Is NAGPRA Irretrievably Broken?

Humpty Dumpty sat on a wall,

Humpty Dumpty had a great fall;

All the king’s horses and all the king’s men

Couldn’t put Humpty together again.

In 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) became U.S. law.[1]  For its advocates, NAGPRA represented a watershed in “decades of struggle by Native American tribal governments and people…to retrieve stolen or improperly acquired religious and cultural property for Native owners.”[2]

NAGPRA created a mechanism for effecting the repatriation of what it calls “cultural items” from federal agencies and “public and private museums that have received Federal funds.”[3]  Under NAGPRA, an institution’s possession of an item included in its (sometimes overlapping) categories of “objects of cultural patrimony” and “sacred objects” is illegitimate from the get-go.  Such a piece, by its very nature, cannot be legitimately alienated from the tribal milieu.[4]  Hence the need to right earlier wrongs through repatriation.

Under the federal government’s aegis, NAGPRA established a process whereby institutions work with group and individual claimants to establish whether a piece is, in fact, an object of cultural patrimony and/or sacred object.[5]  If the parties agree this is the case, a “Notice of Intent to Repatriate Cultural Items” is published in the Federal Register. Typically, this notice specifies the relevant item’s status under NAGPRA, affirms the institution’s recognition of the claim’s legitimacy, and identifies to whom the piece will be repatriated pending the filing of a competing claim by a certain date.  NAGPRA contains no provision for the government or institution to follow up on a repatriated object’s final disposition, nor are successful claimants obliged to provide such information.

If the controlling premises of NAGPRA are accepted, the reason for this is logical: Since the transfer of a qualifying object from the tribal world was an illegitimate act, the custodial institution has no standing or interest in the piece’s location or status following repatriation.  As for successful claimants, NAGPRA encourages them to view repatriation as the legitimate restitution of an object for which accountability, beyond the fact of its return, is unnecessary.  While some view this situation as a great and good development, others find it a form of prestidigitation – now you see it, now you don’t.

As someone who has observed NAGPRA’s development over the years from an anthropologist’s and historian’s perspective, I have grown increasingly concerned about its involvement in that liminal area where the sacred and profane mix and mingle.  So it seems to me high time to ask, nearly three decades on, whether, with respect to the repatriation of what it calls “sacred objects,” NAGPRA has drifted so far from its original intent that it is, like Mother Goose’s Humpty Dumpty, irretrievably broken.[6]

In the Beginning…

NAGPRA did not spring forth fully formed in 1990, like Athena from Zeus’ brow. In politics, as in comedy, timing is critical, and the end of the twentieth century was probably an ideal time to respond to significant shifts within American culture about acceptable attitudes towards tribes and tribal peoples, as well as their material and spiritual heritage.

These shifts were linked to changing perceptions about the legacies wrought by “that extraordinary European conviction of their right to appropriate the world.”[7]  By 1990, questions swirled through public discussion about the approaching commemoration, only two years hence, of Christopher Columbus’ “discovery” of a “New World.”  Just the prospect of Columbus Day 1992 prompted uncomfortable questions about the causes and effects of cultural oppression.[8]  This dynamic mixed with a renewed enthusiasm for ideas about pre-Columbian America as an unspoiled Arcadian set-piece paradise.[9]  To such ethereal notions was added a growing fascination for a kind of homegrown creationism, coupled with a propensity for accepting presentism’s comforting, anti-historical embrace.[10]

If ever an upcoming historical anniversary came loaded to the brim with political and cultural dynamite, this was it.

By the time the Columbian quincentenary was on the near horizon, the dominant culture seemed willing to exhibit increased concern for tribal people’s experiences, interests, and sensibilities.[11]  In 1990, a year after acknowledging this emerging reality by voting for the National Museum of the American Indian Act, Congress passed NAGPRA.

NAGPRA represents a convergence of interests and forces that took decades to gather enough political clout to put a truly transformational law onto the books.  One element at play in this dynamic was the widespread, growing awareness of the depth of suffering tribal peoples experienced when they came up against the forces unleashed by Manifest Destiny.  It became clear, for example, that a significant part of the nation’s legacy included a “massive property transfer” from Native America to the dominant culture, which “invariably included some stolen or improperly acquired Native sacred objects and cultural patrimony.”[12]

Even if those who crafted NAGPRA may not have seen it as a cure-all for perceived ills, they surely hoped to establish broadly-acceptable, easily-understood, unambiguous guidelines for attaining the goal of returning certain types of materials to the groups and individuals to whom the new law mandated they rightfully belonged.  In other words, NAGPRA’s legislative parents anticipated that, as a tool of public policy, this law would answer more questions than it raised when requests for repatriation raised sticky questions about objects of cultural patrimony and sacred objects.

