The Struggle to Repatriate the Skeletons in Our Closets

Artifacts on display in the Fordham Museum of Greek, Etruscan, and Roman Art in New York. Photo courtesy of Dan Diffendale. 

In 1990, Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA), which outlines the process for museums, universities, and federal agencies to return Native American and Native Hawaiian remains and cultural objects to their lineal descendants, respective tribes, or Indigenous organizations. By 2023, over 2,500 human remains and over 35,000 funerary objects were repatriated thanks to NAGPRA. But, upon further dissection of the law, NAGPRA is fraught with structural flaws. It struggles to protect Indigenous remains in disputes over ancestry, does not mandate the repatriation of unethically-collected remains from non-Indigenous populations or non-recognized tribes, and does not address other conflicts between scientific and Indigenous communities. For a law that is centered on rectifying the systematic desecration of human remains, it certainly has a bare-bones framework and lacks the forethought necessary for an effective policy. 

Long before NAGPRA, the colonization of the Americas and the Antiquities Act of 1906, which defined deceased Native Americans on federal land as federal property, led to the exhumation, theft, and examination of tens of thousands of Native American skeletal remains. During the 18th and 19th centuries, anatomical laboratories needed cadavers to teach human anatomy to medical students, leading to a high demand for human remains. Though later recognized as unethical, efforts to supply this demand were not just permissible but legally sanctioned. For instance, the Murder Act of 1752 in England allowed the dissection of executed murderers for scientific study. In 1854, the State of New York passed the Act to Promote Medical Science and Protect Burial Grounds that allowed medical schools to collect and study bodies that were left unclaimed 24 hours after death. This law especially impacted poorer families who did not have the money to claim a body, much less transport one before cars existed. 

In the 20th century, India became the primary exporter of human skeletons, and American universities purchased 70% of India’s skeletons each year for the purposes of teaching and displaying human anatomy in museums, laboratories, and classrooms. These skeletons, too, were often unethically obtained in their places of origin. For years, scientists targeted marginalized communities to facilitate the growth of their skeletal collections, museums filled their exhibits with individuals who never consented to becoming objects of display, and universities dissected and studied deceased humans with little to no regard for the wishes of the deceased or their families—inflicting suffering on these individuals in both life and death. 

Congress passed NAGPRA in 1990 as a response to grave robbers stealing Native American remains in western Kentucky and Native Hawaiian remains in Maui in the preceding decade—two incidents that generated public support for a federal law protecting Indigenous burial grounds and creating an ethical path forward for the study of humans and cultures. Suffice to say, its application has not gone exactly as expected. One infamous example of NAGPRA’s shortcomings occurred in 1996, when two college students found the skull of a roughly 9,000-year-old human on the shores of the Columbia River in Washington State. Because the skull did not resemble the skull of a Native American today, scientists initially assumed the individual was not Indigenous and may have even been European, and thus argued that NAGPRA—and other repatriation regulations—did not apply. 

In contrast, Native American organizations argued that this individual, dubbed “Kennewick Man” after the nearest city where he was found, was of Indigenous ancestry on account of the Columbia Plateau tribes’ presence in that region for thousands of years. Legal battles ensued and questions of authority erupted. It was not until 2015, when DNA evidence revealed that Kennewick Man was likely Native American, that this case was finally resolved, on discouraging grounds, however. Rather than relying on Native American oral histories and cultural knowledge, or even fostering relationships with Indigenous groups, scientists clung to the idea that Kennewick Man was European until confronted with indisputable scientific evidence. Thus, the aftermath of Kennewick Man’s discovery furthered tensions between scientists and the Indigenous community, despite NAGPRA’s passage aiming to foster cooperative relationships between these groups. 21 years after his initial discovery, Kennewick Man was repatriated to the Columbia Plateau tribes and reburied near the Columbia River. The story of Kennewick Man highlights how NAGPRA lacks sufficient direction when disputes arise over ancestry, causing possible repatriation efforts to take years or even decades.

