical characteristics and on
their cultural development. Next, based on French Naturalist Jean Lamarck's theory of
environmentalism, emphasis was placed on the study of whether Native Americans could
adapt mentally and physically to the changes of the 19th century. Scientists believed
Native Americans were resistant to white customs and religion because of a genetic
deficiency and therefore felt it valuable to study their biological make-up and their
inherent inability to change.19
In the early 19th century, the theory of environmentalism came under attack.
Opponents such as former slave holders and frontier entrepreneurs objected to the
possibility that Native Americans could ever change. They asserted that Native
Americans were an inferior race with lower intelligence and capabilities, and could never
adapt to a superior culture.
During this period, Americans were influenced by the European philosophy of
18 Ibid.
19 Ibid.
racial superiority. Europeans were conducting their own studies on skin color and its
relation to different races. Osteological research, the study of the crania, was introduced
in Europe. Studies by such German scientists as Johann Blumenbach and artist Peter
Camper concluded that all races were related in some way but that lower forms, such as
Native Americans and Africans, were closer to the primate species and thus inferior to the
European race.20 French and English scientists adopted this idea and advanced the
science of craniology. They concluded that the smaller the brain, the more inferior the
race. This measurement of brain size led to the science of phrenology which soon took
hold in America.21
Americans studying medicine in Europe were greatly influenced by these studies.
Samuel Morton, a physician from Philadelphia, considered by many as the founder of
American physical anthropology, was one such American.22 In 1823 he returned to
America to find he lacked a variety of human skulls to complete scientific studies. He
began a quest for Native American skeletons and fueled a prejudice against the Native
American people. Morton received offers from looters and bounty hunters across the
country. Doctors from every region including army hospital doctors assisted Morton in
his collection and research. European scientists took an interest in Morton's work and
joined in the search. One collector wrote to Morton:
...The natives are so jealous of you that they watch you very closely while you
wander their mausoleums....There is an epidemic raging among them which carry
them off so fast that the cemeteries will soon lack watchers....I don't rejoice in the
prospect of death of the poor creatures certainly, but then you know it will be very
convenient for my purposes.23
20 Ibid., 288.
21 Winski, 187.
1990, 290.
23 Ibid., 293.
10
Books were published about the results of phrenological studies replete with
prejudicial statements, such as:
Their extreme destructiveness would create a cruel bloodthirst and revengeful

disposition a disposition common to the race....Because of their extremely large
destructiveness combined with their large secretiveness...we may expect them to
glory in scalping the fallen foe, and in butchering women and children."24
Soon phrenology became revealed as quackery, but not before it had reinforced an
even greater prejudice against Native Americans. Hundreds of thousands of ancient
Native American skulls were loaned and often damaged or lost.
Archaeologists, anthropologists, and museums contributed to this prejudice and to
the desecration of Native American burial grounds. Museums, ranging from amateur
freak show displays to reputable institutions also played an important part. Across the
world, many small museums placed skulls and skeletons of Native Americans and
aboriginal people in display cases.25 American collectors and museum officials had no
concern for this treatment of Native American sacred remains and artifacts. For example,
a statement from a member of the Joseph Ives expedition to Colorado in 1857-1858
included: "A third Hualpais turned up this morning; he had features like a toad's, and
most villainous countenance I ever saw on a human being. Mr. Molhausen suggested that
we should take him back and preserve him in alcohol as a zoological specimen."26
With the call for more Native American skeletons, grave robbing increased. People
from all walks of life took part, including country doctors, instructors, Iadies-club
lecturers, journalists, and school teachers.27 The competition between museums in the
24 Ibid., 299.
25 Lynne Duke, "To Whom these Bones, These Bones of History?" International Herald Tribune, 9
February 1996.
1990, 301.
27 Ibid., 310.
11
United States and abroad added to the demand for artifacts and remains. The founding of
the Smithsonian Institution in 1846, the Harvard Museum of Comparative Zoology in
1859, and the American Museum of Natural History in New York in 1891 were major
events for the museum and scientific communities. At the same time, it became a
catastrophic period for Native Americans trying to protect their tribal patrimony.
Institutions with great collections and research facilities instilled pride in their cities
and universities. Several additional museums were founded in Chicago and New York.
Most museum staffs, however, were not trained in anthropology, archaeology, or
collections management and were ignorant of how to care for newly acquired artifacts
and remains. Museums developed relationships with universities, but archaeology and
anthropology were not classroom subjects, and museums did not benefit from scholarship
in this area. Collectors were more like "Indiana Jones" bounty hunters, than educated
scientists or expert in the field of art and culture. For example, Warren Moorehead,
lacking any training or education in science, was hired as an archaeologist by several
museums, including the Smithsonian Institution and the Field Museum in Chicago.
While at the Field Museum, he collected hundreds of Native American remains and
artifacts from the Ohio Valley for the 1893 Chicago World's Columbian Exposition.
After the show, this collection had little value for science or the museum. His collection
was poorly excavated and preserved, and is useless to many present day scholars who
have studied the collection.28
Moorehead's most important goal in excavating the Ohio Valley was not to acquire
the historic artifacts, but to stake the Field Museum's claim to the land.29 He was part of
a competition that developed in the museum world over who could claim a greater
28 Ibid., 311.
29 Ibid.
12
number of burial sites and monuments. Many collections were purchased by or loaned to
European museums. Rivalries developed giving museums the incentive to loot or to
bribe tribal members into relinquishing precious artifacts and skeletal remains. Museums
hired collectors for this purpose. As a result entire Native American villages were
stripped of their cultural and religious patrimony.
Collecting in the 20th Century
Although science and education became more sophisticated in the 20th century,
prejudicial treatment of Native Americans persisted in the museum and scientific
communities. A greater interest in physical anthropology emerged which gave
Americans a sense of national progress. The prevailing view was that to understand the
biological differences of the Native American was to understand his inferior capabilities.
The Federal Government supported this prejudicial view and found that its own study of
Native Americans could assist them in formulating national Indian policy.30
The U.S. military took part in the plundering of Native American burial grounds
through its Army Medical Museum. The Museum, founded in 1862, sought to collect
Native American osteological remains for study and display. Abiding by Federal policy
of the early 20th century, the Surgeon General ordered medical officers to collect
whatever remains were found.31 The collectors were fully aware of how offensive this
was to the Native Americans, but continued to ship stolen remains back to Washington
under the guidance of the Federal Government.
30 Ibid., 329.
31 Ibid.
CHAPTER 3
SURVEY OF 20TH CENTURY FEDERAL POLICY AND LEGISLATION
REGARDING REPATRIATION
The Federal Government has progressed tremendously in acknowledging the rights
o f Native Americans and their need to repatriate tribal artifacts and remains from
museums and institutions across the country. However, it has been an arduous journey.
Chapter two discussed the United States philosophy and treatment of Native
Americans and their sacred artifacts and human remains. It is important to understand
how this treatment and philosophy evolved in the Nation's legislative system. This
chapter presents a brief history of the development of Federal policy and legislation in the
20th century and how it has affected Native Americans and the protection of their
patrimony. This discussion identifies the fluctuation in attitude and sentiment toward
Native Americans and the repatriation issue and the tremendous progress that has been
made over the last two decades.
It was not until the 1930s under Franklin Roosevelt's New Deal that the Federal
Government took a look at the country's treatment of Native Americans. Roosevelt,
considered socially progressive, hired John Collier, the founder of the American Indian
Defense Association, as his commissioner of Indian Affairs.32 During this time, many
changes took place to better Native American living standards. Although the
Administration did not solicit direct involvement from the Native American community
in creating new policies, it signified a beginning.
32 Waldman, 192.
13
14
Congress passed the Indian Reorganization Act o f 1934 which overturned many
hostile laws encouraging assimilation of Native Americans. The Indian Reorganization
Act expanded education, encouraged tribal constitutions, granted Native Americans
religious freedom, gave legal sanction to tribal land holdings, returned unsold allotted
lands to tribes, and required many other actions to improve the lives of Native
Americans.33
After World War II, the tide seemed to shift against Native Americans. The Senate
Service Committee began hearings on dismantling the New Deal and all its specific
benefits for Native Americans. Fervent support for the assimilation of Native Americans
into society developed in the late 1940s and continued into the 1950s and mid-1960s, led
by the new Commissioners of Indian Affairs, Dillon Meyer and Glenn Emmons.34 A
Termination Policy was introduced in 1949, during Herbert Hoovers Reorganization of
Government, to create a complete assimilation of Native Americans into mainstream
society.35 This policy was aimed at terminating Native American tribal culture, tradition,
and religious beliefs and practices. There were to be no special benefits for Native
Americans under the Bureau of Indian Affairs. Reservations were to be closed and a
Native American relocation program was enacted placing Native Americans in urban
areas to further help them assimilate. Congress offered counseling and guidance in
finding employment and residence.36
There were two points of view on this policy. The Truman Administration created
the policy as an answer to the poverty, unemployment, isolation, and general poor
standard of living that Native Americans endured. The Federal Government envisioned
33 Ibid., 194.
34 Ibid.
35 Ibid.
36 Wunder, 99.
15
this policy as an opportunity to make all Native Americans true members of society,
giving them the chance to reap the benefits and opportunities that every citizen enjoys.
Most Native Americans at the time viewed this policy as a destruction of not only
their human rights, but of their dignity. As Native American groups look back on this
period, they view this policy as one of insensitivity, ignorance, and condescension of
those responsible for it. Senator Arthur Watkins of Utah, a leader in the Termination
legislation, is an example. He expressed the intent of the new policy: "With the aim of
equality before the law in mind...following in the footsteps of the Emancipation
Proclamation of 94 years ago, I see the following words emblazoned in letters of fire
above the heads of Indians-These People Shall be Free1."37
Termination Policy carried on into the Eisenhower and Kennedy eras. Throughout
the 1950s and 1960s, more than 109 tribes were terminated and 1.3 million acres of land
occupied by Native Americans was placed in government hands. All Federal-tribal
relationships transferred to the states, and Native American status came to an end. As
Law School Professor Frank Pommersheim explained: "For people intimately connected
with the land as a source of identity and spiritual strength, the loss has been much more
than economical and political; it has been socially devastating."38
The Government's goal was to complete the policy by 1976.39 By the late 1960s
and the early 1970s, however, the civil rights movement and the establishment of vocal
Native American advocacy groups had put an end to this policy.40 Still, damage had
already been done. Any relationship between the Federal Government and the Native
American community that had developed under the Roosevelt Administration was
37 Ibid., 101.
38 Frank Pommersheim, Braids o f A Feather (Berkeley, Los Angeles and London: University of California
Press, 1995), 125.
39 Ibid., 179.
40 Ibid., 98.
16
severed.
Federal officials had an overall lack of understanding and sensitivity to tribal
culture and heritage. This coincides with the legislation that specifically addressed the
Native American repatriation issue. Beginning with the Antiquities Act of 1906, clear
progress can be noted in the development o f the Federal Government recognition of the
Native American community in their efforts to protect and repatriate their cultural and
sacred materials. Also evident is the growing voice of the Native American community
which has served as a catalyst in this progress.
Early legislation focused solely on the preservation and protection of tribal national
treasures. The repatriation of artifacts or remains to tribal owners was not a subject of
legislative debate. Not until the American Indian Religious Freedom Act of 1978 was the
issue of repatriation of Native American property actually addressed by the Federal
Governmentand not until 1990 were burial remains and cultural artifacts repatriated.
Federal Legislation 1906-1990
The Antiquities Act of 1906
The Antiquities Act of 1906 is the Nation's oldest historic and archaeological
preservation statute. This Act gave exclusive control to the Federal Government over all
historic items or artifacts found on federally owned land. It allowed the President to
withdraw public lands in order to protect prehistoric and historic sites, objects, and
remains found on Federal property.41
The Act was intended to preserve these sites for later excavation and research by
individuals and institutions who could obtain permits. Under the provisions of the Act,
the Smithsonian was given complete discretion in making permit recommendations for
41 Winski, 195.
17
applicants representing other museums and institutions. The Smithsonian was then
responsible for reviewing the treatment of artifacts or remains under the care of the
institution or museum. If care was found to be deficient, the Smithsonian acquired the
collection for its own use. The items were at no time to be repatriated to the tribe from
which they originated.42
The Act was ineffective in enabling Native Americans to protect their sacred
artifacts and burial grounds. In fact, this statute was declared unconstitutional in 1974.
The United States Court of Appeals for the Ninth Circuit, which covers part of the
Southwest and the entire Pacific Coast, declared that "its failure to define 'ruin,'
'monument,' or 'object of antiquity' renders the Act unconstitutionally Vague."43
The Historic Sites Act of 1935
The Historic Sites Act was part of Franklin D. Roosevelt's New Deal. Its purpose
was to protect prehistoric and historical antiquities, which included Native American
sacred and historic sites. The Act provided an Advisory Board appointed by the
Secretary of the Interior to settle disputes over the preservation and protection of any
national historic treasures, from national park acreage to monuments. The original Board
was made up of 11 members, the majority of whom represented "academia rather than
aboriginal decent."44 Although there was no direct involvement for the Native American
community at the time of enactment, it was a step forward for Native American
protection and control of their tribal heritage.
The Reservoir Salvage Act of 1960 (RSA)
42 Price, 26.
43 Thomas Boyd, "Disputes Regarding the Possession of Native American Religious and Cultural Objects
and Human Remains: A Discussion of the Applicable Law and Proposed Legislation," Missouri Law
Review, (fall 1990): 893.
44 Price, 26.
18
Under RSA, the Secretary of the Interior was responsible for preserving
archaeological data that might be lost through dam construction projects.45 RSA
pertained specifically to Department of the Interior activities. It sought to protect
prehistoric and historic sites which often included Native American artifacts and remains.
Again, there were no provisions under this Act relating to the repatriation of property to
rightful tribal owners.
The National Historic Preservation Act of 1966 (NHPA)
The NHPA was designed to protect all national historic sites from desecration and
looting under the supervision of the Secretary of the Interior and the appointed Advisory
Board on Historic Preservation. Under the Act, historic sites include districts, buildings,
structures, and objects significant to American history, architecture, archaeology, and
culture. Native American burial grounds and graves are included.46
The Act required Federal agencies to "establish a program to locate, inventory, and
nominate to the Secretary all properties under the agency's ownership or control" that
appeared to qualify for registration on the National Register of Historic Places.47 The
Advisory Council then reviewed the submissions and recommended whether to halt or
continue any Federal activity involving the site or object in question. Under NHPA
provisions, Native American burial sites were protected. However, very few were ever
designated as historic sites.48
The Administrative Procedures Act of 1966
The Administrative Procedures Act gave citizens the right to demand a judicial
45 Winski. 196.
46 Price, 27.
47 Ibid.
48 Winski, 197.
19
review of administrative proceedings conducted under previously enacted legislation.
This did not as readily apply to Native Americans. The plaintiff must have suffered a
legal wrong resulting from a Federal agency action. A Native American could not claim
he had been legally wronged under the Administrative Procedures Act merely because his
tribal culture or tradition had been threatened. A Native American could assert a legal
claim only if he could prove he had been wronged as an individual.49 This Act therefore,
has done little to protect the integrity of the individual tribes.
The National Environmental Policy Act of 1969
Federal agencies are required to file environmental impact statements concerning
the impact of federally assisted projects on the physical and cultural environment. Public
hearings are also required which allow interested groups the opportunity to voice their
opinions about agency activities and decisions. Native Americans have utilized this Act
to their advantage in protecting their sacred land, sites, and artifacts. This legislation is
one of the first examples of non-Indian efforts to protect Native American land and
artifacts, again, however, the focus is on preservation, not repatriation.50
The Archaeological and Historic Preservation Act of 1974 (AHPA)
The reason for enacting AHPA was to extend the scope of the Reservoir Salvage
Act of I960 "to all federal, federally assisted, and federally licensed projects."51 Both the
RS A and AHPA authorized through Federal legislation the removal of Native American
remains and artifacts for scientific research. There was no recognition of Native
Americans' need to repatriate these objects and remains.
49 Price, 28.
50 Ibid.. 28.
51 Winski, 196.
20
The American Indian Religious Freedom Act of 1978 (AIRFA)
The American Indian Religious Freedom Act was signed into law by President
Jimmy Carter in 1978. It was the first Federal legislation that solely addressed a major
interest of Native Americans. Its aim was "to protect and preserve for American Indians
their inherent right of freedom to believe, express, and exercise the traditional
religions...including but not limited to access to sites, use and possession of sacred
objects, and freedom to worship through ceremonial and traditional rites."52
During the drafting of the bill, museums and institutions receiving Federal
assistance were troubled by the inclusion of "use and possession of sacred objects" in the
language of the legislation. Because Native Americans consider any objects used in
cultural or religious ceremonies as "sacred," many museums and cultural institutions
asserted that Native Americans would consider the majority of the objects in museum
collections to be sacred and require their returnobjects such as clothing or pottery not
necessarily considered sacred to museum professionals.53 However, as both parties soon
discovered, AIRFA never legally affected Native Americans' claims to repatriate the
artifacts in question. Through several court decisions, AIRFA proved to be strictly
procedural. Unless a government agency or a private entity associated with the Federal
Government had created a project specifically designed to prevent a tribe from practicing
their religion, the tribe had no legal recourse against the institution.54
Under AIRFA, government agencies and private entities associated with the Federal
Government must merely consider the effect their projects will have on Native American
religious practices and objects. They are not required to do more than this. Repatriation
52 Marie C. Malaro, A Legal Primer on managing Museum Collections ( Washington, D.C.: Smithsonian
Institution Press, 1985), 87.
53 Ibid.
54 Price, 30.
21
is not a requirement.55
AIRFA did, however, provide a significant opportunity for the Native American
community. The provisions of the Act gave Native American representatives a needed
public forum in which to voice their concerns and objections, and aided in increasing
non-Indian awareness of Native American cultural concerns.56
Archaeological Resources Protection Act of 1979 (ARPA)
The Archaeological Resources Protection Act was passed to resolve the ambiguities
of the Antiquities Act of 1906. ARPA introduced the concept of archaeological
resources, (omitted from the 1906 Act), defined as any material remains of past human
life or activities that are at least 100 years old.57 It provided that Native Americans
should be given notice of permits for excavation on non-Indian public land that might
result in harm to Native American religious or cultural sites. This provision, however,
was only advisory, not mandatory. Much like AIRFA, ARPA required consideration of
Native Americans' views by Federal agencies and private entities associated with the
Federal Government.
As a result, the emphasis in the ARPA legislation was on preservation of
archaeological resources, and its effect was to prevent repatriation of prehistoric Native
American remains and artifacts. All objects found on Federal land were deemed property
of the Federal Government and were to be properly preserved in an institution. Artifacts
and remains found on Native American land, however, belonged to the rightful tribe.58
Native American Cultural Preservation Act of 1987 and the Native American
Museum Claims Commission Act of 1988
55 Ibid.
56 Ibid.
57 Boyd, 897.
58 Price, 30.
22
In 1987, then Senator John Melcher introduced the proposed Native American
Cultural Preservation Act to resolve disputes between Native American groups and
museums and government agencies over the rightful ownership of Native American
cultural artifacts and burial remains. This was the first bill introduced in Congress to
directly address the repatriation issue. In 1987, the Senate Committee on Indian Affairs
articulated the significance of the bill:
The Committee believes that the Federal government has an obligation to rectify
this past injustice to Native Americans by creating the opportunity for human
remains to be returned to the tribes and descendants for proper and fitting reburial.59
The bill had three main goals:
1) To solve the controversy between museums, universities, government agencies,