NAGPRA Emerges

Questions about the meaning of the phrase “Native American cultural patrimony” arose during the legislative proceedings that led to NAGPRA’s promulgation.  The term “cultural patrimony” is susceptible to such broad interpretation that one might be excused for wondering if it was even possible to come up with a workable, utilitarian definition.  The U.S. Senate’s Select Committee on Indian Affairs (“Senate Committee”) attempted to clarify matters with respect to NAGPRA’s original intent.

Basically, “cultural patrimony” was intended to refer “only [to] those items that have such great importance to an Indian tribe…that they cannot be conveyed, appropriated or transferred by an individual member.”  The Senate Committee went on to state: “Objects of Native American cultural patrimony would include such items as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian tribe.”[13]

The types of objects specifically mentioned – the wooden carvings of the Zunis’ twin gods of war and the mnemonic strings, or belts, of purple quahog and white channeled whelk shell wampum beads kept by the Iroquois Confederacy – rank as conspicuously important objects of veneration within their own cultural milieus.  One could reasonably conclude that comparable pieces might include the Sacred Buffalo Hat of the Northern Cheyenne, Lakota Sacred White Buffalo Calf Pipe, and Northern Arapaho Flat Pipe.  (Or, in a non-NAGPRA, yet related, context, the Ark of the Covenant.)

When it comes to repatriating objects of cultural patrimony, NAGPRA set the bar at a high level.  So it was fitting that NAGPRA’s initial repatriation notice dealt with a Zuni war god carving, which was declared both a “sacred object” and “object of cultural patrimony.”[14]  Since then, certain types of objects have found themselves occupying something of a fast-track when it comes to NAGPRA repatriations.[15]

It would be difficult to argue repatriations of this type of material are not in accord with the purpose, goals, and spirit of NAGPRA.  But how does one go about assessing the qualitative weight given to claims for less well-known (or even unknown) objects of power and devotion, those NAGPRA calls “sacred objects”?  Therein, as Shakespeare’s Hamlet observed, lies the rub.  The Senate Committee’s observation on this point deserves quoting at length:

Members of the scientific community express concern that if Native Americans are allowed to define terms such a “sacred object” the definition may be so broad as to arguably include any Native American object.  In an effort to respond to this concern, the Committee has carefully considered the issue of defining objects within the context of who may be in the best position to have full access to information regarding whether an object is sacred to a particular tribe….Many tribes have advanced the position that only those who practice a religion or whose tradition it is to engage in a religious practice can define what is sacred to that religion or religious practice.  Some have observed that any definition of a sacred object necessarily lacks the precision that might otherwise characterize legislative definitions, given that the definition of sacred objects will vary according to the tribe or religious practice engaged in by the tribe, and pointing to the difficulty that would arise if one were charged with defining objects that are central to the practice of certain religions, such as defining the Bible or Koran.[16]

The threshold a piece must meet to qualify as a sacred object under NAGPRA is lower than for objects of cultural patrimony.  From NAGPRA’s perspective, “sacred objects” are “specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.”[17]  Thus significant differences obtain between the two categories, although they sometimes overlap.[18]

NAGPRA does not put the onus of improper action on those who caused a sacred object to be removed from the tribal milieu; the removal of an object of cultural patrimony from the tribal world is, however, an illegitimate act.  There is no indication in NAGPRA’s definition of sacred objects, as there is in its definition of objects of cultural patrimony, that such pieces are anything other than “property owned by an individual tribal or organization member.”[19]

NAGPRA does not claim — as it does with objects of cultural patrimony — that sacred objects are necessarily the property of a group, or that sacred objects cannot be personal property.  Objects of cultural patrimony are repatriated to a group because they belong, as they have always belonged, to the group and not to the individual or individuals who caused them to be physically removed from the group’s sphere.  A sacred object, even if the personal property of the individual who caused it to be physically transferred from the tribal world, remains subject to repatriation; not because of the manner in which it left the tribal orbit, but because it is required for the exercise of “traditional Native American religion.”

“Traditional Native American Religion”

This brings up another question: What does NAGPRA mean when it refers to “traditional Native American religions”?