Another defect of NAGPRA concerns who has the right to be repatriated. NAGPRA only protects federally recognized tribes, excluding populations like enslaved African Americans or African Americans whose remains were unethically excavated from cemeteries. For example, the University of Pennsylvania’s Samuel G. Morton Cranial Collection included more than 50 skulls from enslaved individuals, which researchers used to advance the idea of white superiority by claiming that the proportions of these skulls represented less intelligence. Though universities have the option of repatriating these remains, and sometimes do so under public pressure, NAGPRA fails to mandate the protection of African American individuals’ remains and graves. Debates in Congress surrounding NAGPRA’s original passage make no mention of the inclusion of African American remains, likely reflecting Congress’s view of racial justice and cultural sovereignty as separate aims, despite the two being inherently interconnected. This is not to say that the only solution is for NAGPRA to expand its language to include other marginalized communities, but that NAGPRA alone does not appropriately regulate all individuals within American universities’ skeletal collections.

It is also worth noting that NAGPRA only protects tribes that the US government formally recognizes, leaving at least 400 tribes powerless to protect their ancestors from abject desecration. To obtain formal recognition, tribes must establish a “substantially continuous tribal existence” and that they “have functioned as autonomous entities throughout history until the present.” This criteria under NAGPRA is plainly unjust, especially as states like Ohio lack any federally recognized tribes because their kin were displaced throughout the 19th century. By placing the legal burden of proof on tribes, NAGPRA implies that any failure to prove cultural affiliation automatically grants museums or universities authority over the disputed remains. Thus, universities are legally allowed to study remains and artifacts from tribes that are not federally recognized, and they are not required to return them. The problem is not necessarily with individual researchers or even universities but with NAGPRA itself. Even the most well-intentioned and informed researcher making a good faith effort to repatriate remains to these tribes would experience difficulties doing so because of NAGPRA’s limited guidelines for who can be repatriated. For example, a Harvard University report notes that to return non-Indigenous individuals in their human remains collections, the university must convene a Human Remains Returns Committee, conduct provenance research, and identify and consult with descendant communities—tasks that may be difficult to complete without assistance from the federal government. 

On top of NAGPRA’s narrow scope regarding the repatriation of human remains, NAGPRA also only addresses a sliver of the tension between scientific researchers and Indigenous communities, not the least of which concerns land rights. For example, construction began in Hawai‘i in 2014 to build an observatory known as the Thirty Meter Telescope (TMT) atop of Mauna Kea. Proponents of the TMT argued Mauna Kea was the best location for the observatory due to its height of 13,000 feet above sea level and isolation from light pollution sources. However, Mauna Kea is considered a sacred place by Native Hawaiians for its connection to the god Wakea. Memories of comparable desecration during the colonization of Hawai‘i likewise play no small role in local resistance to this construction. NAGPRA—and the Congressional debates preceding its passage—fail to yield any framework for conflict resolution in these deeply interrelated disputes between scientists and Indigenous people, which is why protest and civil disobedience feel necessary for serving justice in the cases of the Kennewick Man and Mauna Kea. It is worth asking why public demonstration is a prerequisite for righting the wrongs of the past, and indeed preventing the wrongs of the future. Even if NAGPRA’s original intent was to only address grave robbing and the unethical retainment of Indigenous remains, the lack of subsequent regulations on related issues fails to create a collaborative path forward between researchers and Indigenous communities.

While NAGPRA forces museums and universities to reflect on their skeletal collections and to repatriate Indigenous remains and artifacts, it fails to effectively mandate the repatriation of all unethically sourced human remains or address other related injustices committed by the scientific community against marginalized populations. Several questions remain, such as how a university should proceed if they cannot identify the origins of an individual, if they cannot contact the respective tribe or descendant that the remains would be repatriated to, or if there are contested claims between genetic descendants and cultural communities over a certain individual. Revisions made to NAGPRA earlier this year clarified ambiguous language and required museums and universities to consult with tribes to determine where an individual should be returned. However, more revisions or new federal legislation that addresses many unresolved questions is required for NAGPRA’s goals to effectively come to fruition. 

Few things in science are ever certain, but the law should be. Remains that come from marginalized communities deserve respect, and if passing a comprehensive law is the only way these remains will gain this, then there must be a push to address the pathologies in NAGPRA and rearticulate the law altogether. As Reverend Doctor Jesse Wendell Mapson observed regarding the University of Pennsylvania’s treatment of 200-year-old African American remains, “Society treats its dead as it treats its living, not always with dignity, sometimes with contempt … If the same mistakes are made again, shame on us.”

Charla Teves (BC ’25) is a columnist at CPR studying political science and anthropology. She is passionate about social justice and hopes to highlight new strategies to tackle current issues in her writing. She can be reached at ct3132@barnard.edu.