and Native American tribes.
2) To repatriate sacred artifacts and human remains as defined in the bill to tribes
while maintaining access to materials for museums and institutions for research and
study.
3) To resolve all disputes through an objective third party, to accommodate the

interest of all parties, and to avoid an overload of cases in the court system.60
The bill had 3 proposals:
1) To establish a Board to mediate disputes between museums and Native American

groups. The Board would consist of 17 members: six Native Americans from a
variety of tribal regions, two representatives from the museum and archaeology
community, two members from the Senate, two members from the House of
Representatives, the Secretary of the Smithsonian, an individual from the Institute
for American Indian Arts, Secretary of the Interior, Secretary of Agriculture, and
Executive Director of the Advisory Council for Historic Preservation.
2) To establish a national "Native American Center" under the auspices of the

Smithsonian Institution to be housed in the Library of Congress. The Center would
serve as a reference center to provide assistance, financial and technical advice, and
59 Boyd, 925.
60 U.S. Congress, Senate, Committee on Indian Affairs, Native American Cultural Preservation Act:
Hearing Before the Select Committee on Indian Affairs, 100th Cong., 1st session, S. 187. 20 February
1987,6.
23
publications and documentation concerning Native American culture, history, and
traditions. It would also involve an educational program to train Native Americans
in archaeology and conservation of artifacts and art.
3) To confirm amendments to the Archaeological Resources Protection Act.61
The Native American community was satisfied with the bill. Finally there would be
a law providing the opportunity for Native Americans to repatriate their cultural and
sacred property. The museum community, on the other hand, voiced concerns about the
expense they would incur in appraising each item in their collection to be repatriated,
particularly when the Federal Government had not designated any financial
compensation.62
Museum professionals voiced other concerns for the bill as well. For example,
Edward Able, Executive Director of the American Association of Museums (AAM),
testified that museum professionals were concerned about the preservation of fragile
objects and skeletons upon their return to unprepared and ill-equipped tribes.63
Robert McCormick Adams, Secretary of the Smithsonian Institution, testified that
the Smithsonian was supportive of the philosophy of the bill, but was concerned that the
complexity of the issue was not being fully appreciated.
And if I say that I'm hesitant about seeing how to draft a bill at this point, it's
because of the difficulty of the issues rather than because of a sense that no bill is
needed....I can assure you that it is not the position of the Smithsonian that we are
going to hang on to what we've got and resist performing what is clearly a socially
responsible and constructive act....64
Adams also expressed concern over the proposed Native American Museum Center.
The museum community felt this addition would contribute to the already intense
61 Ibid.
62 Ibid.
1987,219.
64 Ibid., 66-68.
24
competition for funds from other institutions with Native American collections.65
Edward Able summed up the museum community's opinion: "...The results this Act
would inevitably produceconfusion, confrontation, and legal and ethical controversy far
in excess of that which exists at present."66
A satisfying consensus could not be met and the bill died in Congress in 1987. In
1988, Senator Melcher reintroduced the bill as the Native American Museums Claims
Commission Act which included the same objectives. It differed from the 1987 bill in
that the Federal Government could "intervene in negotiations between Native Americans
and museums and issue an order mandating the disposition of artifacts or remains."67
The Claims Commission bill also failed of enactment. Senator McCain of Arizona
recommended further review and evaluation of the provisions. It was agreed that the bill
would be put aside until the next year. It was not reintroduced in 1989.
National Museum of the American Indian Act of 1989 (NMAI)
Passage of the National Museum of the American Indian Act in 1989 brought the
dispute over the repatriation issue one step closer to a resolution. NMAI establishes a
new museum under the auspices of the Smithsonian Institution, dedicated to the
exhibition of Native American culture and tradition, including material presenting the art,
music, oral traditions, and history of Native American tribes.68
NMAI was also in answer to the Smithsonian Institution's controversial collection
of 18,000 Native American skeletons and 17,000 funerary objects that were acquired
from the Army Medical Museum, the Heye American Indian collection housed in the
65 Ibid., 220.
66 Ibid., 222.
67 American Association of Museums, "Policy Regarding the Repatriation of Native American Ceremonial
Objects and Human Remains, Washington, D.C., 15 January 1988.
68 Price, 31.
68 Ibid., 30.
25
Bronx, New York, and private collectors. The new museum will consist of three centers-
-a new museum in New York, a storage facility in Suitland, Maryland, and a museum on
the Mall in Washington, D.C.69
Repatriation of sacred objects and human remains represents just one provision of
NMAI. The Act states that all remains housed in the Smithsonian Institution and the
Heye collection are to be identified and inventoried. If the tribal affiliation is determined,
the tribe must be notified within a given time period and allowed ample opportunity to
request the return of the objects or remains.70 The Secretary of the Interior is authorized
to award financial grants to Native American groups to assist in the repatriation process.71
This money goes toward the hiring of archaeological and anthropological professionals,
legal fees, travel, and other related expenses.
Because of the Native American community's determination, repatriation became
the most important issue during the NMAI hearings. The actual planning, funding, and
administration of the Museum facilities took a back seat. A newspaper reporter wrote:
"The repatriation issue so impassioned Native American activists that legislation enabling
the creation of the American Indian Museum was stalled until language committing the
Smithsonian to dealing with the return of objects in its collections or under its control
was incorporated."72 Native Americans made it clear that this was the start of their battle
to restore their cultural artifacts and ancestral remains to their rightful tribes.
Native American Grave Protection and Repatriation Act of 1990 (NAGPRA)
If NMAI was a major achievement for Native Americans, NAGPRA is their
69 Ibid.
70 Winski, 197.
71 Price, 31.
72 Judith Weintraub, "Museum Sets Policy on Indian Remains; Smithsonian Eases Return of Objects," The
Washington Post, 6 March 6 1991, sec. Bl.
26
greatest legislative victory to date. NAGPRA provides the authority and the mechanism
for the repatriation of Native American human remains, funerary objects, sacred objects,
and objects of cultural patrimony.73
NAGPRA was introduced by Senators Daniel Inouye of Hawaii and John McCain
of Arizona in 1990. The bill was signed into law on November 16, 1990, becoming the
most influential Federal legislation to recognize the legitimacy of the Native American
people's desire to repatriate the prehistoric and historic human remains and sacred
artifacts of their ancestors. The law applies to all Federal agencies, federally funded
museums, universities, state and national parks, and historical societies. The Smithsonian
Institution is specifically exempt because it is covered exclusively under the National
Museum of the American Indian Act of 1989. In addition, NAGPRA does not apply to
materials found on private or state property.74
Definitions of ancestral burial remains, funerary objects, and culturally significant
artifacts are clearly outlined in the language of the Act. Funerary objects are defined as
those objects found with the skeleton or near the burial site. Culturally significant
artifacts are those objects which are vital to certain present day sacred practices or
religious ceremonies.75 The term "Native American" is also clearly defined in the
language as any individual who is an Indian, Native Hawaiian, Alaskan Native, or Aleut
or Inuit. An Indian is anyone who is a member of a tribe that is recognized by the Federal
Government and thus eligible to receive benefits as an Indian.76
Repatriation: Oversight Hearing Before the Select Committee on Indian Affairs, 104th Cong., 6 December
1995.
1990, 17.
75 Ibid., 16-17.
76 Ibid., 17.
27
The Act outlines the right of ownership of objects and remains in order of priority.
First priority is given to the lineal descendants of the deceased. If the lineal descendants
cannot be located, ownership is awarded to the tribe with the closest cultural affiliation.
If this information cannot be determined, the tribe who originally occupied the region
where the items were found is granted ownership.77
NAGPRA provides an additional benefit to the Native American community-
greater control over the scientific and museum communities. Scientific and salvage
excavations are allowed with a permit under the Archaeological Resources Protection Act
of 1979. However, under NAGPRA, if scientists choose to excavate on Federal or tribal
land, they must first receive permission from affiliated tribes. If objects are found during
excavation or construction, written notice must be provided to the Federal agency that
manages the land. If found on tribal land, the tribe must receive written notice.
NAGPRA also involves two phases which Federal agencies and museums and
institutions receiving Federal assistance must implement. The first phase involves the
required inventorying and summarizing of Native American collections within a given
time constraint. This includes the origin of each item to determine tribal affiliation and
the circumstances of acquisition. The second phase involves notifying the appropriate
tribe of objects and remains in a collection. Tribes are then granted ample time to request
the return o f their material.78
A review committee was appointed by the Secretary of the Interior to supervise
compliance with and implementation of NAGPRA provisions and policies. There are
Federal financial grants available to assist Native American tribes and museums in
complying with the Act that are administered by the National Park Service. In addition,
77 Winski, 198.
78 Ibid.
28
the statute specifically permits agencies and museums to enter into agreements with
Native American groups. These agreements can prevail over the NAGPRA provisions if
Native American needs are met.79
Problems Encountered by Federal Agencies. Native Americans, and Museum and

Scientific Communities
In May of 1993, the NAGPRA Review Committee published in the Federal
Register the proposed regulations for public review and comment. Copies of the
proposed regulations were sent to all Native American tribes, Native American
organizations and advocacy groups, scientific and museum organizations, and Federal
agencies. Comments were received from 13 tribes, 10 Native American organizations,
nine museums, seven universities, and three national scientific and museum
organizations.80 After consideration of all comments and suggestions, the Review
Committee re-evaluated and revised the regulations. The proposed final regulations were
submitted to the Secretary of the Interior in September, 1995 and were published in final
form on December, 4, 1995.81
On December 6, 1995, the Committee on Indian Affairs conducted an Oversight
Hearing of NAGPRA to hear from all interested constituents regarding the final
regulations.82 During this hearing, Federal agencies such as the National Park Service
(NPS) which implements and monitors the program, presented problems they have
experienced in administering NAGPRA policies and procedures. Native American,
museum and scientific communities also voiced the concerns and problems they have
79 Price, 33.
1995.
81 Ibid.
82 Ibid.
29
encountered in complying with the law. The following is a presentation of these
concerns. (A discussion of the relations between Native Americans and the museum and
scientific communities as well as their opinions regarding repatriation are presented in
chapter 5.)
National Park Service Concerns
The National Park Service testified that administration of NAGPRA policies and
procedures has presented a financial burden to Federal land management agencies such as
the NPS, the Bureau of Land Management, and the National Forest Service.83 Katherine
H. Stevenson, Associate Director of Cultural Resource Stewardship and Partnerships of
the NPS, testified concerning the need for increased funding to cover expenses involved
in reviewing information, establishing cultural affiliation, and promoting ongoing
dialogue between Native American tribes, Federal agencies, and the museum and
scientific communities.84
Native American Concerns
Native Americans are enthusiastic about the statement NAGPRA presents. "These