The Senate Committee tried clarifying matters.  With respect to “sacred” (as in “sacred object”), it noted “concern [was] expressed that any object could be imbued with sacredness in the eyes of a Native American, from an ancient pottery shard to an arrowhead.”[20]  However, “The Committee does not intend this result.”[21]

While one might find that an unambiguous statement, some determinations made under NAGPRA appear to undermine this precept.  Examples of these successful, albeit somewhat odd, repatriation claims include the following:

• Early in 1997, a NAGPRA repatriation notice dealt with a buffalo scrotum rattle donated to the South Dakota State Historical Society in 1906 by Mary C. Collins, a Christian missionary who left Illinois in 1875 to work at South Dakota’s Oahe Mission near Cheyenne River Reservation.[22] Ten years later, Collins moved to nearby Standing Rock Reservation, where she remained for a quarter-century.  At some point, Collins “identified the rattle as having belonged to ‘Elk Head, 9^th keeper of the sacred pipe,” meaning the Lakotas’ Sacred White Buffalo Calf Pipe.  Nearly a century after Collins’ donation, Elk Head’s great-great-great grandson, “identified this rattle as a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religion by present-day adherents and [he] has requested the rattle be returned to him as [Elk Head’s] lineal descendent.”
• Three months later, another repatriation notice dealt with materials housed at the Fruitlands Museum in Massachusetts.[23] In this instance, a Lakota spiritual leader identified thirty-five objects – eleven pipes, nine wooden stems, six buckskin pipe bags, a pair of wooden pipe tampers, four rawhide rattles, two eagle bone whistles, and a shield decorated with rawhide webbing, golden eagle feathers, locks of horsehair and grey fur – as “needed by traditional Lakota religious leaders for the practice of traditional Lakota religion by present-day adherents.”  Tribal representatives took the position that all of these objects “were not and are not considered ‘personal property’ but belong to the Lakota People as a whole.”  Then, too, the spiritual leader explained that the objects “spoke to him and asked to be brought back to the Lakota Nation.”  Although the museum contended, “many of these items could have been made for sale,” it agreed “the spirit of [NAGPRA]…takes precedence over concerns for title.”
• A 2011 notice reports that in 1922, Isaac Grasshopper, a Northern Cheyenne veteran of the Battle of the Little Bighorn, traded a “grass seed bag made from a flour sack” and a rawhide rattle decorated with a horsehair tail, eagle feather, and buffalo wool to non-Indian researcher-physician Thomas B. Marquis[24] in return for a used coonskin coat.[25] In 1942, Marquis’ descendants donated a collection of material acquired by their father, including this rattle and bag, to the battlefield.[26]  Isaac Grasshopper’s great-great-grandson asserted these objects “are needed by [him]…and his two sons to continue traditional ceremonies.”  Thus the way was cleared for the rattle and bag Isaac Grasshopper exchanged nearly a century ago to be repatriated.
• In 1957 “the Custer Battlefield Historic Museum Association” — almost certainly the Custer Battlefield Historical & Museum Association,[27] — purchased a trade mirror in a wooden frame decorated with strips of otter fur from Albert Long Jaw, grandson of Long Law, a Northern Cheyenne man.[28] Evidently, Long Jaw used this mirror during the Plains Indian Wars period of the 1870s.  At some point, the association donated the mirror to the institution.  A repatriation notice was issued based upon efforts by Albert Long Jaw’s son to retrieve the mirror his father sold fifty-four years earlier by getting it classified as a sacred object under NAGPRA.

Although a museum may declare its rightful possession of an object, which a claimant asserts is a sacred object, few appear willing to do so. The reasons for this range from agreement with the claim to concern about adverse publicity.  (I once asked a museum representative why his institution agreed to repatriate an object associated with what appeared to be unusually thin evidence offered in support of its sacred quality.  “Too much trouble over nothing very important,” was the explanation.)

Repatriations like those set forth above indicate NAGPRA may have lost the thread in what began as a promisingly strong focus on returning objects as Congress intended .

Retroactive Sacredness?

The Senate Committee also dealt with the question of “Native American artisans [who] create objects which could be construed as falling within the definition of sacred object” and whether the law might “adversely impact the trade in Native American artwork.”[29]  The answer?  “The Committee does not intend the definition of sacred object to include objects which were created for purely a secular purpose, including the sale or trade in Indian art”[30] (emphasis added).

Clear enough, one might think.  But here, too, NAGPRA appears to have left the rails.  A 2010 notice of intent to repatriate seemed to run directly counter to the law’s intent, as articulated by the Senate Committee.[31]  The notice announced plans to transfer 184 “medicine faces” – False Face masks – from the Rochester (New York) Museum & Science Center to the Tonawanda Band of Seneca Indians of New York.  Claimants characterized these pieces were both “sacred objects” and “objects of cultural patrimony.” This, despite the fact Senecas carved the pieces specifically for public exhibition between 1935-1941 while working with the New Deal’s Works Progress Administration.[32]

This apparent shredding of some of NAGPRA’s original intent was not an anomalous occurrence.  Two years later, another notice of intent to repatriate also focused on that museum’s collection of New Deal-era commercially carved masks.[33]  In this instance, the pieces in question consisted of 79 “medicine faces.”  Yet again, the masks were classified under NAGPRA as “sacred objects” and “objects of cultural patrimony,” even though they, too, were replica pieces created expressly for public display.

