Pine Tree Legal’s Indigenous Peoples Unit was asked by the Wabanaki Intertribal Repatriation Committee to work with them on drafting comments to the United States Department of the Interior (Interior) on updating the regulations for the Native American Graves Protection and Repatriation Act (NAGPRA). These comments were submitted as a part of a Tribal Consultation comment session on a draft of proposed updated regulations. We sat down with Indigenous Peoples Unit Advocate Ryan Lolar to learn more.
What is repatriation and what is NAGPRA?
Repatriation, in this context, is the return of ancestors, objects, art, and any other form of tangible items that were taken from where they rightfully were or from the people(s) who rightfully had possession of them. Internationally, repatriation is acknowledged as a right of Indigenous People in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as is the right to protect culture:
- Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. UNDRIP, Art. 11(1).
- Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. UNDRIP, Art. 12(1).
For Indigenous Peoples in the United States, efforts to repatriate have been ongoing since ancestors and objects were stolen in the first place. However, successful advocacy by Tribal Nations and Indigenous advocates led to the passage of NAGPRA in 1990. NAGPRA sets federal standards on excavation, documenting collections, consultation, and repatriation for federal agencies and museums that receive federal funding. NAGPRA is put into effect through a serious of regulations at 43 CFR Part 10. Ultimately, the best way to put how NAGPRA should work is to take the National Park Service’s (NPS) word for how it should work:
By enacting NAGPRA, Congress recognized that human remains of any ancestry "must at all times be treated with dignity and respect." Congress also acknowledged that human remains and other cultural items removed from Federal or tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, and Native Hawaiian organizations.
Outside of the legal framework, repatriation restores balance to the community and begins to right the injustice of stealing ancestors, funerary objects, sacred objects, and objects of cultural patrimony from traditional lands. Our ancestors and all our generations deserve dignity and respect, and that dignity and respect in this space starts and ends with repatriation.
What is the Wabanaki Intertribal Repatriation committee?
The Wabanaki Intertribal Repatriation Committee formed in the early 1990s following the passage of NAGPRA to engage in a coordinated effort to bring home Wabanaki ancestors and their funerary objects from museums and federal agencies. The Committee is composed of representatives from all of the federally recognized Wabanaki communities: the Penobscot Nation, the Passamaquoddy Tribe at Motahkomikuk, the Passamaquoddy Tribe at Sipayik, the Houlton Band of Maliseets, and the Mi’kmaq Nation. Every meeting begins with a smudge and prayer with an offering of tobacco to enlist the spiritual guidance of the ancestors. The Committee has successfully worked to get several museums to repatriate ancestors and funerary objects. They continue to work toward the repatriation of ancestors and funerary objects and look forward to bringing more ancestors home.
What is Tribal Consultation?
Here, the comments the Committee submitted were part of a Tribal Consultation comment session. If you’re reading this and have a background in Administrative Law, you may know about the public notice and comment process that the federal government and most state governments have. However, the Tribal Consultation comment period exists as a part of the Trust Responsibility and the government-to-government relationship between the United States and Tribal Nations. The Trust Responsibility requires the federal government to listen to the position of Tribal Nations whenever it takes actions that impact them. For the update to the NAGPRA regulations, the federal government held listening sessions with Tribal Nations and opened a comment period solely for Tribes and Native Hawaiian Organizations.
It would be more involved than there is space available in this newsletter to get fully into the Trust Responsibility, but at least when considering federal actions, federal agencies follow the Trust Responsibility based on legal precedent and through Executive Order 13175 (EO 13175). EO 13175 sets a baseline for consultation and coordination with Tribal Nations. It was re-emphasized this past year when one of the new administration’s first actions was to issue the Presidential Memorandum on Tribal Consultation and Strengthening the Nation-to-Nation Relationship. There are numerous forms of Tribal Consultation that can take place with federal actions and the strength and depth of the process can vary agency to agency and project to project.
There have been movements domestically and internationally to make a more robust form of Tribal Consultation that would implement a concept called Free, Prior, and Informed Consent (FPIC). FPIC would require the federal government, and any states that implement similar concepts, to more fully work with Tribal Nations to approve of projects before they occur. Currently, Tribal Consultation can be just a box that a federal agency or state agency has to check before advancing on the course it started out on. FPIC would make both Tribal Consultation and Tribal consent necessary for actions with implications for Tribal Nations.
What was Pine Tree Legal’s involvement with this Tribal Consultation process?
Pine Tree worked with the Committee on drafting comments based on what the Committee would like to see in updates to the NAGPRA regulations. The Committee’s thoughts were informed by the barriers the Committee has faced in trying to repatriate ancestors and funerary objects and were informed by a respect for the thoughts of Tribal Nations in other parts of Indian Country. One aspect we focused in on is the situation where museums identify ancestors and funerary objects as “culturally unidentifiable” because NAGPRA and the NAGPRA regulations impose the lowest burden on museums to repatriate “culturally unidentifiable” ancestors and funerary objects. The New York Times covered this exact problem in an article this past summer and specifically identified some institutions that are the most problematic when it comes to this practice (https://www.nytimes.com/2021/08/06/arts/design/native-american-remains-museums-nagpra.html). Another problem that was of particular concern was who the consultation burden falls on between the museums and Tribes when it comes to everything from setting up meetings to identifying cultural affiliation.
We also worked with the Committee on incorporating some of what has been discussed above such as asking for a more robust consultation process with Interior and a fuller state mechanism for ensuring that the goal of repatriation at the heart of NAGPRA is more often the result of consultation with museums and federal agencies. It is no secret that despite the improvement NAGPRA has made since its passage that museums and federal agencies still hold thousands and thousands of ancestors and funerary objects in their collections that they have not worked to repatriate.
The Committee and many in Indian Country would like to see NAGPRA live up to its full potential, and to see similar programs implemented in other countries where Indigenous Peoples do not currently have a law on the books, such as Canada.
What has happened with the case so far?
We were able to work with the Committee and their allies to submit comments to Interior on the updates to the NAGPRA regulations. The timeline that Interior set was relatively quick for getting through a set of new regulations. There are differing views in Indian Country on whether Interior’s short timetable for these updates is the right approach, but many Tribal Nations requested that Interior take more time to do another round of Tribal Consultation before opening up the draft of the proposed regulations to public comment. Now we are waiting to hear from Interior on what their next steps are so we can continue to work on this project and make sure that the Committee’s voice and the voice of Wabanaki people are heard by Interior on the important process of repatriation in sync with other Tribes throughout the land. There is a common goal among all Tribes to repatriate their ancestors that have been taken and held for too long without the Tribes’ free, prior, and informed consent.