measures may very well constitute the most important civil rights and human rights
legislation for Native American people since the passage of the American Indian
Religious Freedom Act in 1978."85 Walter Echo-Hawk, a staff attorney for the Native
American Rights Fund testified to this in a 1990 NAGPRA Hearing before the
Committee on Indian Affairs. Echo-Hawk who is a leader in the cause of Native
American civil rights and participated in the drafting of NAGPRA, explained the
83 Ibid.
84 Ibid.
1990, 177.
30
significance of NAGPRA provisions for Native tribes:
1. Grants legal protection of Native Americans' dead;
2. Allows Native Americans to bury their dead under specified repatriation

guidelines and procedures; and
3. Restores stolen or improperly acquired property to rightful owners upon request.
These provisions are basic human rights which most Americans take for granted. It
is evident from the thousands of dead Native Americans that lie in museums, universities,
government agencies, and tourist attractions that the laws protecting the sanctity o f the
dead in 50 states and Washington, D.C. do not always apply to Native American
people.86
While Echo-Hawk is a fervent supporter of NAGPRA, he articulates problems
Native Americans have experienced with select policies and procedures. First, there is a
general concern in the Native American community about the lack of Federal funds
available to Native American tribes to assist in the cost of the repatriation process.
The National Congress of American Indians (NCAI), established in 1944 as one of
the oldest, largest, and most representative Native American advocacy organizations in
the country, supported Echo-Hawk in their testimony at the 1995 NAGPRA Oversight
Hearing. W. Ron Allen, President of NCAI, testified concerning the financial obstacles
Native Americans face in implementing NAGPRA provisions. In 1993, NCAI
distributed a survey to its members to determine tribal needs in complying with the Act.
The overwhelming consensus was that "tribal financial needs far exceed...the grant funds
appropriated for FY94 and FY95."87 Allen testified that tribes are facing expenses in the
million dollar range in order to comply with the NAGPRA mandates. Tribes must
86 Ibid., 74.
87 Prepared Statement of W. Ron Allen, President, National Congress of American Indians to the Senate
Committee on Indian Affairs on the Implementation of NAGPRA, December 6, 1995.
31
respond to hundreds of museum notifications regarding the repatriation of millions of
sacred artifacts and remains. They must hire experts, such as anthropologists,
archaeologists, and conservationists, to evaluate the material, as well as hire legal
assistance particularly in disputed claims. Together tribes and museums have requested
approximately $10 million dollars for FY94 through FY96, but Congress has
appropriated just $2.3 million dollars for NAGPRA-related grants for this period.88
Cecil F. Antone, Lieutenant Governor of the Gila River Indian Community in
Arizona also testified in the 1995 Oversight Hearing concerning a need for increased
tribal funds. He stated that although having developed beneficial and cooperative
relationships with area museums in repatriating remains and artifacts, tribes are faced
with a lack of sufficient funds to properly care for these materials. Tribes lack the funds
to hire qualified professionals to preserve and maintain the material and construct
necessary facilities to house the collections.89 Larry Myers, Porno tribal member and
Executive Secretary of the Native American Heritage Commission in Sacramento,
California expressed similar concerns in 1993. He explained that tribes feel they are ill-
prepared to receive these fragile materials. Native Americans receive a letter informing
them of the materials that are eligible to be repatriated. Tribes, often impoverished, are
suddenly presented with fragile prehistoric and historic objects and human remains. They
lack the staff or facilities to preserve these materials. Neither NAGPRA nor the Review
Committee provides provisions or policies recommending steps to take before
repatriation takes place. Native Americans are afraid that materials will be returned to the
museums.90
1995.
89 Ibid.
90 Michael Mechanic, "Giving Back the Past, Los Angeles Times, 23 November 1993, A3.
32
Elizabeth Blackowl, President of the Pawnee Tribe of Oklahoma, testified in
agreement with Antone. "The lack o f federal funding seriously hampers tribal
repatriation efforts."91 She explained how the Pawnees have incurred expenses totaling
$70,000 annually, including staff salaries, professional consultation fees, and travel
expenses to follow up on repatriation claims. These figures are staggering for a small and
impoverished tribe. The Pawnees received just $7,500 from the NPS for 1995. Blackowl
stated that the NPS received 337 proposals from tribes and museums totaling $30 million
dollars for the implementation of NAGPRA. NPS was only able to fund 83 applicants for
a total o f $4.3 million dollars.92
Native Americans are also concerned about Native American involvement in the
evaluation and revision of NAGPRA policies and procedures. For example, Jesse Taken
Alive, Chairman of the Standing Rock Sioux Tribe, testified that Native Americans are
not satisfied with the limited level of input and representation tribes have been given in
the development of the final regulations. He expressed that NAGPRA is based on the
compromise and dialogue between Native people and the scientific and museum
communities. Representation from each side is necessary in bringing about real change.93
Museum and Scientific Communities Concerns
Influential scientific and museum professionals and organizations such as the
American Association of Museums (AAM) and the Society of American Archaeologists
testified to similar concerns as the Native Americans. With the continuing cuts in state
and Federal support of museum and institutional programs, the museum and scientific
1995.
92 Ibid.
93 Ibid.
33
communities are in even greater need of funding earmarked for NAGPRA-related
activities. This is particularly true as the number of repatriation cases increases.94
In 1990, a U.S. General Accounting Office (GAO) study reported that $50 million
dollars would be needed over the course of five years to assist museums in completing
the inventories and summaries of Native American collections and to assist Native
Americans to reclaim their collections.95 William J. Moynihan, Ph.D., President of the
Milwaukee Public Museum testified on behalf of his Museum and the AAM at the 1995
Oversight Hearing. He stated that his Museum will have committed well in excess of
$500,000 dollars by 1997 to comply with the law. He has already moved his
anthropological staff to NAGPRA-related activities and hired work-study students and
volunteers to assist them. At the same time, he has reduced his staff by 27% and cut the
Museum's overall budget.96
The lack of Federal funding to implement the law has created a burden for the
museum community. Changes are occurring in many museums and organizations
throughout the country to accommodate NAGPRA induced problems. Karl Hutterer,
Director of the Thomas Burke Memorial Washington Museum in Washington State,
stated that the repatriation process will cost the museum $1 million. This includes
salaries as well as travel expenses to meet with Native American tribes to discuss the
repatriation of artifacts and remains. The Museum's annual budget is only $2 million
dollars.97 The Peabody Museum at Harvard University has spent $250,000 on its
inventorying, purchase of new computers, and hiring of new staff to implement
94 Ibid.
95 Mechanic, A3.
1995.
97 Marsha King, "Returning A Heritage A Federal Law Has Changed the Way Museums View Their
Mission as Caretakers o f Culture," The Seattle Times, 6 December 1992, Kl.
34
NAGPRA.98 Finally, the Phoebe Hearst Museum of Anthropology at the University of
Berkeley had already spent $150,000 on NAGPRA-related activities by 1993 and expects
to spend another $360,000 over the next few years.99
In addition to the financial burden placed on museums, the task of actual
inventorying and summarization of the thousands of artifacts and burial remains in Native
American collections has been overwhelming. Many materials were collected more than
100 years ago. Current museum staffs are dealing with incomplete and inconsistent
records from past curatorial staffs. Meeting the November 16, 1995 deadline under
NAGPRA for compiling inventories and summaries is daunting. With the added burden
of contacting individual Native American tribes concerning the repatriation of their
material, it has been almost impossible for most museums to meet this deadline.100 The
museum community has continually requested an extension. Louis Levine, Director of
the New York State Museum, testified in support of an extension using his own situation
as an example. The Museum staff initially thought they had 250 skeletal remains and
artifacts to inventory and report. They found, however, that because of poor past record
keeping, the museum actually held 874 items. In December of 1995, the staff was in the
middle of contacting 207 Native American groups and communities in 25 states.101
Scientists are in agreement with the museum community's financial and time
constraint concerns. They have also expressed concerns over other problems. For
example, Robert E. Gasser of the Arizona Archaeological Council submitted a letter to
the Review Committee expressing his Council's concern over the fate of museums and
98 King.
99 Mechanic, A3.
1995.
101 Ibid.
scientific research under NAGPRA. He has also stressed the concern that NAGPRA is
one-sided in its support of Native American interests. "It is obvious that you have paid
careful attention to Native American concerns in supporting this bill. I hope that you will
evaluate the concerns of archaeologists, museums, and the public."102 In addition, Dr.
Keith Kintigh, Professor of Anthropology at Arizona State University testified on behalf
of the Society for American Archaeology, the Archaeological Institute of America, and
the Society o f Professional Archaeologists. He expressed the support these organizations
have for the law. His major concern, however, pertains to NAGPRA's requirement
prohibiting any disturbance of Native American burial grounds without the consent of the
affiliated tribe. He explained that most archaeological excavation sites are moved at
some point to avoid destruction and it would take too much time to locate and consult the
affiliated tribe. "The section must allow for unavoidable disturbance and for a situation
in which it is not possible to determine cultural affiliation prior to the excavation."103
All o f the above concerns were noted by the NAGPRA Review Committee,
however, no steps in altering policies, extending deadlines, or increasing funding have
been taken to date.104
State Law and Repatriation
NAGPRA, like all Federal legislation preceding it, does not protect Native
American human remains and artifacts on state or privately owned land. In addition, it
does not affect the disposition of human remains and objects held by collectors or private
Repatriation: Hearing Before the Select Committee on Indian Affairs, 100th Cong.. 2nd sess., 14 May
1990,366.
103 Ibid., 70.
104 Patricia Gordon, Minority Counsel for the Bureau of Indian Affairs, interview by author, 12 March
1996.
36
entities that do not receive Federal assistance.105 In these cases, Native American tribes
must approach the issue of repatriation independently on a state level.
State legislators are influenced by several factors when designing legislation
pertaining to Native American issues such as repatriation. These factors include the
influential presence o f Native American tribes in their region, state relations with tribal
groups, and citizens' awareness of the conflict. Although varying in the treatment of the
repatriation issue, all states have comprehensive laws regarding the proper and respectful
treatment of the dead and of cemetery grounds.106 All states protect cemeteries from
desecration and looting in order to protect the safety and public health o f their citizens.
The majority of these laws, however, only apply to recent burials and exist to protect the
living descendants of the deceased. In addition, most state laws only protect
"recognizable grave sites excluding the scattered burials which are often characteristic of
tribal cultures.107
While most state laws have avoided addressing repatriation issues, a few states,
influenced by Federal legislation to enact stricter laws, have encouraged a greater
sensitivity to Native American cultures, and foster a spirit of cooperation with tribal
members. This is especially true in many of the Western and Southwestern states. For
example, in Arizona those who wish to excavate on tribal land must first obtain the
approval of tribal leaders.108 In Nebraska, statute requires that all institutions, agencies,
and organizations which receive funding from the state must comply with all requests
made by Native American descendants for the return of human remains and burial
objects. All other public institutions are required to provide Native American claimants
105 Winski, 199.

