Stephanie Nepper

The first time Jordan Dresser saw his people’s sacred artifacts was when he was 27 years old and had traveled over 1,230 miles from his reservation to the Field Museum of Chicago.[1] There, the collection of hundreds of Northern Arapaho Tribe artifacts was kept in the Chicago museum’s basement storage in various brown boxes, marked haphazardly with Sharpie labels. Dresser and his Tribe Elders held their sacred headdresses, beaded bags, and arrows. They told stories of how their people used them and what they meant to their tribe. Dresser reserved a small, futile hope that the museum would honor their visit by returning the items to their tribe, but the items were returned to the brown cardboard boxes and shelved back in the basement. Upon leaving the museum, Dresser remarked, “The museum wanted [us] to see the objects and provide context for them, but did not want to give them back.”[2]

The law of discovery, and its close friend colonialism, took over America with pillaging and looting under the guise of exploration as early as the 1700s. While the colonizers ventured into westward expansion, they not only took land, but also sacred items belonging to Native Americans: arrows, pipes, ceremonial regalia, feathers, tools, ceramics, clothing, drums, baskets, art—anything the colonizers wanted, they took.[3] As westward expansion quickly devolved into the removal era, Native Americans faced the collapse of their societal economy and were forced to survive by trading, selling their cultural belongings, and were subjected to the mercy of the American government.[4] Private collectors greedily took their objects, conserving the very culture the federal government and its European supporters were trying to destroy. Throughout the early westward expansion of the 1800s, there were no treaties or acts that protected Native American people, land, cultural belongings, or their gravesites and human remains.

Finally, well into the era of allotment—while Native Americans lost most of their tribal land in governmental reduction process—the 1906 Antiquities Act (“The Act”) was eventually passed. The Act prohibited the destruction of any historic or prehistoric ruin or monument on land controlled by the federal government, which includes tribal reservation land.[5] However, the Act failed to define key phrases, including “ruin,” “monument,” and “object of antiquity,” leaving the protection of Indian artifacts in an indistinct area.[6]

In 1979, Congress addressed this issue with the Archaeological Resources Protection Act (“ARPA”), which replaced the Act by prohibiting the excavation and trafficking of any archaeological resources.[7] ARPA broadened the protection of archaeological objects and required permits to excavate Indian lands. [8] However, ARPA only considers an object’s removal a violation if it is accompanied by an illegal act.[9] As a result, many items and artifacts taken from federal or Indian lands and sold legally do not fall under ARPA’s umbrella.[10]

Ultimately, in 1990, the Native American Graves Protection and Repatriation Act (“NAGPRA”) was enacted and applied to all cultural items discovered on federal or tribal lands.[11] The Native American Graves Protection and Repatriation Act seeks to return cultural objects, including human remains, funerary objects, sacred objects, and objects of cultural patrimony, to their rightful tribal origins. The Act is an ambitious sweeping provision that seeks to regulate tribes, scientists, lineal descendants, museums, and the federal government over any culturally affiliated item or Native human remains.[12] While Congress likely grouped cultural artifacts under NAGPRA in order to consider funerary objects and items of that context, the application of NAGPRA mainly applies to gravesites and human remains.

Unfortunately, NAGPRA has fallen short of its potential as a strong legal basis for repatriation, as it puts the burden squarely back into the tribes, requiring Native Americans to hire lawyers, historians, and anthropologists to prove and provide evidence of affiliation. Although the Act intended to lean in favor of the tribes, the burden is still on the tribes to prove their connection and cultural affiliation with objects. The Act requires tribes to show “that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present-day Indian tribe” and limits tribes that are not federally recognized from bringing forth eligible claims.[13]

Modern repatriation faces an uphill battle with applications like those faced by the Northern Arapaho Tribe, as systemic racism toward Native Americans is often positioned as a fight to research and advance scientific measures.[14] Even as recently as 2017, scientists have fought to retain Native American cultural objects and human remains to analyze ancient DNA and lifestyles.[15] Further, museums and scientific centers harbor a naïve and biased belief that Native Americans are not capable of taking care of their own remains or cultural artifacts.[16] Today, as the United States Congress attempts to navigate the federal government’s missteps with Native Americans, the burden continues to reside on tribal communities to negotiate, compromise, and fight for their own money, education, land, and even their own culture.

