The Native American Graves Protection and Repatriation Act requires federally funded institutions to catalog, report and return Native American ancestral remains and funerary objects.
With exemptions for cases in which institutions can prove legal ownership, the 33-year-old law known as NAGPRA was updated in January with requirements that researchers obtain tribal or lineal descendants' consent before exhibiting or conducting research on human remains and related cultural items.
While many Indigenous leaders are encouraged by stronger provisions in the law, anthropologist Elizabeth Weiss says the whole thing should be scrapped because repatriating human remains hinders scientific research.
"A research collection's ability to inform us never, never dies, because you have new hypotheses that can be used to test, and you also have to retest old hypotheses when new methods develop," the San Jose State University professor told VOA.
What the law says
Weiss argues that NAGPRA undermines the separation of church and state because it gives traditional Native American religious leaders a say over whether and to whom human remains will be returned.
"NAGPRA was passed with the requirement that two of its [seven] committee members must be traditional Indian religious leaders," she said. "Further, it allows only one type of religious evidence to be used in repatriation — and that's Native American creationism."
Weiss says the law has led to institutional guidelines for the handling of remains based on what she calls tribal "mythology," including a provision at her university that blocked people who are menstruating from handling skeletal remains.
"And the more you allow the acceptance of this kind of superstitious pseudoreligion to creep in, the more widespread it becomes," she said
In November 2021, San Jose State's Anthropology Department issued guidelines on the handling of Native American ancestral remains that read, "Menstruating personnel will not be permitted to handle ancestors."
The university rescinded that in April 2022.
History of grave robbing
Niiyokamigaabaw Deondre Smiles, a citizen of the Leech Lake Band of Ojibwe in Minnesota, is an Indigenous geographer at the University of Victoria in British Columbia, Canada. He said Weiss is misguided.
"On its face, she makes what looks to be [a] convincing and appealing argument that scientists are working for the betterment of humankind and that Indigenous opposition is based in which she terms 'pseudoscience' and stifling the process," he said. "What she doesn't really engage with is a very long history of grave robbing of Indigenous burial sites in the name of science."
Smiles gave the example of mid-19th-century "craniologist" Samuel Morton who amassed and measured hundreds of human skulls to support his belief in five races, each created separately, whose cranial size determined their place in the racial hierarchy.
"In their mental character, the Americans are averse to cultivation, and slow in acquiring knowledge," he wrote in his 1839 book, Crania Americana.
Smiles said, "There's been a really long history of people treating Indigenous remains as just simply objects of curiosity, as things that are made to be studied, rather than belonging to human beings once upon a time."
NAGPRA previously allowed institutions to retain artifacts they deemed "culturally unidentifiable." That provision has now been removed, and tribal historians and religious leaders will now have a voice in determining where those items should go.
Attorney Shannon O'Loughlin, a citizen of the Choctaw Nation of Oklahoma, heads the Association on American Indian Affairs, a nonprofit that helps tribes navigate NAGPRA processes.
"The law is very clear that institutions do not own Native bodies or cultural items unless they can prove a right of possession," she said. "If some tribes ask for certain accommodations and protocols, that's because they're the true owners."
O'Loughlin stressed that NAGPRA does not prohibit research or display of Native remains.
"It simply requires consent. The whole point of the law is to bring tribes to the table where they've never been allowed before and to educate museums about items in their collections and why they are significant."
