Katie and Steve speak with colleague Eden Burgess about the Native American Graves Protection and Repatriation Act (NAGPRA), its history, purpose, and requirements to repatriate cultural property and human remains to Native American tribes and Native Hawaiian Organizations, as well as new regulations that are leading major museums to remove or close exhibitions of Native American and Hawaiian objects while taking action to implement NAGPRA in consultation with tribes that have ownership claims.
Resources
https://www.nps.gov/subjects/nagpra/frequently-asked-questions.htm
https://www.nytimes.com/2024/01/26/arts/design/american-museum-of-natural-history-nagpra.html
https://www.wbur.org/news/2024/02/01/native-american-objects-pulled-nagpra
https://www.voanews.com/a/native-american-news-roundup-february-4-10-2024-/7481001.html
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Hi Katie, how are you?
Katie Wilson-Milne: Hi Steve, I’m good. We’re gonna talk about a completely new topic today, which is exciting.
Steve Schindler: Really? I love talking about new topics. Ask me what I’ve been doing.
Katie Wilson-Milne: Steve, what have you been doing?
Steve Schindler: So I was in Madrid.
Katie Wilson-Milne: Oh great, once again.
Steve Schindler: And I was back in Madrid being invited by the ADA, which is this great organization there that is a membership organization with people in various aspects of the art world– museums, collectors, lawyers, and other interested people. And this time I spoke about fair use in the United States post-Warhol, and we’ve obviously talked about that case. I was joined by a Spanish colleague, Blanca Cortés, a leading IP lawyer in Madrid, to talk about the concept of fair use under Spanish and European law. So it was it was a great success. It was really fun.
Katie Wilson-Milne: How interesting. You’ve become a celebrity in Madrid. This is your second year.
Steve Schindler: I’m still not recognized on the street.
Katie Wilson-Milne: By the art law community, you might be.
Steve Schindler: No, not quite. Anyway, we digress.
Katie Wilson-Milne: Well, that’s very cool.
Steve Schindler: Let’s talk about NAGPRA.
Katie Wilson-Milne: Alright, so today we’re gonna talk about NAGPRA, which stands for the Native American Graves Protection and Repatriation Act that we’ve had in the United States since 1990. We’re gonna talk about it, because it’s interesting, it touches on cultural property issues, which we’ve talked about before, in a different context in our own community– our own indigenous communities, and also because there have been new rules and regulations just promulgated that have caused some would say dramatic actions at some of the nation’s leading museums. And so we want to talk about that with our esteemed guest and colleague, Eden Burgess.
Steve Schindler: Eden Burgess, look at that. And here she is.
Katie Wilson-Milne: Eden, why don’t you tell us a little bit about your practice?
Eden Burgess: Oh sure.
Katie Wilson-Milne: Just to introduce yourself.
Eden Burgess: I’m so excited. I’ve heard these and now I get to sit here and see the sausage be made. So I’ve been doing art and cultural heritage law my whole career, so 20-some years. I won’t give you the exact number. And I’ve worked with tribes on various issues as well as museums, nonprofits, foreign nations, big collectors, galleries, really all different types of elements of the art law world I’ve worked with. And it’s been really fun and exciting to do that as a career. I feel very fortunate.
Steve Schindler: And where do you practice?
Eden Burgess Where do I practice? Oh, with you guys. I’m at Schindler Cohen & Hochman, and I joined about almost two years ago and it’s been great to get to know New York better and get to know you all better.
Katie Wilson-Milne: Yeah, so Eden is our resident cultural property broadly but also NAGPRA expert, so it’s perfect that she’s joining us on the podcast.
Steve Schindler: It is, because we’re not experts.
Katie Wilson-Milne: We’re not. We’re not. We know enough to be dangerous but not too dangerous. Alright, so Eden, let’s start at the beginning. What is NAGPRA?
Eden Burgess: So as you said, Katie, NAGPRA was passed in 1990, and the idea of it was to force slash encourage institutions in the United States that were holding human remains and funerary objects and cultural patrimony objects to get those repatriated to the tribes. And let me pause there for a minute. People in our world sometimes interchange restitution, repatriation, so just briefly to pause there. Repatriation is used for a nation, and a tribe is a nation under US law, whereas restitution is to a family or an institution or a collector.
Katie Wilson-Milne: That’s very helpful.
Eden Burgess: Yeah, just to pause on that. So that was the original goal of NAGPRA. The two main sort of themes of the law are disclosure and consultation. So the museums were required, or all the holding institutions, were required to do inventories or summaries of all the objects that they had that were covered by the law and disclose those and also to publish federal register notices before they did any actual repatriating. And then the consultation element is really the most important, which is that the tribes are supposed to have a voice in this process, and that is the key element of NAGPRA. Rather than tribes having to beg museums to do the right thing or beg for things to be repatriated, consultation was an obligation of the holding institutions.