How an object never intended for ceremonial use, one created for public display by paid artists who belong to a tribe, becomes either a sacred object or object of cultural patrimony remains a mystery.  It says something deeply unsettling about NAGPRA that pieces created as replicas for educational exhibits during the Great Depression can be classified, nearly seven decades later, as “sacred objects” and “objects of cultural patrimony” subject to repatriation. [34]

Part of the problem with NAGPRA concerns its usage of the term “traditional Native American religion.” This may mean a ceremony believed to have been conducted in the same manner for quite some time; present-day observances bearing little resemblance to previous practices; even an attempt to reignite interest in an abandoned, moribund, or otherwise no longer practiced regimen of religious expression.

A standard precept in the study of human societies centers on the idea that no matter how rooted in tradition they appear to be, cultures are not static but dynamic; change over time is a reliable rule of thumb.  Religion, as a part of a society (rather than apart from it) is as susceptible to change as any other cultural component.  Yet for all the changes a religion may undergo, one of its sturdiest pillars typically takes the form of an appeal to the weight of authority and the cloak of legitimacy emanating from revered tradition.

This leads to an important question: “[H]ow can an absent object be central and essential to a tradition without the tradition ending or changing?”  As Greg Johnson, a professor of religious studies at the University of Colorado, has noted, those making claims for objects they regard as sacred objects and/or objects of cultural patrimony “face the narrative impasse of articulating their communities’ present connections to ancient objects in the face of the objects’ absence from the communities.”[35]

Probing deeper, Johnson concluded that the “weight or narrative expectation under NAGPRA is symptomatic of a tension in modern nation-state jurisprudence and constitutionalism with reference to nondominant subjects.”[36]  For a political culture rooted in the kind of modern liberalism born of the eighteenth century Enlightenment, “[r]epatriation laws like NAGPRA cut against the grain…in two ways: first, their primary concern is with ethnic groups rather than with states or individuals, and second, in principle they affirm rather than reject the role of religion (and tradition) as a form of evidence.”[37]  Little wonder Johnson characterized this situation as presenting a “conundrum.”[38]

“…But I Know It When I See It”    

Around NAGPRA’s tenth anniversary, an anthropologist contributing to a website outspokenly critical of NAGPRA,[39] suggested the law “designated” a “Religious Establishment” he found “wonderfully generalized in character,” one with “a depth of history [that] is more likely to be alleged than documentable.”  He concluded “traditional Native American religion” under NAGPRA “is whatever the representative living generations of practitioners say it is.”[40]

That statement’s meaning may be contemplated without undermining the legitimacy of the feeling religious practitioners experience on arriving at the table, temple, arbor, lodge, mountaintop, or any other sacramental arenas or fora.  Indeed, the situation is in some ways reminiscent of U.S. Supreme Court Justice Potter Stewart’s comment in Jacobellis v. Ohio (1964).  Addressing the question of whether Louis Malle’s controversial 1958 film “The Lovers” (Les Amants) was protected speech or non-protected obscenity, Stewart wrote: “I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’]; and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it….”[41]

“But I know it when I see it.”  An interesting concept, although a reasonable person could hardly be faulted for wondering whether it falls a bit short of the desired mark in terms of an etched-in-stone legal concept.

Just how would one go about defining “traditional Native American religion” for purposes of NAGPRA?  Recall that for generations American Indian religions were actively repressed and their adherents persecuted as a matter of course under federal and state law.[42]  As a result, efforts in the latter part of the 20^th century that were designed to rectify the situation have frequently seen lawmakers adopt the same keep-your-distance stance toward tribal religions as they customarily take when dealing with mainstream systems of belief.[43]

“I am struck by how much of the discourse about repatriation is couched in the language of therapeutic identity,” public historian Steve Conn has reflected.[44]  “There are a number of difficulties here,” he noted, “not the least of which is the collision between the world of the personal and psychological and the world of policy and legislation.  After all, can ‘healing’ be mandated by so powerful a body as Congress?  Will repatriation be judged a failure if ‘collective mental health’ among Indians does not improve?”[45]  Indeed, so much did Conn see repatriation as participating “in the whole culture of therapy and ‘self help’ that has become such a major preoccupation of Americans” that he was reminded of “the language of Oprah Winfrey.”[46]  (And, of course, identity politics.)

