Peter d'Errico: The 'nasty' loophole in NAGPRA
"When Congress passed the Native American Graves and Repatriation Act in 1990, four crucial definitions were enacted into law: (1) “‘burial site’ means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human remains are deposited;” (2) “‘cultural affiliation’ means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group;” (3) “‘Indian tribe’ means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village. …, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;” and (4) “‘Native American’ means of, or relating to, a tribe, people, or culture that is indigenous to the United States.”

Despite the title of the act, it was obvious from the definitions that Native American graves were not protected. By its own terms, NAGPRA only covered the graves of “Indian tribes,” and “Indian tribes” only refers to indigenous peoples who are “recognized” by the United States.

Once again, the United States found a way to divide Native nations. Human remains that couldn’t be traced to a “recognized tribe” are defined as “unidentifiable,” regardless of the fact that oral tradition, ethnology, history, anthropology, archaeology, and other scientific and traditional evidence might clearly point to a specific Native American origin. In NAGPRA, “identity” is shorthand for “recognized.”

As Margaret Bruchac and Michael Brown put it in “Imperialism, Art and Restitution” (2006), “In NAGPRA-speak, the term ‘Native American’ encompasses all of the continent’s indigenous peoples, but only federally-recognized ‘tribes’ can claim to be ‘culturally affiliated’ and ‘culturally identified’ with museum collections. … The terminology of the NAGPRA legislation has had an insidious effect on inter-tribal discourse regarding sovereignty.”"

Get the Story:
Peter d'Errico: NAGPRA’s nasty loophole (Indian Country Today 8/23)

Related Stories:
Peter d'Errico: Stealing and stalling from Indians (7/28)
Peter d'Errico: Excising conquest from the law (6/26)
Peter d'Errico: The answer is indigenous sovereignty (5/29)