Steve Schindler: Okay.
Katie Wilson-Milne: And what does that look like in practice?
Eden Burgess: Well, it differs, you know, we have 574 federally recognized tribes in the United States.
Katie Wilson-Milne: And this also includes Native Hawaiian Organizations?
Eden Burgess: And Native Hawaiian Organizations, yes. Yeah, I’ll use tribes more generally, but that’s an important point because it is mentioned separately in the law. So it depends on the tribe. Some tribes have different priorities at different times. During COVID, it was extremely difficult because, as we all know, that the Native American community was hit particularly hard. So their staff was not around as much and they had health obligations, medical care, things that just had to take priority over NAGPRA issues and other repatriation matters. So it can take a long time. The institutions have to figure out who to consult with. So sometimes notices go out to a very large set of tribes who they think might be interested, and then they can narrow that down depending on who wants to participate. But it does look different for every tribe.
Now that we have the Zoom world, it’s a little easier, because people can work around any schedule and they don’t have to travel and that’s better for the tribes from a resource point of view. And so there can be various meetings, maybe more than one or two. They might visit and view the objects and then work with the institution to figure out what to do.
Katie Wilson-Milne: So since 1990, I guess the law applies to federal agencies and U.S. museums, right? Not the Smithsonian, but…
Eden Burgess: Not the Smithsonian. And it’s more than institutions. For example, a lot of colleges and universities– you may have read this in some of the news coverage recently– have collections because their archaeology or anthropology departments receive donations or they’ve been doing their own projects, sometimes for many decades or longer. So if that university receives any federal funds, it is covered by the law.
Steve Schindler: Which is probably all of them. I mean–
Eden Burgess: I would think so.
Katie Wilson-Milne: Right. And so all of those entities, federal agencies, institutions receiving federal funding fall under this law. And since 1990, they’ve had to inventory all of their Native American tribe-related collection materials, make those public, and then reach out to tribes to discuss what they’re doing with those objects. Is that right?
Eden Burgess: That’s the ultimate goal. And just to narrow down a little bit on the kinds of objects that are covered, funerary objects, sacred objects, cultural patrimony objects, and human remains are all covered. There’s a…
Katie Wilson-Milne: Broad.
Eden Burgess: It’s very broad. And there’s a general misconception that it only covers literally bones, and that’s not at all the case.
Steve Schindler: Ok. Maybe just describe a little bit or explain a little bit about what some of those other categories are, in broad terms.
Eden Burgess: So a funerary object is an object that was buried with a person or in a graveyard or in a burial mound of some kind. So it’s associated with a particular burial site or even a person. We see this with Egyptian history a lot–
Steve Schindler: Sure
Eden Burgess: –which everyone knows better, I think. And then sacred objects are related to the tribe’s religious practices and things like that. And then cultural patrimony is extremely broad. It seems to me, unless we’re talking about arrowheads that are, you know, everywhere, that almost any object that a museum would have that’s that quality could arguably be a cultural patrimony object. I don’t know if that’s ever been tested, but that’s my understanding of that category.
Steve Schindler: So that would be very broad. I mean, does it have to go back any period of time, or is it any cultural patrimony object, you know, from 20 years, from the beginning of time until in the present, or is there some age requirement attached to that?
Eden Burgess: No, it goes back. I mean, the issue with these tribal objects is that if they tried to put a time stamp on it, it would miss so many of the most important objects that were torn away from these tribes way back in the 1700s or even earlier.
Steve Schindler: But it can be contemporary then, right? Yes.
Eden Burgess: Yes.
Katie Wilson-Milne: Yes, although collecting practices have much improved.
Eden Burgess: Indeed.
Steve Schindler: Yes. No, no, that’s of course–
Katie Wilson-Milne: Probably less legal risk.
Steve Schindler: Also less likely to be in a museum, I suspect.
Katie Wilson-Milne: Let’s talk a little bit more about the rights, and I don’t even know if that’s the right term, but the sort of priority NAGPRA gives to tribes and, I guess, Native American individuals in terms of what they can do under the statute, what they have a right to demand, and, I guess, any causes of action it might give them. I mean, how much does this empower actual Native American communities versus just put obligations on our institutions to do something?
Eden Burgess: Well, we’ll talk about the new regs in a few minutes. That changed the situation, I think, quite a lot. But, you know, tribes can request a consultation or they can demand repatriation, which I’ve seen several times, and then the institution is obligated to consult. As I mentioned before, they’re obligated to engage in that conversation. Consultation is the key. So that is the most important empowerment that tribes have under NAGPRA. The challenges have been that the law has some loopholes, some squirrely definitions, and, you know, the law has been in place for over 30 years, and there’s still tens of thousands of– and this is just human remains– tens of thousands of human remains that are still being held by U.S. institutions have not been repatriated. It’s possible they also haven’t been inventoried, but they certainly haven’t been repatriated.