“Clearly, admitting religious claims as a form of evidence was a profoundly problematic move on the part of legislators,” religious scholar Greg Johnson noted just over a decade ago.  “But they have done so.  Now courts, indigenous representatives, and scholars must attempt to sort out the implications of this move.”[47]

Before NAGPRA’s enactment, Jonathan Haas, then Curator of North American Archaeology at Chicago’s Field Museum of Natural History, participated in discussions among various stakeholders about how the law should be constructed and how it could be made workable.  Haas, who went on to serve as a member of NAGPRA’s Review Committee and assisted in formulating the federal regulations promulgated for the law’s enforcement, provided insight into the legislative process.

“From the museum’s perspective, it was imperative that the language in the law make clear that not all collections were susceptible to repatriation and that it afforded some protection with respect to the property rights of the institutions.  Native Americans, in turn, wanted language that would enable them to effectively seek the return of certain kinds of objects that were considered to be of great spiritual and cultural importance.  The resulting wording in many sections of the final legislation represented a compromise between the various interested parties.  In many cases these compromises were not wholly satisfying to either side.  In most areas the results were considered “workable.”[48]

Haas, who wrote those words just a decade into NAGPRA’s existence, concluded that while “the language of NAGPRA may be murky, patronizing, clumsy and unrealistic, the law in many ways is working.”[49]

Today, looking back over nearly three decades of NAGPRA, I would suggest that sentiment, however accurate it may have been at the time, was too optimistic.

“When I Use a Word, It Means What I Choose It to Mean…”

Like many, I have been privileged, thanks to the generosity of spirit displayed by many Native Americans, to observe tribal ceremonies infused with the profoundly sacred.  I hope most of us are capable of empathizing with and feeling a common human bond with expressions reflecting a belief in something beyond ourselves alone.  This is why I also believe that good, strong cases can and have been made for the repatriation of objects which have no business being in the hands of museums, dealers, or collectors.

Early on, I embraced NAGPRA, believing the standards proclaimed at the outset by its framers established benchmarks, which would be strictly adhered to and rigorously enforced.  I hoped NAGPRA could accomplish much that is good and fair and right.   I believe it has.  I also contend progress down this long, winding road continues.  And yet still, a generation having passed, the final destination is neither guaranteed, truly agreed upon, or even known.

Back in 1998, I was invited by the Sicangu Oyate (Rosebud Sioux Tribe) to participate in a conference on NAGPRA issues related to the repatriation of cultural materials sponsored by the National Park Service in Denver.  A Lakota elder ticked off a lengthy list of the types of pieces he wanted repatriated to his people.  Eventually, he cut to the chase.  “We want everything back,” he said.  Only then, he explained, would his people regain spiritual and physical health.  I do not question that man’s sincerity or the depth of his belief in the need for realizing that hope.  If that is the goal, then let us have that discussion within the context of American law.

Over time, NAGPRA seems to have taken on a confiscatory mien, as demonstrated by enforcers’ acceptance of embarrassingly thin evidence in dealing with some repatriation claims.   I am deeply uncomfortable with and increasingly skeptical about what appears to be an over-broad interpretation of the term “sacred objects” in applying NAGPRA.

Sometimes NAGPRA seems to resemble Pandora’s box – a jar, actually – immortalized by Greek poet Hesiod in a theodicean account he penned nearly three millennia ago.  Upon wedding, Pandora, the first woman created by the gods, received this jar as a gift, along with advice never to open it.  Curiosity got the better of Pandora, who, opening the jar, released all manner of misery upon an unsuspecting world.

Pandora got something of a bad rap in this business, because it is worth recalling that even after loosing so much unpleasantness by opening that jar, she discovered it contained yet one more spirit: Elpis, Hope.  Whether the same can be said for NAGPRA and the apparent trampling of some of the most important understandings arming it with moral legitimacy remains to be seen.

Comparing NAGPRA to Pandora’s box may seem a bit over the top, but, as with that jar’s contents, the unintended side effects of the law’s passage and implementation are profound; just as the questions, arguments, and controversies it unleashed are both legion and unresolved.

I cleave yet again to Humpty Dumpty when considering the degree to which NAGPRA has been pushed beyond its original intent.  Specifically, the situation brings to mind an aphorism Lewis Carroll put into the old egg’s mouth in his 1871 fantasy, Through the Looking-Glass, and What Alice Found There. “When I use a word, it means what I choose it to mean – neither more nor less,” Humpty Dumpty insists to an Alice befuddled by his nonsensicality.[50]

Notes

[1] Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et. seq. [Nov. 16, 1990), hereinafter cited as “NAGPRA.”