106 Ibid.
107 Ibid.. 200.
108 Ibid.
37
with an inventory of the human remains and burial objects in their collection. If a dispute
arises, the parties are required to meet and resolve the dispute. If a satisfactory resolution
cannot be secured, an objective third party is summoned to mediate and resolve the
dispute.109
On the other hand, there are states such as Arkansas which take no interest in state
and Native American relations or in the direction Federal legislation has taken concerning
repatriation. Arkansas state officials refer relevant disputes to the Federal Government's
Advisory Council on Historic Preservation for the treatment of human remains.110 Until
1982, it was not unlawful in Arkansas to disinter human remains from an undesignated
cemetery in Arkansas. In Ohio, a "Grave Robbery Statute" makes it a misdemeanor to
disinter human remains without a permit, but not if the remains are nearly fully
decomposed.111 This law necessarily discriminates against Native Americans since the
majority o f ancestral remains they seek to protect are historic or prehistoric.
It is the hope of Native American groups that laws such as NAGPRA will convey
the importance of the Native American repatriation issue. It is also their hope that an
increasing number of states will be influenced to take a more active interest in protecting
the rights o f Native American tribes.
109 Boyd. 905.

no price, 43.
111 Winski, 202.
CHAPTER 4
RELATIONS BETWEEN NATIVE AMERICANS AND MUSEUM AND
SCIENTIFIC COMMUNITIES
Throughout the 20th century, Federal policy concerning Native Americans has
shifted dramatically, from the imposition by the Federal Government on Native
Americans of unfair land and trade treaties, to the heightened awareness of Native
American interests of the New Deal era, to the Termination Policy of the 1950s and
1960s. With the empowerment of Native American activists and advocacy groups during
the civil rights era and the development of the repatriation movement in the 1970s,
however, the tension between Native Americans and the Federal Government has eased
tremendously.
Similarly, the relationship between the museum and scientific communities and
Native Americans regarding repatriation has progressed. This is particularly true since
passage of the Native American Grave Protection and Repatriation Act.
Those museum professionals and scientists who reject repatriation of Native
American remains and artifacts have their own view. As Edward Able, former Executive
Director of the American Association of Museums stated: "American museums play a
unique and critical role in collecting, preserving, and exhibiting the diversity of the
nation's cultural scientific and natural heritage. They are repositories of human values,
accomplishments, and creativity."112 Museums and institutions have held collections of
1987,216.
38
39
Native American art, culture, and religion in trust for the public for decades. Many
museum curators and archaeologists believe they have the responsibility o f studying the
remains of the Native American past, whether they be articles of clothing or human
skeletons. Museum professionals and scientists believe it is their responsibility to protect
and preserve Native American historical roots for future Indian and non-Indian
generations.113
Native Americans, however, assert their own view that tribal culture and history can
best be preserved and perpetuated by tribal descendants. W. Ron Allen, President of the
National Congress of American Indians states: "We see the return o f our ancestors as a
return of our cultural and spiritual foundations; the very heart of our nations."114 Further,
Native Americans view the collection and display of their ancestral remains scattered
across the country in non-Indian institutions not only as a sacrilege, but also as a violation
of Native American civil rights.115
This issue is complicated by the fact that professionals from various museums and
institutions assert contrasting opinions within their own circles. A minority are in
complete opposition to the repatriation of Native American sacred artifacts and burial
remains. Many museums, and museum and science organizations are in full support of
the repatriation movement, but believe the issue can best be handled on a case-by-case
basis rather than through a Federal mandate.
113 Margaret, B. Bowman, "The Reburial of Native American Skeletal Remains: Approaches to the
Resolution of a Conflict," Harvard Environmental Law Review (1989): 147.
1995.
1990, 190.
40
Museum and Scientific Communities Response to the Repatriation Issue In Opposition to
Repatriation
Curators, museum directors, archaeologists, anthropologists, and ethnologists who
actively oppose repatriation o f Native American artifacts and remains are small in
number and dwindle with time. Most have realized that by taking a less rigid attitude
toward Native Americans and by forming cooperative relationships, museum collections
may be more readily preserved and scientific study maintained.
For example, Dr. James Nason of the Thomas Burke Memorial Washington State
Museum made a statement in 1973 at the beginning of the repatriation movement. He
opined that legally the museum community had no obligation to honor claims by Native
Americans for repatriation of their materials. He said that museums have been declared
trusted holders of these valuable collections of Native American history and are
responsible for preserving the materials for future generations. He also stated that Native
Americans do not understand the importance for research and educational purposes of
preserving the collections for future generations.116 This was a popular sentiment among
scientists and museum professionals during this time. Nason now asserts, however, that
museum professionals cannot work in an insular, self serving cocoon and ignore the
profound feeling of loss Native Americans express regarding their heritage. Museum
professionals must respond positively, creatively, and with an open mind to the
problem.117
This more positive attitude has developed substantially over the past two decades.
Many scientists and museum professionals like Dr. Nason have begun to realize that,
failure to cooperate with Native Americans will result in litigation and, in those instances
where individual tribes have a strong case, archaeologists and curators may lose complete
116 Nason, 21.

117 Ibid.
41
access to these materials. They have begun to recognize that it is in their best interest to
compromise with the tribes.118 As Jan Hammil of the American Indians Against
Desecration stated, "Yes youre going to give up a little by working with the Indian
people; give up the boxes of bones, but in the long run you get a lot more by working in
cooperation with us."119
Although museum and science professionals are changing their attitudes, many still
express significant concerns about the impact repatriation will have on museum
collections and scientific research. First, some museum curators believe that the
repatriation movement "creates conflict between the museum's objectives of
preservation...and education," for the non-Indian public.120 These museum professionals
posit that most non-Indians have experienced Native American culture and history solely
through museum display cases. Museums have provided the non-Indian public the
opportunity to study, learn, and understand Native cultures by observing Native
American objects and artifacts. Repatriating these collections, they say, may destroy a
major opportunity for Native Americans to share their culture and heritage with the rest
of society.121
Second, as expressed during the NAGPRA hearings, museum and science
professionals are concerned about the fate of artifacts and remains once they are returned
to unprepared Native American tribes. Steve Shackley, Assistant Research Archaeologist
for the Phoebe Hearst Museum of Anthropology at the University of Berkeley, believes
that most tribes cannot handle the inventories they receive from museums. They do not
have the experience or the money to cope with a collection. They lack the proper
118 Bowman, 146.

119 Bowman, 147.
120 Boyd, 884.
121 Ibid.
42
facilities or qualified professional staff to care for delicate artifacts and bones.122 Though
in support o f working with Native people to repatriate significant materials, Thomas A.
Livesay, Director of the Museum of New Mexico, stated:
If the Museum of New Mexico had not acted in responsible fashion for the past 78
years, much of the cultural heritage from Southwestern Native American tribes
would have been destroyed. The material objects probably would have been lost
simply because it is not in the Indian concept to collect and save things.123
Third, Native American remains, according to archaeologists, anthropologists, and
ethnologists, have inestimable scientific value. "Mortuary evidence is an integral part of
the archaeological record of past culture and behavior in that it informs directly upon
social structure and organization...about demography, disease, and genetic
relationships."124 Some archaeologists go as far as to assert that they are the lone voice
for past peoples and "must intervene on behalf of the common good because Native
Americans are unwittingly working against their own best interests by insisting on
reburial and thus destroying records of the past."125 Organizations such as the American
Anthropological Association believe the overall repatriation of Native American artifacts
will undermine scientific scholarship.126 By burying the bones and objects of these tribal
ancestors, one is burying knowledge of the past and discoveries for the future.127
Finally, by returning the majority of their collections, some museum professionals
are concerned that their institution's reputation will be incalculably damaged. Museums
have a fiduciary responsibility to maintain their collections for the benefit of the public.
122 Mechanic, A3.

