New Rules

Case studies in the new NAGPRA regulations

Those who have followed this newsletter for a while may have noticed that I’ve had little to say directly about massive regulatory revisions to the Native American Graves Protections and Repatriation Act (NAGPRA) that went into effect earlier this year. I could tell you that I’ve been carefully constructing the right thing to say, judiciously poring over my words to strike the right balance between criticism and acknowledgement. But the truth is, I don’t understand them and nobody I have spoken to does either.

The new regulations were heralded by the Biden administration as a means of “strengthening the authority of…Tribes in the repatriation process by requiring deference to Indigenous knowledge” over archaeological, historical, or other forms of science-based knowledge based in the Western tradition. However, the extent of that deference, like many aspects of the New Rules, is entirely unclear. In some passages, the DOI seems to indicate that deference to Indigenous knowledge is absolute:

Other passages make that interpretation seem overblown:

Or consider the new definitions for “cultural items”, which each append a clause that seems to mandate deference to Native American traditional knowledge:

But in the DOI’s explanations for these definitions, they deny such deference exists:

The double speak is present even within individual passages, such as this gem:

In which the DOI says within a single paragraph that entire collections are required for reporting under NAGPRA and only portions of a collection are required. These sorts of confusing contradictions are the norm in the New Rules, not the exception.

So I’ve gone back and forth on the matter, discussing with colleagues and attorneys with decades of experience implementing NAGPRA the right path forward, but nobody really knows what to do. Eventually, I came to a simple conclusion: it’s not me, it’s you. The regulations are poorly written, internally contradictory, laden with vaguely defined terms, and all around impossible to implement consistently.

Accordingly, interpretations vary. So rather than attempt to decipher the New Rules one line at a time, a seemingly fruitless endeavor, I’ll instead speak to their tangible impacts on heritage management as enacted by professionals grappling with their implications since January. Here, I’ll highlight several case studies that may serve as a bellwether of things to come.

Shuttering Museums

The most widely publicized repercussion of the New Rules is the shuttering of Native American exhibits in museums throughout the country. One of the first instances of this trend occurred near me in Colorado, where the Denver Museum of Nature and Science (DMNS) shuttered their beloved North American Indian Cultures Hall before the New Rules even passed because it perpetuated “racist stereotypes”. The exhibit was typical of North American Indian exhibits throughout the United States, featuring Native-made crafts, ethnographic objects, artifacts, and some interpretive signage highlighting the diversity of North American Indian culture.

The Denver Museum of Nature and Science’s acknowledgement of harm released after shuttering their North American Indian Cultures Hall.

After the New Rules passed, the DMNS closure was followed by high profile museums throughout the country. A brief internet search for the topic yielded the Denver Museum of Art, the American Museum of Natural History, the Chicago Field Museum, the Cleveland Museum of Art, the Harvard Peabody Museum, the Skinner Museum, the Mount Holy Oak College Art Museum, and the Memorial Hall Museum, among others. Each cited the New Rules prohibition on displaying the now loosely defined ‘cultural items’ as justification for shuttering their exhibits. Without knowing what cultural items are, how can one ensure compliance short of tearing it all down?

Closer to home and with little fanfare, our local Plains History Museum took down their exhibit of Indigenous artifacts in an attempt to comply with the New Rules. The Museum is privately funded, and their modest collection of arrowheads and other Plains Indian artifacts was inherited from local collectors interested in having their finds available for others to see. The move didn’t make the papers and they weren’t required to take down the exhibit in the first place. I have to imagine that local museums throughout the country have made similar moves that have gone undocumented by the National press, misguided by the fear of reprisal under the New Rules.

If the overarching goal of the New Rules is to empower Indigenous voices, then I have to think that erasing their culture from museums might be counterproductive. Paraphrasing a Native visitor to one of my archaeological excavations this summer, “I took my kid to see the North American Indian exhibit in Denver last month to see some of his heritage, but it was gone! I don’t know what they’re thinking.” Interactions like these highlight an important point to which I keep returning in this newsletter. Much of the American repatriation debate is monopolized by a small number of radical voices that possess high-minded, alienating ideas regarding the roles of archaeology and museums in managing cultural heritage that seem odd and counterproductive to the great majority of people. Most people, Native or not, just want to see the fruits of American cultural diversity on display for all to appreciate.

