Looking at the Numbers: Cultural Affiliation & NAGPRA

by Anne Amati and Ellyn DeMuynck

Introduction

A key concept in the Native American Graves Protection and Repatriation Act (NAGPRA) is cultural affiliation. It is defined as “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.”i Congress intended the requirement for cultural affiliation “to ensure that the claimant has a reasonable connection with the materials.”ii

In order for a museum to make a cultural affiliation determination, all of the following requirements must be met: (1) an identifiable earlier group (or groups); (2) an identifiable present-day federally recognized Indian tribe (or tribes); and (3) a shared group identity that can be reasonably traced between the present-day Indian tribe(s) and the earlier group(s).iii Cultural affiliation should not be precluded because of gaps in the record and it is not a scientific determination. New scientific studies or research to determine cultural affiliation is neither required nor authorized by NAGPRA.iv

Since 2010, NAGPRA regulations have provided a process for museums and institutions to return Native American human remains that could not be culturally affiliated to tribes with aboriginal land ties. Many museums have used these regulations (43 CFR §10.11) to repatriate all of the Native American human remains in their collections (as of September 2020, 28% of museums subject to NAGPRA have resolved the regulatory process for all Native American human remains under their control).v Some museums have been able to make a determination of cultural affiliation after consulting with Indian Tribes. If the human remains have vague or no provenience associated with them, museums may consult with the appropriate parties and develop an agreed upon disposition plan that must be approved by the Secretary of the Interior (43 CFR §10.16). Even with all these options for moving forward, so many Native American ancestors remain pending in the NAGPRA process.

Looking at the Numbers

The National NAGPRA Program collects data on NAGPRA compliance activities. As of September 2020, about 42% (83,076) of the 199,933 human remains reported under NAGPRA have completed the regulatory process. For the human remains that are still pending in the regulatory process, 95% (111,083) have no cultural affiliation.vi The remaining 5% (5,774) are culturally affiliated in a NAGPRA inventory but have not yet been published in a Notice of Inventory Completion.

Why are there so many human remains considered pending under NAGPRA with no cultural affiliation? Is it because those human remains have no information associated with them? Not in looking at the numbers.

94% of pending human remains with no cultural affiliation have geographic information associated with them (Figure 1).vii

73% of pending human remains with no cultural affiliation have culture or age information associated with them (Figure 2).

It seems likely that there is enough information for museums to consult with Native American Tribes regarding these human remains. And consultation might lead to more museums making cultural affiliation determinations.

What else could looking at the numbers reveal?

If we break the data up by region, we see that institutions in the Southeast region have by far the most Native Ancestors with no cultural affiliation still pending in the NAGPRA process (Figure 3).

If we focus on those human remains that have completed the NAGPRA process that at one time had no cultural affiliation, we see that there are three options for completing the process: 1) human remains that were subsequently culturally affiliated; 2) human remains that were returned to tribes with aboriginal land ties (10.11); and 3) human remains with vague or no provenience who were returned following approval from the Secretary of the Interior (10.16) (Figure 4).

Human remains with associated funerary objects (but lacking cultural affiliation) are more likely to complete the NAGPRA process under the 10.11 regulations or found to be culturally affiliated (Figure 5). Human remains with no associated funerary objects (and lacking cultural affiliation) are more likely to complete the NAGPRA process under the 10.16 regulations (needing approval from the Secretary of the Interior). This suggests that there is a correlation between presence of associated funerary objects and more robust geographic information.

Conclusion

By looking at the numbers, the data shows four key points of information.

1) Any assumption that ancestral remains considered pending in the NAGPRA process are lacking associated information is erroneous. It is rare that ancestral remains reported under NAGPRA have no associated information whatsoever.

2) Institutions in different regions are working under different circumstances. A solid understanding of what makes regional situations unique and creating support within regions may help institutions create successful strategies for repatriation. 

3) If a lack of information is not a barrier to repatriation, what is? A robust answer to this question will require further research with individual institutions and into regional histories.

4) Is there a correlation between the presence of associated funerary objects and disposition of human remains? Given what we know about split collections, could reuniting ancestors and their objects help in identifying cultural affiliation?

We hope shining the spotlight on this will encourage institutions to see the information available to them as a path to move forward, rather than feeling stuck because they don’t have more information.

i 25 U.S.C. 3001, §2 (2)
ii US Senate Report 101-473, page 6. https://www.nps.gov/subjects/nagpra/upload/SR101-473.pdf
iii 43 CFR §10.14 (c)
iv Anne Amati and Melanie O’Brien, “Implementing NAGPRA,” in Museum Registration Methods, ed. John E. Simmons and Toni M. Kiser (Lanham: Rowman & Littlefield, 2020), 500.
v FY2020  National NAGPRA Program Report https://www.nps.gov/subjects/nagpra/reports.htm
vi Completed the regulatory process means that the Native American Human Remains have been reported in a NAGPRA Inventory and have been published in a Notice of Inventory Completion. Pending in the regulatory process means that the Native American Human Remains have been reported in a NAGPRA Inventory but not yet published in a Notice of Inventory Completion.
vii All data from this point forward is from September 2019.