1987,213.
124 Boyd, 887.
125 Bowman, 151-152.
126 Dean Peerman, "Bare Bone Imbroglio: Repatriating Indian Remains and Sacred Artifacts." The
Christian Science Monitor, 17 October 1990,956.
127 Larry Zimmerman, 66.
Reproduced with permission of the copyright owner. Further reproduction prohibited w ithout permission.
43
If this responsibility is not fulfilled, the mission of the institution may be lost.128
Proponents of Repatriation
A small number of museum professionals and scientists believes wholeheartedly in
the repatriation of all Native American materials. "Indian materials belong with the
Indians...Nothing less."129 Kenneth Hopkins of the State Capitol Museum in Olympia,
Washington made this statement in the early 1970s. He explained that "museums justify
their retention of collections by stating that they are preserving Indian material for the
sake of the Indians."130 He believes that the motivation of museum staff is purely self
serving. It is not a question of who can best preserve the collection. He believes if this
were true, then smaller museums should be forced to send their collections to larger,
better-equipped institutions to protect the materials.131
University of Chicago Professor of Anthropology, Raymond D. Fogelson, testified
at the NAGPRA hearing in 1990 in full support of repatriation:
Can a nation that erects tombs to unknown soldiers, that spares no effort to retrieve
unidentified bones of those missing in action in Korea and Viet Nam not appreciate
the concerns of Native Americans whose ancestors remain spiritual hostages in
natural history museums.132
Another active supporter is Elizabeth Sackler of New York, daughter of Arthur M.
Sackler of the Smithsonian's Sackler Gallery for Asian Art and Antiquity. At a Sotheby's
auction, she saw three Navajo and Hopi masks which she recognized to be of religious
significance to the respective tribes. She bought the masks and then promptly returned
128 Boyd, 887.

129 Nason, 23.
130 Ibid.
131 Ibid.
1990, 342.
44
them to the tribes. In describing her actions, she stated, "The affinity for Native peoples
has been there all my life. These masks are not art. They are spiritual, and a spiritual
necessity. It was apparent they needed to go home."133
Case-Bv-Case Basis Approach
American Association of Museums (AAM)
Most museum groups and professionals do not entirely disagree with fervent
supporters of repatriation. Indeed, an increased interest in the repatriation issue over the
past two decades "has changed the way museums view their mission as caretakers of
culture."134 However, they believe there is room for compromise to protect the interests
of all involved parties. Museum groups and professionals would like the opportunity to
further develop positive relations with Native American tribes and to create cooperative
and collaborative programs.
...Affected parties, which include several thousand museums, universities, federal

agencies, and Native American tribes, have embraced the principles of the Act and
carried out its provisions in good faith...Museums and universities have benefited
with greater knowledge of collections, better public interpretation of Native
American art and culture and increased understanding and appreciation of Native
American experience.135
The above statement was made by Dan L. Monroe, past President of the American
Association of Museums (AAM) at the NAGPRA Oversight Hearing in December of
1995. AAM was established in 1906 as a national service organization with more than
10,000 members including approximately 8,000 individual members and 2,500 art,
133 Jeanne Givens, Nez Perce Artifacts Reveal Complex Fight to Recapture Tribal Items, The Idaho
Statesman, 23 December 1995, 8A.
134 King, K l.
1995.
45
history, natural history, and science museums. AAM represents the majority of American
museums in its support for the repatriation movement. The Association submits that it is
possible for museums and Native Americans to address repatriation on a case-by-case
basis without a Federal mandate. "The ethics of today must prevail over the ethics of the
past" is their firm belief.136 Such mandatory Federal laws are believed to be unnecessary
and possibly detrimental to Native American-museum relations. AAM posits that
museums have a history of commitment and support of Native American culture and
traditions.
At a time when Native American art and cultural material was widely considered to
be nothing more than curios by the general American public, museums exercised
social leadership by collecting objects they recognized as art and...significant
cultural materials....Museums helped preserve Native American culture and
eventually helped change social attitudes toward Native Americans.137
AAM representatives have testified repeatedly at legislative hearings concerning the
repatriation issue and each time stress the complexity of the issue and the important role
the museum community has played in protecting Native American culture and heritage.
AAM emphasizes the value that legislation has served in helping the museum and science
communities recognize the needs and rights of Native Americans to protect their culture
and history. However, it is the view of the AAM and many museums that stringent
Federal laws are not the answer to resolving disputes. This can be accomplished only on
a case-by-case basis. As Michael J. Fox, former Director of the Heard Museum in
Phoenix, stated in 1988:
Nationwide, museums and their staffarchaeologists, anthropologists...even the

general public are demonstrating a renewed commitment of mutual cooperation and
136 American Association of Museums," Policy Regarding the Repatriation of Native American
Ceremonial Objects and Human Remains, IS January 1988.
Repatriation: Hearing before the Select Committee on Indian Affairs, 100th Cong., 2nd sess., 14 May
1990,61.
46
trust with Native Americans on matters regarding the collection, preservation,
documentation, exhibition and repatriation of Native American ceremonial artifacts
and human remains.138
Fox explained that renewed interest is evident in the revised repatriation policies of
groups such as AAM. For example, AAM issued a policy on repatriation as far back as
1973. In this early policy, AAM encouraged museum professionals to treat and interpret
Native American objects and skeletons with sensitivity and dignity out of respect for
tribal descendants.139
In 1988, AAM revised its policy on repatriation of Native American material and
introduced it to their members. The new policy emphasized the need for accessibility to
tribal collections by the Native American community, the need for Native American
values and traditions to be reflected in the care and interpretation of these collections, and
the need for involvement of Native Americans in related museum programs. As part of
this collaborative process, the policy states that museums should also seek cooperative
resolutions to repatriation claims.140 In addition, AAM policy includes the provision that,
even if a museum acquires remains and artifacts legally, the staff must consider how the
item was acquired and develop sensitive methods in handling repatriation requests.
The museum should weigh both legal and ethical considerations when considering
requests for repatriation...unless there are compelling and overriding reasons to
retain human remains...under these conditions, museums should work with
legitimate Native American descendants or return such remains."141
Through this policy, AAM aims to encourage museums from every region to
138 This quote was taken from the testimony of Michael J. Fox submitted on behalf of the AAM Before the
Select Committee on Indian Affairs for the Substitute Amendment to S. 187, The Native American
Museum Claims Commission Act, 29 July 1988.
139 Ibid.
140 American Association of Museums, Policy Regarding the Repatriation of Native American
Ceremonial Objects and Human Remains, 15 January 1988.
1990, 340-341.
47
become more sensitive toward Native American concerns, to develop cooperative
relations with tribes, and to produce similar such policies for individual museums or
institutions. A majority of museums have adhered to the AAM's policies and have
committed themselves to improving relations with Native tribes and to introducing new
policies and programs to further recognize the interests of Native Americans. In fact, as a
response, almost all human remains have been removed from public display cases.142
Individual Museums
Many museums, from small state museums to internationally renowned institutions,
are exhibiting greater sensitivity to Native Americans regarding the interpretation,
protection, and repatriation of sacred artifacts and ancestral remains. For example, the
Smithsonian Institution has established a program whereby museum staff travel to the
Northwest to meet with tribal members and explain the process of repatriation claims.143
The Burke Museum in Seattle, Washington has recently formed an advisory
committee to assist other museums in the planning and research of Native American
exhibits. Part of the committees responsibilities include encouraging museum staff to
solicit the participation of affiliated tribal representatives in interpreting objects and
artifacts. The committee is also involved in assisting tribes to establish their own
museums or centers for exhibition of repatriated material.144
Thomas Livesay, Director of the Museum of New Mexico, expresses the museum
community's overall support of NAGPRA, but states that museum professionals believe
the intent of the Act is already being realized. He stresses that museum standards and
practices, as well as their role in collecting and interpreting Native American material,
142 Bowman, 147.

143 King, KI.
144 Ibid.
48
has changed over the past 90 years. Museums, he testified, are leaders in the formation of
attitudes about the cultures they present to the public.145
Livesay describes the successful relationship between the Museum of New Mexico
and Native American tribes in the Southwestern region. His Board put together a Board
of Regents to review the human remains in the Museum's collection and to develop
Museum policy regarding repatriation of human remains. They began by meeting with
affiliated Zuni tribal members to discuss the repatriation of selected material in the
Museum's collection. Livesay uses this example to demonstrate that laws such as
NAGPRA are unnecessary. Museums have been developing positive, communicative
relationships with Native tribes for years and will continue to do so for years to come.146
The Museum of Native American Cultures in Spokane Washington is another
example of museum-Native American collaborative relations. In 1992 the Washington
Museum dissolved. The collection was turned over to the Cheney Cowles Museum. To
be assured of proper treatment of the collection, the Director of the Cheney Cowles,
Glenn Mason, created an American Indian Advisory Committee to oversee collections
management and preservation. The committee invited regional tribes to view the artifacts
and comment on their treatment and display. In addition, a sacred room was set aside for
religious tribal members to view objects with religious significance.147 Both parties were
satisfied with this agreement. Mason explains that the Museum's policy is to recognize
individual tribes and work with them in preserving their heritage.148
Louis Levine of the New York State Museum asserts that, in order to develop a
1990.
146 Ibid.
147 King, KI.
148 Ibid.
49
productive and respectful relationship with Native Americans concerning this issue,
museum professionals must understand the multiple points of view that exist beyond that
of the museum curator.149 The New York State production of an exhibit of the Iroquois
tribes that opened in 1992 provided a learning experience for all parties involved. The
museum staff worked closely with Iroquois representatives in preparing the exhibit. As a
result, the staff learned about important areas of sensitivity to the Iroquois, and tribal
members received a brief education about anthropological and curatorial research.150
Finally, Martin E. Sullivan, Director of the Heard Museum in Phoenix, Arizona has
been expanding the Museum physically and philosophically over the past few years. The
Museum opened in 1929 as a museum of primitive art by pioneer Phoenix settlers Dwight
and Maie Heard. It is now one of the most renowned Southwestern Native American
culture collections, with 30,000 objects and 45,000 volumes in its library.151 It continues
to grow and change with the times. "We're moving beyond preserving objects and
interpreting them, we try to preserve and sustain the people from which the objects
come."152
Sullivan is interested in focusing on Native American culture as a living vital
culture, not a historical curiosity. This involves forming close relations with individual
tribes. The Museum will become "a first person experience, not a third person
explanation...Too often, museums have presented 'round brown women making round
brown pots,' but the real picture is much more varied and much more contemporary."153
Sullivan understands the significance of NAGPRA and even describes how his staff has
149 Kenneth Crowe, "Museums Work to Restore Tribal Heritage," The Times Union, 10 December 1995,
A3.
150 Ibid.
151 Steve Yozwiak, "Hasty Return of Relics Raises Research Fears, The Arizona Republic, 26 January
1994, B3.
152 Ibid.
153 Ibid.
50
benefited from the provisions. For example, in inventorying the collection, the staff has
learned a great deal from having elders and religious leaders interpret objects for the
Museum staff, particularly information beyond the staffs scope of research and
knowledge. The Heard has been in the forefront of the repatriation movement and
Sullivan posits that much of the policies and guidelines included in NAGPRA are already
included in the Heard's policy.
The Scientific Community
Today, Native Americans realize that, just as museums create awareness of Native
American culture and history, so does the scientific community. In return, scientists such
as archaeologists and anthropologists realize that maintaining communication with Native
American tribes and developing cooperative relationships may lead to more satisfactory
resolutions of disputes.154
Similar to the museum community, a majority of scientists are in support of
repatriation and believe that cooperating with Native tribes on a case-by-case basis will
develop long-lasting and mutually respectful partnerships. The Society for American
Archaeology and the World Archaeological Congress assert that archaeologists and
anthropologists must understand the major impact their studies have on those they study.
They must learn to share control of articles from the past in order better to communicate
and resolve disputes. They state that cooperation is most beneficial to science in the end
as it allows for the continuing growth and evolution of the profession.155
An example of cooperative efforts involves the Stanford University Anthropology
Department and the Ohlone tribe of Northern California. After two years of negotiation
with the tribe, the University decided to return 550 remains for reburial by their Ohlone
154 Bowman, 150.