[2] Jack F. Trope and Walter R. Echo-Hawk, “The Native American Graves Protection and Repatriation Act:  Background and Legislative History,” in Devon R. Mihesuah ed., The Repatriation Reader:  Who Owns American Indian Remains (Lincoln:  University of Nebraska Press, 20000, 123.

[3] For NAGPRA’s purposes, “museum” means any “institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items.”  NAGPRA.  The Smithsonian Institution, which is covered by the National Museum of the American Indian Act (1989), is an exception.

[4] To assist in this effort, NAGPRA established criminal penalties for anyone who “knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items” obtained in violation of NAGPA.  NAGPRA.

[5] Conclusions are arrived at via a preponderance of evidence standard.  The types of evidence which may be relied upon in examining claims include information obtained from archaeological, anthropological, linguistic, and historical sources as well as oral tradition and “[o]ther relevant evidence or expert opinion.”  Sherry Hutt, Caroline M. Blanco, and Ole Varmeer. Heritage Resources Law: Protecting the Archaeologist and Cultural Environment (New York: Wiley, 1999), 349.

[6] NAGPRA addresses five categories of what it calls “cultural items”: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony.  The focus here is “objects of cultural patrimony” and “sacred objects” categories.  Under NAGPRA, “sacred objects” refers to “specific ceremonial objects, which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day [sic] adherents.  NAGPRA Sec. 2(C).  In order to qualify as “cultural patrimony” an object must have “ongoing historical, traditional, or cultural importance central to the Native American group or culture itself,” as opposed to “property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual…[and which must be] considered inalienable by such Native American group at the time the object was separated from the group.”  NAGPRA, Sec. 2(D).  NAGPRA casts its umbrella over both Native American and Native Hawaiian human remains and cultural materials, although the primary focus has been on matters of concern to the former group.

[7] Inga Clendinnen, Ambivalent Conquests: Maya and Spaniard in Yucatan, 1517-1570 (Cambridge: Cambridge University Press, 1987), xi.

[8] For insight into these currents see Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York: Alfred A. Knopf, 1990).  Historian William H. McNeill reviewed Sale’s across-the-board indictment of Columbus, his culture and time, and found it wanting.  See William H. McNeill, “Debunking Columbus,” The New York Times (Oct. 7, 1990),  https://www.nytimes.com/1990/10/07/books/debunking-columbus. html? Pagewanted =all

[9] The over-the-moon enthusiasm expressed by John Collier, the New Deal’s Commissioner of Bureau of Indian Affairs, for the proto-utopian concept of a “New Red Atlantis” represents a reflection of such yearnings and projections.  Earlier still, consider British poet Alexander Pope’s eighteenth century “Essay on Man,” which may be viewed as Enlightenment reaction to observations political philosopher Thomas Hobbes made about life in the “State of Nature” being “solitary, poor, nasty, brutish and short.”  Of more recent vintage were the rippling effects emanating from the innumerable Mau-Mauing activities by marginalized groups so characteristic of the Sixties.

[10] See George Johnson, “Indian Tribes’ Creationists Thwart Archaeologists,” The New York Times (Oct. 22, 1996),  https://www.nytimes.com/ 1996/10/22/science/indian-tribes-creationists-thwart-archeologists.html, wherein he notes: “Since the repatriation act [NAGPRA] was passed in 1990, American Indian creationism, which rejects the theory of evolution and other scientific explanations of human origins in favor of Indians’ own religious beliefs, has been steadily gaining political momentum.”  Lynn Hunt, then the president of the American Historical Association, took up the subject of presentism in “From the President: Against Presentism,” Perspectives on History, Vol. 40, No. 5 (May 2002), https://www.historians.org/publications-and-directories/perspectives-on-history/may-2002/ against-presentism.  See, also, Daniel Johnson, “Those Who Hate the Past For Being Different,” The Telegraph (Aug. 3, 2002).

[11] Similar examples of movement in the legal arena in response to this paradigm shift include the American Indian Religious Freedom Act of 1978 and the Archaeological Resources Protection Act of 1979.  For repatriation efforts over the years, see C. Timothy McKeown, “Repatriation,” in Handbook of North American Indians, Vol. 2, Indians in Contemporary Society, Garrick Bailey ed. (Washington, D.C.: Smithsonian Press, 2008), 427-437.

[12] “One pattern that defines Indian-white relations in the United States is the one-way transfer of Indian property to non-Indian ownership.  By the 1870s, after most tribes were placed on small reservations, the government’s acquisition of Indian lands had in large part been accomplished.  Thereafter the pattern shifted from real estate to personal and continued until most of the material culture of Native people had been transferred to white hands.  That massive property transfer invariably included some stolen or improperly acquired Native sacred objects and cultural patrimony.” Trope and Echo-Hawk, 128.