Thirty years after the Native American Graves Protection and Repatriation Act was established, the Act still has not succeeded in its ten-year estimate for all objects and human remains to be returned.[17] For Jordan Dresser, regaining the Northern Arapaho Tribe artifacts was an eighty-year plight his tribe faced.[18] In 2024, the Field Museum in Chicago finally repatriated its collection of sacred items to the Northern Arapaho Tribal Historic Preservation Office.[19] Tribe elder Marian Scott observed, “Every time we opened a box and we [saw] those things that were in there, I could actually feel those people who they belonged to… They’re here now. They’re back home.”[20] Hundreds of thousands of cultural artifacts continue to belong to museums, despite the Native American Graves Protection and Repatriation Act and its efforts.[21] If those artifacts could speak, would they call those museums home?

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[1] What Was Ours (Alpheus Media and Vision Maker Media 2017); see also What Was Ours Viewer Discussion Guide (Apr. 4, 2017) https://visionmakermedia.org/wp-content/uploads/2020/09/What-Was-Ours-Discussion-Guide.pdf; see also Hannah Haberman, ‘History in the making’: Long-sought collection comes home to the Northern Arapaho Tribe, WY. Pub. Radio (Oct. 25, 2024) https://www.wyomingpublicmedia.org/open-spaces/2024-10-25/history-in-the-making-long-sought-collection-comes-home-to-the-northern-arapaho-tribe.

[2] Id.

[3] National Museum of the American Indian, Smithsonian (2024) https://americanindian.si.edu/explore/collections/object-collections.

[4] Id.

[5] Marilyn Phelan, A History and Analysis of Laws Protecting Native American Cultures, 45 Tulsa L. Rev. 45, 48 (2009).

[6] Id. at 49.

[7] Archeological Resources Protection Act, Pub. L. No. 96-95, §2, 93 Stat. 721.

[8] 16 U.S.C. § 470b(b).

[9] Id.

[10] Kate Fitz Gibbon, A Primer: NAGPRA, ARPA, and the Antiquities Act, Cultural Property News (Dec. 19, 2018) https://culturalpropertynews.org/a-primer-nagpra-arpa-and-the-antiquities-act/.

[11] 43 C.F.R. § 10 (2012).

[12] Narayan Narasimhan, Defining the Scope of Burial Rights Under the Native American Graves Protection and Repatriation Act, U. Chi. L.R. (2023) https://lawreview.uchicago.edu/online-archive/defining-scope-burial-rights-under-native-american-graves-protection-and.

[13] 25 U.S.C. § 3001.

[14] Tasneem Raja, A Long, Complicated Battle Over 9,000-Year-Old Bones Is Finally Over, Nat. Pub. Radio (May 5, 2016) https://www.npr.org/sections/codeswitch/2016/05/05/476631934/a-long-complicated-battle-over-9-000-year-old-bones-is-finally-over.

[15] One example is the discovery of the Kennewick Man, a skeleton of Native American DNA believed to be over 9,000 years old. Time magazine argued in favor of the scientific possession, stating, “scientists have only found about 50 skeletons of such antiquity…[this] can add crucial insight into the ongoing mystery of who first colonized the New World,” (apparently even scientific breakthroughs are only important in America if it’s related to property and possession!) See Michael D. Lemonick & Andrew Dorfman, Who Were the First Americans? TIME (Mar. 13, 2006) https://content.time.com/time/classroom/glenfall2006/pdfs/who_were_the_first_americans.pdf.

[16] What Was Ours supra note 1.

[17] Corrie Day, A Balancing Act: Addressing the History and Examining the Changes of NAGPRA and its Regulations, Neb. L.R. 25 (Sept. 24, 2024) https://lawreview.unl.edu/balancing-act-addressing-history-and-examining-changes-nagpra-and-its-regulations/, see also Sarah Harding, Justifying Repatriation of Native American Cultural Property, 72 Indiana L.J. 724, (1997) https://ilj.law.indiana.edu/articles/72/72_3_Harding.pdf.

[18] Billy Arnold, Hundreds of Northern Arapaho sacred objects returned, Jackson Hole News & Guide (Oct. 18, 2024) https://www.newslj.com/hundreds-northern-arapaho-sacred-objects-returned#:~:text=The%20tribe%20has%20successfully%20repatriated,items%20from%20the%20Catholic%20Church.

[19] Id.

[20] Hannah Habermann, ‘History in the making’: Long-sought collection comes home to the Northern Arapaho Tribe, Wyoming Public Radio (Oct. 25, 2024), https://www.wyomingpublicmedia.org/open-spaces/2024-10-25/history-in-the-making-long-sought-collection-comes-home-to-the-northern-arapaho-tribe.

[21] Logan Jaffe, Mary Hudetz, & Ash Ngu, The Remains of Thousands of Native Americans Were Returned to Tribes This Year, ProPublica (Dec. 26, 2023), https://www.propublica.org/article/repatriation-progress-in-2023#:~:text=At%20the%20start%20of%202023,has%20dropped%20to%20about%2097%2C000.