51
descendants. The Chair of the Anthropology Department explained that the University
was faced with the difficult decision to honor and respect the "religious beliefs and
sensitivities of a population o f living Native Americans" or honor an "obligation to the
future scientific community."156 The University chose the first. Soon after this decision
was made, several other universities, including the University o f Minnesota, followed
Stanford's lead by returning burial remains and objects to affiliated tribes.157
Another example involves a Native American tribe's ability to appreciate and
respect the significance of scientific research and the interests of archaeologists. A group
of Eastern Washington State archaeologists discovered some of the oldest skeletal
remains in the United States in the Mamies Rock Shelter on Nez Perce tribal territory.
The archaeologists brought the skeletons before the tribal council and stated their case for
moving these remains to the University research lab for study. The council members
recognized the unique scientific significance of the remains and agreed to lend the
remains to the archaeologists for research.158
Native Americans' View of Repatriation and Relations with

Museum and Scientific Communities
Concerns Regarding Treatment of Native Americans,

Their Sacred Artifacts and Human Remains
The Native American peoples interests differ greatly from the interests of the
museum and scientific communities. Indeed, Native Americans are angry and
mistrusting of museums and institutions that are reluctant to give up the sacred artifacts
and burial remains of Native American ancestors. Author, Jeanette Henry, has written:
156 Boyd, 884.

157 Ibid.
158 Bowman, 155.
52
"There is a gross hoarding of artifacts and art materials in the great museums. In many
cases, our most priceless pieces of great antiquity are ill-cared for, hidden in steel caskets,
treated like mummified objects of savagery."*59
Most Native Americans agree with Henry. They believe that the prestigious Heye
Collection of Native American artifacts and burial remains in New York is an example of
such "hoarding." For example, Lynn Harlan, a museum professional and a member of the
Qualla Boundary Cherokee tribe of North Carolina was researching information at the
Heye Museum several years ago. As she was searching through the Heye's warehouse,
she discovered boxes and crates full of nearly one million artifacts and skeletons
belonging to her tribe. She explained: "It was like walking through a grave."*60
George Gustav Heye was a private collector of Native American artifacts and
objects from 1903 until his death in 1957. Heye's associate said of him in 1960, "George
was what we call a boxcar collector....He felt he couldn't conscientiously leave a
reservation until its entire population was practically naked."'61 The Heye collection
consists of over one million artifacts, from entire walls taken from Nootka homes, to
dozens of Inuit shoes, to 30 shelves of Sioux pipes, masks, fishing hooks, and thousands
of human remains.162 Even after the three centers are built for the Museum o f the
American Indian, only 10 to 20 percent of the material will be on display because of the
enormity o f the collection.163 It is difficult for Native Americans to understand the
importance of holding ancestral remains when thousands of skeletons sit in storage
untouched. It is this hoarding of scores of unseen skeletons and sacred artifacts that
159 Nason, 25.

160 Ashley Dunn, "A Heritage Reclaimed: From Old Artifacts, American Indians Shape Museums," The
New York Times, 9 October 1994, A20.
161 Ibid.
162 Ibid.
163 Ibid.
53
fosters the distrust Native Americans feel toward the scientific and museum
communities.164
Native Americans also find it difficult to comprehend the non-Indian need to collect
and study tribal materials in order to gain insight into the past. Native Americans believe
it is they who carry the relevant information about the history and traditions of their
ancestors. They find it senseless to excavate and study these materials. To them the
culture and history of their ancestors is alive today.165
It is, however, the disrespect of religious and cultural beliefs that is most disturbing
to Native Americans.
The problem has been that when we discuss human remains we are thinking of our
relatives with faces and names....If an object is made for a particular purpose, such
as Cheyenne burial moccasins which are beaded on the bottom and only worn for
burial, when we see those objects in museums, especially when displayed with mud
and sod on them, we know where they have come from....No one relinquishes their
burial moccasins and if they belonged to people you know...it is an enormous blow
to see this on display.166
Although Native American tribes vary in their spiritual need to rebury their dead,
they possess the common need to reclaim and rebury their ancestors out of pure respect
for the dead. For example, the Kumeyaay tribe believes that when a person dies his spirit
is sent to the afterworld. If his spirit is disturbed, he comes back in pain until he can be
put to rest. From a different view, the Mesquakie tribe believes that when a tribal
member dies, his spirit leaves after four days, never to return. The two tribes have
contrasting philosophies of the after life experience, but both share the belief that their
ancestors must be reburied to maintain their dignity and respect.167
Native Americans feel that the disrespect for their ancestors exhibited by the
164 Bowman, 152.

165 Ibid., 147.
166 Weintraub, Bl.
167 Bowman, 149.
54
museum and scientific communities is evidence of the continuing prejudicial treatment of
Native Americans.168
Native Americans lying in display cases or in back rooms of museums, universities,