One last thought on this. I’m sure there are some objects and interpretive displays in museums that Native communities have always objected to putting on display. Those should be removed. I’m also sure that they are few and far between. Most North American Tribes produced traditional crafts for commercial sale in the late 19th and early 20th centuries, many of which ended up in museums. This remains common practice. Other objects were gifted, either directly to museums or to individuals that later donated them to museums. The notion that museums routinely “stole” their collections of Indigenous objects, as claimed by proponents of the DMNS closure, is an activist fabrication used to inflame the repatriation debate. It’s hard not to view this narrative as an outright lie, and frankly it’s a betrayal of past Native individuals who worked hard to safeguard their cultural traditions through collaboration with museums.

Shuttering Research

Although it has received less media attention, archaeological research has similarly been shuttered to comply with the New Rules. Research prohibition is a central feature of the New Rules, and some organizations have interpreted the vague language surrounding research to the extreme.

A colleague of mine began researching North America’s only mastodon kill in 2020, a ca. 13,000 year old Clovis culture site near St Louis, Missouri named Kimmswick. The site is well known and preserved by Missouri State Parks for public interpretation, but lingering questions about it remain. How old is it exactly? Is there spatial structure to the arrangement of stones and bones that might indicate how humans interacted with the animal? There are less than 20 widely accepted mammoth and mastodon kill sites in the entire New World, and Kimmswick is an extremely important part of that record.

Things were going well until January, when the DOI published the New Rules. In March, my colleague received a letter from the Missouri Department of Natural Resources, the State agency responsible for managing Kimmswick. I’ve included that redacted letter in its entirety below.

To summarize, the letter strings together several passages from the New Rules to deny a research request on animal bones, artifacts, and field notes from the Kimmswick excavation until they could conduct consultation with Indigenous groups to determine if they maintained traditional knowledge about the site. This process, they say, could take years. To be clear, the Missouri Department of Natural Resources interpret the New Rules to suggest that modern people maintain oral traditions passed down through roughly 2,600 human generations about a single mastodon hunt that occurred over 13,000 years ago.

A particularly alarming aspect of this incident is the claim that researching field notes might be prohibited under the New Rules. The notion that knowledge itself can be censored and repatriated is….one way to interpret the New Rules I guess. But it’s a dangerous precedent to set.

Hiding History

Naturally, things are crazier in California, where they’ve taken things one step further by obstructing archaeological research on historic sites of Euro-American ancestry. As an outgrowth of CalNAGPRA, NAGPRA, and several State laws bolstering their influence, each institution must maintain a committee that controls access to archaeological collections housed in the California State University (CSU) system. The University of California (UC) system maintains similar committees. Archaeologists seeking to do research on archaeological collections must petition their respective committee for access, typically through an intermediary ‘NAGPRA coordinator’ that keeps things organized.

Knowing that access to Indigenous collections is now severely constrained, a colleague in the CSU system decided to transition their teaching aids to Euro-American archaeological sites of the historic era for which there currently exists no legal restrictions on access. Accordingly, they inquired through their Institution’s NAGPRA coordinator about using animal bones from a 19th century hospital dump as a teaching aid in an effort to continue training their students. The coodinator discouraged use of the collection on the grounds that the committee had not yet conducted consultation on sites in that County and had no basis for assuming that use of the collection was permissible by local Tribes. The consultation, they said, would take several more years.

This precedent suggests that California’s NAGPRA committees now have uncontestable control over the state’s entire archaeological record, both precontact Indigenous archaeology AND archaeology created by other ethnic and cultural groups during the historic era. At the least, this precedent has delayed education and research on California’s past by years. At worst, it is leading toward ending the practice of academic archaeology in California in its entirety.

Burning the Books

As a further blow to California, the worst of archaeologists’ fears is coming to fruition as entire archaeological collections are repatriated directly into ditches. A colleague in California recently reported to me that they were partially tasked with the disposal of all artifacts from private lands housed in the repository they helped managed, a result of political posturing by an outgoing University President. For this repository, the repatriation amounted to around 40% of their collections, or around 300,000 artifacts. Ironically, they even had to do an archaeological clearance for the reburial site, since the University didn’t want to disturb any archaeological sites when they excavated the trench used to dispose of the artifacts.