[13] NAGPRA Senate Report 101-473 (1990): 8, https://www.nps.gov/nagpra/mandates/us_senate_rpt_9-26-90.htm

[14] “Notice of Intent to Repatriate a Cultural Item in the Possession of the University of Iowa, Museum of Natural History,” Federal Register, Vol. 59, No. 38 (Feb. 25, 1994), https://www.gpo.gov/fdsys/pkg/FR-1994-02-25/html/94-4239.htm

[15] Aside from the aforementioned Zuni war god carvings and Iroquois wampum belts, that list includes Navajo jish, objects associated with Midewiwin ritual, and ceremonial headgear associated with the Pueblos, Apaches, Navajos, and Northwest Coast peoples.

[16] NAGPRA Senate Report, 6-7.

[17] Ibid.

[18] For example, NAGPRA repatriation notices published in the Federal Register from fiscal year 1992 through fiscal year 2011 note 4,332 sacred objects, 964 objects of cultural patrimony, and 1,254 pieces which found a home in both categories.  National NAGPR Program, FY 2011 Final Report For the Period October 1 2010 – September 30, 2011 (National Park Service, U.S. Department of the Interior, National NAGPRA), http://www.nps.gov/nagpra/DOCUMENTS/ Reports/ FY11 ProgramReport.pdf, 16.

[19] “Native American Graves Protection and Repatriation Act Regulations,” 43 CFR, Pt. 10.

[20] NAGPRA Senate Report, 7.

[21] Ibid.  “The term sacred object is an object that was devoted to a traditional religious ceremony or ritual when possessed by a Native American and which has religious significance or function in the continued observance of renewal of such ceremony.  The Committee intends that a sacred object must not only have been used in a Native American religious ceremony but that the object must also have religious significance.  The Committee recognizes that an object such as an altar candle may have a secular function and still be employed in a religious ceremony.  The substitute amendment requires that the primary purpose of the object is that the object must be used in a Native American religious ceremony in order to fall within the protections afforded by the bill.”

[22] “Notice of Intent to Repatriate a Cultural Item in the Possession of the Museum of the South Dakota State Historical Society, Pierre, SD,” Federal Register (Jan. 16, 1997), https://www.gpo.gov/fdsys/pkg/FR-1997-01-16/pdf/97-1067.pdf,

[23] “Notice of Intent to Repatriate Cultural Items from Nebraska and South Dakota in the Possession of the Fruitlands Museums, Harvard, MA” (Mar. 4, 1997), https://www.gpo.gov/fdsys/pkg/FR-1997-03-04/pdf/97-5212.pdf

[24] Marquis was the physician on the Northern Cheyenne Indian Reservation from 1922 to 1923.  Subsequently, and until his death in 1935, he maintained a private practice at Lodge Grass on the adjacent Crow Reservation.  Paul A. Hutton ed., The Custer Reader (Norman: University of Oklahoma Press, 2004), 235.  Marquis is probably best remembered for authoring a number of books dealing with the Cheyennes and Crows as well as the Battle of the Little Bighorn.   These include: (with Thomas H. Leforge) Memoirs of a White Crow Indian (Lincoln: University of Nebraska Press, 1974) and Wooden Leg: A Warrior Who Fought Custer (Lincoln: University of Nebraska Press, 2003).  See also John Woodenlegs and Margot Liberty, A Northern Cheyenne Album: Photographs by Thomas B. Marquis )

[25] “Notice of Intent to Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Little Bighorn National Monument, Crow Agency, MT” (Dec. 23, 2011), https://www.federalregister.gov/documents/2011/12/23/2011-33013/notice-of-intent-to-repatriate-cultural-items-us-department-of-the-interior-national-park-service

[26] A brief description of the Dr. Thomas B. Marquis Collection donated by Minne Ellen Marquis Hastings and Anna Rose Octavia Marquis Heil is in Harry B. Robinson, “The Custer Battlefield Museum,” The Montana Magazine of History, Vol. 2, No. 3 (July 1952), 21.

[27] The organization maintains a website at http://www.custerbattlefield.org/

[28] “Notice of Intent to Repatriate a Cultural Item: U.S. Department of the Interior, National Park Service, Little Bighorn National Monument, Crow Agency, MT” (Dec. 23, 2011), https://www. federalregister.gov/documents/search?conditions%5Bterm%5D=%22albert+long+jaw%22#

[29] NAGPRA Senate Report, 7.