and historical societies can symbolize for Indians a long chapter of insensitivity and
racial bias....The displays promote within the general public a perception that
Indians can be so exhibited because they are different....In a world that needs and
seeks tolerance, the holding of Indian remains and their tasteless display sends a
negative message freighted with lingering racial overtone and prompts both pain
and anger in Native Americans.169
Even as recently as 1989 with the passage of the National American Indian Museum
Act, prejudice against Native Americans lingered. In the discussion about Native
American involvement in the architecture of the future American Indian Museum, it was
noted that "...Some Washingtonians fear a 'concrete teepee' will disrupt the Smithsonian
architecture" on the Mall.170
Native Americans attribute the overwhelming number of Native American remains
housed in museum collections and the almost nonexistent display of Caucasian remains
to Native American prejudice. Ninety-nine percent of human remains curated in Federal
institutions throughout the U.S. are of Native American origin. The total number of
bodies is estimated to be over 600,000.171 As Walter Echo-Hawk stated: "These dead
provide mute testimony to markedly different racial treatment of Native Americans in
matters affecting the dead."172
Another example of prejudicial treatment can be found in the field of archaeology.
168 Ibid.
1990, 339-340.
170 David Zimmerman, ID.
171 Bowman, 149.
1990, 185.
55
In Tennessee, the remains of white settlers, black slaves, and Native Americans were
uncovered by area archaeologists. The white remains were reburied immediately with the
proper religious ceremony. The remains of the slaves were examined briefly then
reburied with proper religious ceremony as well. Only the skeletons of the Native
Americans were uncovered and taken to a lab for further study and have yet to be
returned.173 In a separate case, bodies of cavalrymen and Sioux warriors were uncovered
at the site of Custer's Last Stand. The white remains were reburied instantly, but the
Sioux remains were retained for further study. As an Indiana archaeologist stated: "It's
very clear there are two policies. There's a policy for Indian bodies and there's a policy
for white bodies."174
The museum communitys misrepresentation of Native American culture and
tradition is another major concern for Native Americans. It has only been in recent years
that many museums have solicited the participation of Native Americans to improve the
quality of their exhibitions. Past record keeping and inventory were often poorly kept
and museum staff have lacked the time and funds to research and update the inadequate
display descriptions of the thousands of objects and artifacts in their collections. The
Burke Museum in Seattle is an example. The early catalogues and records provide scant
and uninspired information about the objects. For example, a display text reads: "A
blanket. Made from wool of Mountain Goat. Snohomish. Formerly used by chiefs."175
To date, the Burke Museum staff has reported to have transferred only one half of its
written information onto computers. Still, no revision of the information has been
undertaken.176
173Bowman, 148.
174 Ibid.
175 King. K l.
176 Ibid.
56
While Native Americans have expressed their anger and frustration over the
meagemess of the repatriation efforts of the museum and scientific communities, the
relationship between Native Americans and the museum and scientific communities is
not one of hostility. A mutual respect has developed over the years. Native people
understand the important role that museums and archaeologists and anthropologists have
played in heightening the awareness of Native American culture and heritage. This
understanding has helped foster the cooperative relationships that have evolved and the
willingness to meet the interests of all parties.
Native Americans understand how they too can benefit from cooperative
relationships in resolving repatriation disputes. For example, in 1977, the Hodenosaunee
tribe in New York State joined with the Buffalo and Erie County Historical Society to
form a unique partnership. The Hodensaunee realized that the fate of their culture and
history was in danger as they witnessed inaccurate displays by the Historical Society
curatorial staff. Religious artifacts vital to present day ceremonies were on display and a
desecrated grave was exhibited.177 Instead of going to court to force the return of the
tribe's artifacts and deplete the Historical Society's collection, the Hodensaunees chose to
form a cooperative relationship with the Historical Society. The museum staff worked
with a six-member Iroquois advisory committee to negotiate the return of several sacred
objects and plan exhibits and education programs that created a positive and accurate
presentation of the Hodensaunee tribe. The advisory committee was established to
sensitize the staff to Native American concerns and to develop new approaches to
representing the tribal collection. A loan program was also established for the tribe to
borrow objects for special ceremonies. The tribe felt that taking an active role in museum
collection management and teaching respect for the tribal culture was the most effective
177 Richard Hill, "Reclaiming Cultural Artifacts," Museum News, May/June 1977,44.
57
way to resolve this dispute and to preserve their heritage for future generations.178
178 Ibid.
CHAPTER 5
CASE STUDIES
As discussed, the attitude of Native Americans and the museum and scientific
communities toward repatriation has evolved over the years. The interested groups have
realized the benefits of working together to accommodate the interests of all involved.
There is an increase in sensitivity in the museum and scientific communities for Native
American concerns. Curators and archaeologists are establishing more cooperative
relationships with Native Americans. They, like the Native Americans, recognize the
importance of maintaining communication and an open mind in addressing the issue of
repatriation. The following case studies illustrate the complex factors that take part in
resolving problems involving the repatriation of Native American materials.
#1 The San Xavier Bridge Project: The Arizona State Museum and the
Tohono O'Odham Nation
In 1984, the Arizona State Museum (ASM) began the San Xavier Project. This
project, located on prehistoric Tohono OOdham tribal burial grounds, sparked
controversy between tribal members and ASM staff, specifically curators and
archaeologists in the Cultural Resource Management Division. This case study shows the
problems this project presented for the Tohono O'Odham Nation and how the Museum
curators, archaeologists, and tribal leaders worked to satisfy the interests of both sides.
NAGPRA was not in existence at this time. Therefore, trust, compromise, and sensitivity
were the keys to resolving this dispute.
In 1984, the Arizona Department of Transportation (ADOT) proposed to rebuild the
58
59
San Xavier Mission Bridge, which had collapsed during a flood, on the Tohono OOdham
reservation. The bridge was erected near a Tohono O'Odham burial ground. Prior to
construction, the ADOT consulted the ASM to determine whether the bridge and the land
it was built on was eligible for the National Register of Historic Places.
The Museum submitted a proposal to the Bureau of Indian Affairs, the Arizona
State Historic Preservation Office, the ADOT, and the San Xavier District of the Tohono
OOdham Nation for its request to excavate the land on the Tohono O'Odham reservation.
The Museum staff also took the proposal to the Tohono OOdham tribal council and met
with tribal leaders to explain their intent and the significance of the project. The staff
discussed how the project would affect the tribe, such as the removal, analysis, and
curation of the human remains and burial objects discovered on the land. In their
presentation, the staff assured the council members that the remains would be treated with
respect and dignity.179 The council members inquired about the proposed handling of the
human remains, where they would be studied, what type of analysis would be used, and
the duration of the studies. They wrote a letter to the Museum expressing their
reservations about the project and asserted that nothing was to be discarded, not even
fragments of pottery or bone shards, and quartz crystals could only be touched by the
tribal medicine woman. Many council members were adamantly against any disturbance
of the burial site and the analysis and display of their ancestral remains and burial objects.
In the end, however, they reached an agreement that, as long as the Tohono OOdham
medicine woman was present and served as a consultant to Museum staff, the project
could commence.180
The project began with the medicine woman's ceremony over the burial site. All
179 John C. Ravesloot, "On the Treatment and Reburial of Human Remains: The San Xavier Bridge
Project, Tucson, Arizona," American Indian Quarterly, Winter 1990, 37.
180 Ibid., 37-38.
60
Museum staff were required to attend. The partnership seemed off to a successful start.
However, a few problems arose. For example, the tribe stipulated that, if any human
remains, cremations, or burial objects were uncovered, the medicine woman must be
summoned to perform a traditional ceremony before disturbing any of the material. After
one week of work, the first human remains were unearthed. The medicine womans
shock at seeing the uncovered skeletons of her tribes ancestors caused the tribal leaders
to reassess their position on the proposed Museum analysis of the human remains they
excavated. The project was delayed until the ASM and council members could reach a
new consensus.
Several weeks passed. The ASM staff presented a written summary to the tribe of
alternative approaches of analyzing the remains. They met with tribal leaders to answer
any questions and concerns they might have. The tribal council responded to the ASM
with their own procedures. These included:
1. No human remains were to be removed from the burial urns.
2. All scattered pieces of remains and burial urns were to be gathered together with
care.
3. Any artifacts found in close proximity to burial sites are considered to belong to
the closest remains.
4. Neither burial remains nor urns were to be washed.181
When the ASM staff stated that these restrictions would inhibit their study, the
tribal council met again and revised their stipulations:
1. Remains may be removed for testing, but urns and remains may not be washed.
2. All remains that are tested shall be replaced in the appropriate um.
3. All remains shall be treated with respect and dignity while in the hands of ASM
181 Ibid., 41.
61
staff.
4. Only authorized personnel shall work on site.182
These procedures were accepted by ASM staff.
Once the field work was complete, the medicine woman visited the museum to
review the analysis process and curation procedures. Later, the Museum staff scheduled a
tour of the archaeology lab for the tribal council. The program was running smoothly.
Through compromise and mutual respect, the two sides ironed out potentially damaging
conflicts.
In 1986, however, the ASM was faced with a new problem. The Tohono O'Odham
tribe requested the return of their remains and objects from the site. ASM met with the
San Xavier District Chairman to discuss the issue. After listening to the tribal leaders
explain the significant religious and cultural reasons for reintering their ancestral remains
and burial objects, the ASM put their own interests aside and agreed to the repatriation.
Compromise and mutual respect lead to a successful resolution of a delicate
situation. Upon witnessing the uncovering of their ancestral remains, the medicine
woman and tribal leaders experienced an emotional conflict. The Museum staff was
sensitive to the emotions this experience evoked and recognized the need to listen to
tribal members' concerns in order to create an alternative solution. Because of the
Museum staffs persistence and their demonstration of respect for the tribe's beliefs and
practices, tribal members were willing to consider the museum's interests and develop a
compromise. Each side gave up something. The tribal members would have preferred to
see their burial grounds go undisturbed. The ASM would have preferred to maintain the
remains and objects as part of their collection. As a result of cooperative compromise,
the project is a success.
182 Ibid.
62
#2 The Denver Museum of Natural History and the Zuni War Gods
The Zuni war gods are, according to the Zuni tribe of New Mexico, "living
supernatural beings responsible for the welfare not only of the tribe but of the entire
world."183 As Head Tribal Councilman, Joseph Dishta, explained, the Zuni warriors
receive "strength and wisdom" from the war gods in times of battle.184 The statues of the
war gods are intended to remain outside exposed to natural elements. The Zuni believe
that when the statues have completely deteriorated, the war gods will have completed
their work.185
The Zuni have tried for decades to recover the more than 67 war gods held by
museums and private collectors in the United States. These carved statues of war gods
have appeared in a variety of collections, from the Andy Warhol Estate, to the Tulsa Zoo,
to the Denver Museum of Natural History. Today, the statues are worth $80,000 to
$100,000. The tribe claims that the war gods were taken without their permission.186
The Denver Museum of Natural History had possessed six Zuni war gods since
1953. In 1979, Zuni council members approached the Museum staff about the return of
the statues, but the staff was unresponsive. They were unaware of the sacred qualities of
the statues. Further, they stated that the Museum had received the statues from a non-
Indian donor as a gift in 1953 and had no reason to believe that they were illegally
removed from the Zuni site. Although the Museum was reluctant to hear the Zuni's case,
tribal members maintained communication with the museum staff to avoid litigation. It is
the character of the Zuni tribe to "honor a tribal tradition that says one must ask for
183 Michael Haederle, War Gods Are Finally at Peace, Los Angeles Times, 12 August 1991, El.
184 Ibid.
185 Ibid.
Repatriation: Hearing before the Select Committee on Indian Affairs, 100th Cong., 2nd sess., 14 May
1990, 144-152.
63
something four times politely before turning to adversarial means."187
The Zuni's persistence in maintaining open discussion about the situation produced
a satisfactory resolution in the end. In numerous meetings with Zuni tribal leaders, the
Museum staff discussed their fears that these statues, laden with the tribe's ancient history
and culture, would be returned to the outdoors, vulnerable to vandals, looters, and decay.
The museum staff was faced with a conflict between its responsibility to its trustees and
the public, and to scientific research, and its responsibility to the Zuni people. After
many meetings, the Museum staff could not return the statues. Only when the Colorado
Attorney General stepped in and issued an opinion stating that the museum had no claim
to the objects, did the Museum capitulate.188 After the Museum was strongly advised to
return the statues, the Zuni council members met with the Museum staff. Together, the
two groups established a plan that addressed Native American sacred beliefs and the
Museum's concern for preservation. The statues would be exposed to the elements as
originally intended, but would also be protected from vandals and looters with a security
system. Because of Zuni persistence and spirit of compromise, the interests of both
parties were addressed and the situation was resolved amicably.
#3 The Nez Perce Tribe of Idaho and The Ohio Historical Society
The Nez Perce tribe of Idaho and the Ohio Historical Society are currently in the
midst of a battle over a Native American collection. Because the collection contains
everyday objects, both sides agreed that the dispute does not fall under NAGPRA.
Satisfactory resolution relies solely on compromise.
The Nez Perce collection consists of 19 historic items including a rawhide saddle,
187 Haederle, E l.
1990. 144-152.
64
woven baskets, a belt bag, hats, buckskin shirts, sequined dresses, and a hand carved
cradle. These items were acquired in 1846 by Henry Spalding, a Presbyterian missionary
from Ohio. The Historical Society Director, Gary C. Ness, insists that Spalding
purchased the collection legally from the tribe.189 According to the Nez Perce tribe's
historian, Allen Slickpoo, Sr., the tribe views this as an example of the White Man
depriving a Native American tribe of its culture and heritage. Spalding convinced the
tribal members that their buckskin clothing and eagle feathers were evil and persuaded
them to sell their garb for $57.90.190 Doug Nash, Chief Counsel for the Nez Perce, states
the collection probably represents the oldest physical link between modern-day tribal
members and their ancestors.191 The collection was valued at $608,100 in 1993.192
Spalding shipped the collection to his friend Dr. Dudley Allen in Ohio in return for
supplies for his mission.193 Allen's descendants bequeathed the collection to Oberlin
College of Ohio in 1893. In 1942, the college placed the collection with the Ohio
Historical Society to better preserve the material and make it accessible to the citizens of
Ohio. In 1979, Oberlin College officially transferred ownership to the Historical Society.
That same year the National Park Service negotiated an agreement with the Historical
Society to lend the collection to the Nez Perce National Historic Park in Spalding, Idaho.
This agreement was renewed every year until 1992.
In 1992, the Historical Society requested the return of the collection from the
National Park Service. Director Gary Ness stated that, the Society realizes the request
seems callous, but because the collection has been continuously exhibited for thirteen
189 Tom Kenworthy, "Fragile Links to the Past," The Washington Post, December 1995.
190 Ibid.
191 Ibid.
192 Maggie Sanese, Communications Manager for The Ohio Historical Society, interview by author. 6
March 1996.
193 National Public Radio's "Morning Edition" report by Ruby De Luna, "Nez Perce American Indians
Face Historical Challenge," 8 March 1996.
65
years, it was necessary to evaluate the condition of the materials. He was responsible to
the trustees and the citizens of Ohio to insure the maintenance and care of the
collection.194 The tribe's historian, Slickpoo stated that the Society "doesn't fully realize
how much it (the collection) means to the Nez Perce people. It definitely has historical
and cultural value to our children, their children and their grandchildren."195
The Nez Perce sought repatriation of the collection. Tribal leaders met with the
Society Board and suggested several compromises, including a permanent loan or a
donation. In a radio interview, director Ness explained the Societys dilemma. How can
a nonprofit organization that seeks regular contributions from the public and private
sectors justify giving away such a culturally and financially valuable collection.196 The
Nez Perce agreed to purchase the collection on or before June 1,1996 for its 1993
estimated value of $608,100. The persistence of the Nez Perce and the importance this
collection held for them persuaded the Society to agree to sell the collection.197
Maggie Sanese, Communications Manager for the Historical Society, expressed that
the Society feels it has been misjudged in this situation by the NPS and the media.198 The
NPS officials who administer the NAGPRA program assumed that the Society was
insensitive to Native American concerns. For example, Frank Walker, superintendent of
the National Historic Park in Idaho, stated in newspaper interviews that he finds it
incredibly difficult to watch a tribe of just 3,000 members try to raise over $600,000 "to
buy back their culture."199
194 Ken worthy.