A couple months ago, the University transferred the artifacts into biodegradable boxes so they would disintegrate naturally in the ground, thus returning the artifacts to the earth in the most organic way possible. The reburial details are not entirely clear because Euro-Americans were not permitted to attend. From the details known, University personnel excavated a trench several feet deep on CSU property and filled it with boxes full of artifacts. They refilled the trench and went on their way, thus forever erasing a scientific record of California’s human past amassed since the early 1960s.

To this point, it’s been a mystery to archaeologists where the mountains of archaeological collections slated for repatriation in California are going. The most optimistic archaeologists assumed that Tribes making claims placed the collections in their own curation facilities, or at least in temporary storage, for future incorporation into museums or Indigenous archaeological research facilities. The most pessimistic assumed that the artifacts were sold on the black market. But Tribal curation facilities are few and far between and using repatriation to fund black market sales is exceptionally dark. The reality, it seems, is pretty simple. Tribes without the capacity to manage hundreds of thousands of repatriated artifacts are simply disposing of them in trenches. Better off buried than preserved.

Great Moments in Unintended Consequences

Reason magazine has a fantastic online series called Great Moments in Unintended Consequences in which they highlight well-intentioned government policies that go awry. NAGPRA would make a great example. A noble humanistic gesture intended to right past wrongs now co-opted over three decades later by ideologues to destroy large portions of the American archaeological record.

But maybe these consequences are exactly what the DOI intended all along. Maybe the confusing language in the New Rules is a feature rather than a bug, a feature intended to open the door for extreme applications of the Law while maintaining the plausible deniability necessary to remain within NAGPRA’s Congressional intent. Certainly, the DOI officials responsible for writing the New Rules are sympathetic to extreme political ideologies that advocate abolition of western-based science, and accordingly I have little trust in their capacity to serve as neutral arbiters of the Law.

Whatever the motivation and whatever the New Rules actually say, their implementation makes it clear that we’re here now, at a place where American archaeologists should take seriously the notion that the DOI poses a legitimate threat to the future of their science. It doesn’t matter if you have spent your entire career fostering collaborative relationships with Indigenous groups. It doesn’t matter if you only do collections-based research to limit your archaeological footprint. Hell, it doesn’t even matter if you do precontact or historical archaeology. The New Rules will place roadblocks in your career path and quite possibly prevent you from pursuing it altogether.

I must also acknowledge that the New Rules haven’t been a walk in the park for Tribal governments either. For every Tribal activist invested in ending American archaeology, there are many more just trying to manage their Tribal Historic Preservation Offices (THPOs) as best they can, tracking large development projects, managing monitoring crews, and working on Tribal cultural heritage projects, in addition to NAGPRA. The New Rules have created a quagmire of inquiries and requests for Tribal involvement by confused museums and agencies throughout the country demanding time and resources from THPO staff so that they remainin compliance with the Rules. The New Rules didn’t come with funding to support this increased workload, only demands.

In Law, Not Practice

I have always been a supporter of NAGPRA as passed by Congress in 1990. By the time I started my career, NAGPRA was deeply engrained within the culture of American archaeology. Most of the collections intended for repatriation by the 1990 law had long ago been reburied and it was common knowledge that archaeologists shouldn’t excavate human burials unless they had a damn good reason to. I still believe that the law corrected some legitimate human rights abuses, allowing America’s Native people to restore some dignity lost to war with the United States government. It was, and remains, a fundamentally decent law.

While I remain supportive of NAGPRA the Law, I no longer support it in practice. More archaeologists should publicly admit the same. NAGPRA in practice is a distant abstraction from its Congressional intent, perverted by series of regulatory revisions since 2010 by a small cadre of Administrative State activists within the DOI.

The activists need you to believe that there are two ways to practice archaeology: one that supports their vision of NAGPRA and another that doesn’t. Such is the vapid dichotomy of bipartisan politics. I probably don’t need to tell my readers these things, but they’re worth saying out loud: You need not abandon your moral and ethical sensibilities because a few bureaucrats in DC invented some New Rules. You are not racist nor bigoted for disagreeing with American Indian activists sometimes. You’re not always going to agree. Archaeology has done more good than harm and should be celebrated accordingly. You are not obligated to routinely honor and practice someone else’s religion in the context of your job. Don’t be afraid to land on the “wrong” side of this issue, and stand up for your science. There’s more of you than you think and, after all, you’re right.