[30] Ibid.

[31] “Notice of Intent to Repatriate Cultural Items: Rochester Museum & Science Center, Rochester, NY” (June 28, 2010),  https://www.federalregister.gov/documents/2010/06/28/2010-15602/notice-of-intent-to-repatriate-cultural-items-rochester-museum-and-science-center-rochester-ny

[32] The museum’s Indian Arts Project was the creation of Arthur C. Parker, the institution’s part-Seneca director.  Between 1935 and 1941, 31 Tonawanda Seneca men and women – joined the first year by 39 residents of the Senecas’ reservation at Cattaraugus – received fifty-cents an hour while creating 6,000 “wood carvings, beaded outfits, silver jewelry and other accessories, baskets, cornhusk dolls, and bottles, as well as more than 200 easel paintings illustrating ceremonies, traditional stories, historic events and daily activities of the people of the Reservation.  They saw themselves as renewers and reclaimers of Seneca traditions and values….Parker hoped that the Indian Arts Project would nurture craftswork that could help the participants continue to earn a living.  Only a few, however, continued with painting or carving that could be sold to collectors.  Their work remains one of the best documented collections of Seneca materials in the world.”  “The Indian Arts Project (1935-1941),” Rochester Museum & Sciences Center (n.d.: Rochester, NY), http://www3.rmsc.org/museum/exhibits/online/lhm/IAPmain.htm.   One of the participants was famed author, mask carver and Cattaraugus native Jesse Cornplanter [1889-1957], who “provided designs and models for false face masks that the other carvers followed.”

[33] “Notice of Intent to Repatriate Cultural Items: Rochester Museum & Science Center, Rochester, NY” (April 2, 2012), https://www.federalregister.gov/documents/2012/04/02/2012-7880/notice-of-intent-to-repatriate-cultural-items-rochester-museum-and-science-center-rochester-ny

[34] The situation at the time the Seneca artisans creation of these objects was markedly different.   “Except for a few traditionalists who objects to the secular production of false face masks, which were normally intended for ceremonial use, the majority of Seneca reportedly saw the project as a great success.” McLarren, 91.

[35] Greg Johnson, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007), 22.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39]“Friends of America’s Past,” https://www.friendsofpast.org/

[40] Gene Galloway, “NAGPRA/News & Comment: More Notes from the Back Seat,” Friends of America’s Past (July 26, 2000), http://www.friendsofpast.org/nagpra/back-seat2.html

[41] Jacobellis v. Ohio, 378 U.S. 184 (1964), FindLaw, http://caselaw.lp.findlaw.com/scripts/ getcase.pl?court=US&vol=378&inbol=184

[42] In 1883 the U.S. government established Court of Indian Offenses to enforce the ban on traditional religious practices, including “the sun dance, scalp dance, or war dance, or any similar feast.  Also criminalized was engaging “in the practices of so-called medicine men” or any other activity which might “keep the Indians of the reservation from adopting and following civilized habits and practices.”  Francis Paul Prucha, ed., Documents of United States Indian Policy, 2^nd ed. (Lincoln: University of Nebraska Press, 1990), 160, 187.  A dozen years later Canada implemented a similar law.  Jacqueline Shea Murphy, The People Have Never Stopped Dancing: Native American Modern Dance Histories (Minneapolis: University of Minnesota Press, 2007), 85-86.  For a discussion of the effects wrought by such restrictions see Kenneth Hayes Lokensgard, Blavkfoot Religion and the Consequences of Cultural Commoditization (Burlington, VT: Ashgate, 2010), especially 123-134.

[43] Take, for example, the American Indian Religious Freedom Act of 1978 (AIRFA), later amended to strengthen provisions dealing with sacred sites and recognize the use of peyote as a sacrament.  American Indian Religious Freedom Act and Amendments, Southeastern Native American Alliance International (SENAAI), updated Dec. 30, 211. http://www.senaahq.bravehost.com/AIRFA/AIRFA1978-and-Amendments.htm

[44] Steven Conn, Do Museums Still Need Objects? (Philadelphia: University of Pennsylvania Press, 2010), 67.

[45] Ibid., 68.

[46] Ibid., 69.

[47] Johnson, 23.

[48] Jonathan Haas, “Sacred Under the Law: Repatriation and Religion under the Native American Graves Protection and Repatriation Act (NAGPRA),” in Tamara L. Brad ed., The Future of the Past: Archaeologists, Native Americans, and Repatriation (New York: Garland, 2001), 117.

[49] Ibid., 120.

[50] Lewis Carroll, in Through the Looking-Glass, and What Alice Found There (1871).  “