195 Ibid.
196 National Public Radio's "Morning Edition" report by Ruby De Luna, "Nez Perce American Indians
197 Kenworthy.
198 Maggie Sanese, Communications Manager for The Ohio Historical Society, interview by author, 6
March 1996.
199 Kenworthy.
66
In a National Public Radio report in March 1996, journalist Ruby De Luna
suggested that the Society had been inflexible in working with the Nez Perce and was
exploiting the tribe's need to repatriate the collection.200 Much misinformation was
presented. NPR reported that, to date, the Nez Perce had only raised $20,000 of the
$600,000 due on the first of June. Sanese explained this information was false. In fact,
the Society's Board, which has been meeting regularly with council members to discuss
problems the tribe is encountering, learned that the tribe had raised $280,000 in cash and
promised donations as of March. Further, the Society is determined to see the collection
returned to the Nez Perce. In fact, they have decided to extend the purchase date to the
end of June, and if the tribe has not raised enough funds, the Society will return the
collection in exchange for the tribe's promise to raise the remainder of the money.201 The
money from the purchase of the collection will contribute to the preservation of the
Society's collections. In addition, she stated, both sides were open to discussion and
committed to working out a compromise resolution.202
Tribal representatives agree that the Society has maintained open and useful
dialogue, but, as Nez Perce attorney Julie Kane stated: "Tribal leaders wish they didn't
have to pay that huge amount of money," but "purchase is the only option."203 Preserving
Indian culture is a tribal priority" for the Nez Perce.204 Tribal dollars are scarce. This is
particularly true of the Nez Perce tribe. Fifty percent of the tribe's population is
unemployed.
No price tag can be placed on tribal spirituality. The return of sacred objects into
200 National Public Radio's "Morning Edition report by Ruby De Luna, "Nez Perce American Indians
201 Maggie Sanese, Communications Manager for The Ohio Historical Society, interview by author, 6
March 1996.
202 Ibid.
203 Givens, 8A.
204 Ibid.
67
tribal hands enhances and strengthens tribal culture. A reconnection with ancient
ritual and ceremony fills an empty space and longing in Indian identity, allowing a
discovery of our true Indian selves.205
A compromise was reached in this conflict, but whether both parties were equally
satisfied with the resolution is unclear.
205 Givens, 8A. Jeanne Givens is a member of the Coeur d'Alene Tribes, a board member of Americans
for Indian Opportunity, and former member of the Idaho legislature.
CHAPTER 6
REPATRIATION AS AN INTERNATIONAL ISSUE
The repatriation of Native American artifacts and burial remains is not only a
domestic issue. With the establishment of influential Native American advocacy groups
such as the National Congress of the American Indian and the Native American Rights
Fund, the United States has become an influence on the Aboriginal movement abroad,
particularly with respect to the issue of repatriation. Important groups such the American
Association of Museums have recognized that "the return of materials from museum
collections to indigenous populations is both a domestic and an international issue."206
Institutions such as the Field Museum of Natural History in Chicago have joined in
support. Its trustees have rewritten the Museum's policy on repatriation to include
returning all sacred artifacts and human remains to Native Americans and Canadian and
Australian aborigines.207
Indigenous people from all over the world share similar concerns as Native
Americans. Specifically, indigenous tribes from South Africa ask the same question of
Europeans that Native Americans ask of Americans: Who has a stronger claim to the
history and culture of Europe's conquest of Africa?208 For example, in 1810, Saartijie
Baartman, a woman of the South African Khoikhoi tribe, was brought to England as an
object of curiosity. Europeans called her the "Hottentot Venus." She died of tuberculosis
206 American Association of Museums, " Policy Regarding the Repatriation of Native American
Ceremonial Objects and Human Remains," 15 January 1988.
207 King, K l.
208 Duke.
68
69
in 1815. After her death, her skeletal remains were displayed across Europe. Her
remains are now stored in the Musee de L'Homme in Paris. Today, with new political
and social changes in South Africa, Saartijie Baartman is the object of the new South
African indigenous people's movement to reclaim their past. The Khoikhoi and other
tribes are using this case to set right the racist representation of indigenous people, to gain
recognition of their rich culture and history, and to repatriate the remains of their
ancestors who were part of the European conquest. For like the Native Americans, the
indigenous people of South Africa were seen in the past as primitives, inferior to the
White Man.209 The current Foreign Minister of South Africa stated that the process of
healing and restoring national dignity will not be complete until the remains of Saartijie
Baartman are returned.210
The legal and social developments regarding repatriation of Native American
property in the United States have contributed to aboriginal confrontations in Canada and
Australia.211 In 1989 the World Archaeological Congress, in Association with the
International Indian Treaty Council, the World Council of Indigenous Peoples, and
American Indians Against Desecration, held a special inter-congress conference entitled,
"Archaeological Ethics and the Treatment of the Dead." Representatives from indigenous
groups and scientific communities from all over the world, including Australia and
Canada, met to discuss their ideas and opinions. Indigenous people and archaeologists
shared their experiences, and addressed the disposition of aboriginal remains and burial
objects. Australian Aborigines expressed their frustration with Australian archaeologists
who believe they are most capable of preserving and interpreting the history and culture
209 Ibid.
210 Ibid.
211 Price, 18.
70
o f indigenous people.212 They also expressed their ongoing conflict with European
powers such as England for the repatriation of their ancestral remains. The British
acquired many aboriginal "trophy heads" in their conquests of Australia. These skulls,
along with skeletal remains of several aboriginal tribal members are stored in the British
Natural History Museum. The Australian indigenous groups have expressed their sense
o f humiliation and sacrilege at the display of their ancestral remains and have requested
their return. British officials have been responsive to their concerns by not displaying the
remains, but they continue to refuse to return the skeletons because they are a part of the
British national collection.213
Discussions continue among indigenous people around the world. A lack of
definitive law regarding repatriation is a commonalty to all countries. The enactment of
the Native American Grave Protection and Repatriation Act in the United States presents
progress and reason for hope to native people around the world. Indigenous people see
that this conflict can be addressed and there are ways to resolve it. Native American
demands for recognition of the importance of this issue and the Federal Government's
passage of NAGPRA serve as examples for other native people.
Repatriation is not limited to indigenous peoples. It is a universal problem affecting
even mainstream art and culture. Western nations, from Germany to Greece, have
encountered similar problems regarding control over their cultural property. Domestic
laws and ill-defined international laws underscore the problems of repatriation
worldwide. There have been several international treaties and conventions, but they are
vague and often unenforceable. The European Cultural Convention, The Hague of 1954,
for example, "gives a moral obligation to give back what was illegally taken."214 More

2,3 Duke.
214 Barbara Hoffman, "The Spoils of War," Archaeology, November/December 1993, p. 39.
71
recently, the United Nations Educational Scientific and Cultural Organization Convention
(UNESCO) was established in 1970 to prohibit and prevent the illicit import and export,
and transfer o f ownership of cultural property.215 UNESCO was originally created to
address the problem of looting, theft, and smuggling of international art treasures. It
recognizes the responsibility of each nation to protect its own cultural property as
"objects highly charged with cultural significance...," and includes materials of
"archaeological and ethnological importance."216 UNESCO advises nations to take part
in international cooperative efforts and to consider each problem individually.217 The UN
Convention is similar to early U.S. legislation, particularly the American Indian Freedom
of Religion Act, which addressed Native American repatriation with only suggestion and
encouragement. AIFRA did not mandate the return of all Native American property, but
only advised Federal agencies and federally assisted entities to consider the idea.218
The failure of ill-defined and unenforceable international laws to resolve
repatriation conflicts is evident. For example, Greece and Great Britain have been
battling over the fate of the Elgin Marbles for decades. The Greeks insist that the marbles
were removed from the Acropolis by Lord Elgin, the 19th century Ambassador to
Constantinople, without permission in 1916. The British, however, argue that Lord Elgin
acquired the pieces with permission and, even if he did not, "history moves on."219 In
addition, they declare that British law forbidding dispersal of national collections must
prevail.220 Because there is no effective international law to resolve this dispute and the
two countries cannot cooperate, it will most likely continue.
215 Malaro, 73.

2,6 Irene Winter, "Cultural Property. Art Journal, Spring 1993, 103.
217 Ibid.
218 Price, 18.
219 "Cultural Piracy," The Futurist, January/February 1992,40.
220 Winter, 103.
72
Another more complex example is the recent discovery in the Russian archives of
art removed from Germany at the end of World War It. The Russians view the thousands
of artworks taken from the Nazis as restitution for the vast destruction the Nazis inflicted
on the Soviet Union during the War. The Russian Parliament has even declared most of
the art plundered from Germany as Russian property.221 The Germans claim that the
majority of the art was stolen by the Nazis during the war from German individuals,
museums, and libraries and should rightfully be returned to Germany.222
The two countries are embroiled in negotiation.223 With no international laws to
resolve the situation, resolution is still uncertain. The repatriation issue abroad is
complex, involving the age-old characters, beliefs, politics, religion, and history of
diverse nations. The Native American situation is equally complex, involving these
factors as well as the traditions, beliefs, and history of hundreds of individual tribes who
have occupied what is now the United States for thousands of years. However, with the
increased emphasis on national awareness of Native American interests and concerns, the
future looks more promising for a lasting resolution of the Native American repatriation
issue.
221 Christopher Knight and Carol J. Williams, "Hermitage Tries a Western Idea to Cash in on Exhibition,"
Los Angeles Times, 31 March 1995, F2, F6.
222 Rod MacLeish, "Art Historians may Rank the Hermitage Exhibition as the Most Important o f Its Genre
Since the Armory Show, Vanity Fair, March 1995, V. 58, 144.
Others also claim ownership of the stolen art. Claimants, including individuals and museums purport their
art was stolen by the Nazis and have made their way into museums and collections ail over the world.
223 Knight and Williams, F2, F6.
CHAPTER 7
CONCLUSION
There has been enormous progress over the past years in resolving the repatriation
conflict. Because of the vocal representation of the Native American community,
communication has increased and ground breaking laws such as NAGPRA have been
enacted. More than 2,700 human remains and 123,000 sacred objects have been
repatriated from hundreds of museums and universities since the enactment of the 1990
law.224 A recognition of the Native American people's urgent need to maintain and
perpetuate their tribal identity has emerged.
Many museum professionals and scientists have discovered ways to compromise in
meeting needs of Native Americans. Museum curators are reviewing the content and care
of their collections and reevaluating the quality of their exhibits. Archaeologists and
anthropologists are reconsidering the practice of studying each and every bone fragment
and artifact. Organizations such as the AAM acknowledge that there are still institutions
that fail to accommodate tribal needs or recognize their concerns. They assert, however,
that museum professionals and scientists are committed to increasing cooperative
relations with tribal groups, including consulting with tribal leaders about future exhibits,
collections care and interpretation, and excavations and research. The Federal
Government has helped foster this open communication through the enactment of NMAI
and NAGPRA. Even failed legislation such as the Cultural Preservation Act and the
1995.
73
74
Museums Claims Commission Act contributed greatly to the heightened awareness of the
repatriation issue.
Although awareness has increased exponentially, repatriation is a complex issue and
a final resolution has yet to be reached. Significant cultural and religious values are in
conflict. Attitudes from all sides must continue to change and there must be continuing
sensitivity to the diverse interests and concerns. It is not just the attitude of the public,
individual museums, scientists, and Native Americans that must evolve. The Federal
Government and influential museum and scientific organizations must continue to
evaluate and redefine their policies and beliefs and encourage others to follow their
direction.
Indeed, the efforts by museum professionals and scientists have been impressive,
and Native groups have shared in this spirit of compromise. However, the Native
Americans' concerns about the less cooperative institutions and individuals are valid. The
fact that there are still those who fail to understand the profound importance of the
repatriation issue warrants a national mandate. Although NAGPRA can present a
financial burden to tribal groups and does not address all property that is a part of the
Native American heritage, the Federal Government can continue to provide a significant
forum in which Native Americans can be heard by the non-Indian, Native American, and
museum and scientific communities. Native Americans are satisfied with the statement
NAGPRA makes and consider it "the most far-reaching and satisfactory policy thus far
on this issue."225 Perhaps there will come a time when both sides believe that a Federal
statute is no longer necessary. However, as Senator Ben Nighthorse Campbell says,
"We've been fighting this battle for many years. And Indians have been fighting it for
225 Weintraub, BI.
75
their whole life...We shouldn't have to have a law to make people do what is morally
right. But unfortunately we have to in some cases.226"
226 Ibid.
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Who Owns The Native American Heritage

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INFORMATION TO USERS

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ISSUE OF THE REPATRIATION OF NATIVE AMERICAN

SACRED AND CULTURAL PATRIMONY

Faculty of the College of Arts and Sciences

of The American University

the Requirements for the Degree of

Performing Arts: Arts Management

Desundf College of Arts and Sciences

The American University

Washington, D.C. 20016

THE AMERICAN UNIVERSITY LIBRARY

UMI Microform 1383908

ISSUE OF THE REPATRIATION OF NATIVE AMERICAN

SACRED AND CULTURAL PATRIMONY

arguments posited by Native American tribal and advocacy groups, museum

professionals, and scientists.

professionals, archaeologists, legal experts, and Federal Government officials were

and scientific communities.

scientific communities have developed greater awareness and understanding of

contemporary Native American concerns. This progress is impressive. However, it is

2. BACKGROUND HISTORY OF THE TREATMENT OF NATIVE

Conquest of Native American Territory

Obsession with the Collection of Native American Artifacts and

Collecting in the 20th Century

3. SURVEY OF 20TH CENTURY FEDERAL POLICY AND

Federal Legislation 1906-1990

State Law and Repatriation

4. RELATIONS BETWEEN NATIVE AMERICANS AND MUSEUM

Museum and Scientific Communities' Response to Repatriation

Native Americans' View of Repatriation and Relations with

have been unable to resolve this complex issue of national import.

At the other extreme is an even smaller number of museum professionals and

however, believe there is a middle ground. Curators, archaeologists, and important

community to understand the ongoing fascination with excavating, collecting, and

displaying Native American objects, ceremonial artifacts, and in particular Native

Washington Post, 6 March 1991, sec. B l.

resolving individual disputes. Native Americans have assumed a stronger role,

protection and repatriation of Native American culture in recent years.

and policies regarding Native Americans and repatriation.

addressing the Native American concern.

analyzed. Finally, the thesis briefly addresses repatriation as an international issue. It

compared to conflicts abroad.

BACKGROUND HISTORY OF THE TREATMENT OF NATIVE AMERICANS

AND THE CONQUEST OF NATIVE AMERICAN CULTURAL

ARTIFACTS AND HUMAN REMAINS

Conquest of Native American Territory

the Passanamaquoddys of Maine to the Hoida of Alaska.

Archaeologists estimate that the Native American population in 1491 numbered in

and manufacturing. Some were governed by a matriarchal or patriarchal system; some

were ruled through single tribal leaders or advisors made up of elders.

sovereignty in order to gain rightful land purchases.

Missionaries moved to tribal territories to convert tribes to Christianity, encouraging

Indian Sun Dance.13

acres of land.14 By 1887, Indian reservations were established, pushing Native

disease, the Native American population was estimated to be 250,000.15

justification, then, later in the 19th century, through scientific reasoning.

changed from religious justification of why Native Americans varied so greatly in

inherent inability to change.19

adapt to a superior culture.

During this period, Americans were influenced by the European philosophy of