Katie Wilson-Milne: And just to be clear, a big part of NAGPRA was the objective that these objects be actually repatriated not just that they be inventoried and that tribes be consulted. The whole goal was that these objects go back, right–
Eden Burgess: Yes.
Karie Wilson-Milne: –to their original owners or the entities and elements.
Eden Burgess: Lineal descendants or the tribe, yes.
Karie Wilson-Milne: And to what extent was that actually happening since 1990? I mean, do we see a lot of divestment of these objects from institutions or what we call deaccessioning?
Eden Burgess: There have been some. There are institutions that have done it partially or smaller ones that have done it totally, but there’s a lot of pushback from, in some cases, the collecting community, in some cases the scientific community. They want these objects for study and research. So there has been a lot of pushback. So some have gone back, but not nearly the number that I think Congress intended when they passed this law.
Steve Schindler: Is there a difference in the level of pushback between cultural patrimony objects and human remains? I mean, museums normally, I don’t think, display human remains anymore, and so they’re just being stored somewhere. And I can only imagine that the, with respect to those, that the museums, if they had the resources, would want to repatriate them as opposed to maybe cultural objects which might be, have artistic and other historical importance. Has there been a difference to your knowledge?
Eden Burgess: Well, human remains certainly make the headlines a lot more than other objects. I, that’s not necessarily reflective of tribal priorities depending on which tribe you’re talking about. There was a couple stories that came out about the French auction a year or two ago where there were American tribal objects, but they were sacred objects. You know, the mask had real meaning to the tribe in a cultural, religious, and historic way. So that was a high priority for them. So I think it depends on the tribes, but human remains certainly make the news more than other objects.
Katie Wilson-Milne: We’ve talked about this in the context of the Nazi era and the art that changed hands in Europe during that time. How, you know, there’ve been these ethical codes for decades. There’s sort of been this understanding and moral agreement that these objects, if they were looted, need to be returned, but no resources were put in place, or virtually no resources were put in place by any of our key institutions to make that happen. So great that we say that, but there was no staff to investigate the provenance of any of these objects, no one to evaluate claims, so nothing happened. And I’m wondering if that, it seems to be that that’s the same situation with NAGPRA, that, okay, we have these obligations, but we have no expertise on staff to be able to effectuate them. I mean, is that accurate?
Eden Burgess: Yes, yes. It’s, I mean, to me, I think, with respect to the timeline, that’s a major issue. So we haven’t gotten to the new regs yet, but there’s a five-year deadline. We’ll just, I’ll say that for now. And that’s a significant problem, and there were a lot of comments received by the Park Service about that being too short. And the other issue, of course, as you said, is resources. Some major institutions have doubled their repatriation staff since the new regs were first made available in December, but not every institution has the ability to do that. So it can be difficult.
Katie Wilson-Milne: It’s a theme of our podcast, since our first podcast about the Berkshire Museum, that we like to remind our listeners that most art institutions are tiny institutions in places where wealth has long shifted and changed and left. They have very strapped resources, you know, limited donor pools, limited budgets. And so, as important as priorities may be, it is also just a reality that these kinds of regulations require resources and expertise to effectuate them–
Eden Burgess: Yes.
Katie Wilson-Milne: –Which the federal government is not providing these institutions.
Eden Burgess: Right, there are some NAGPRA grants available to institutions, but it’s not that much money and there’s not that many grants, so it’s not a huge– doesn’t make a huge dent. I mean, Senator Schatz from Hawaii gave a speech in the Senate recently, last week or the week before, and he named several leading institutions that have some of the largest collections of objects that need to be repatriated or human remains. I mean, Harvard is one, at the risk of annoying the lawyer audience. They do have a, you know, they have a lot of resources, and they have a lot of objects that need to be addressed.
Katie Wilson-Milne: And other large universities–
Eden Burgess: Yes, yes.
Katie Wilson-Milne: –Were on that list.
Steve Schindler: Yes, which are not short on resources. You’ve made reference a couple of times to new regulations in a five-year period, but we haven’t really talked about those, because the NAGPRA came into effect, as you said, in 1990. So, for all of these years, this is now almost 35 years later.
Katie Wilson-Milne: Yeah.
Steve Schindler: It seems like very little, or relatively little has happened.
Katie Wilson-Milne: There was no time frame for most of that time, right? There was no…
Eden Burgess: There was a deadline.
Katie Wilson-Milne: Oh, there was.
Eden Burgess: It sort of went by. I mean, there has not been a lot of enforcement, I would say. I was reading a report today. This report says that there’s only been $60,000 in fines collected over the entire life of NAGPRA. So it’s not…
Katie Wilson-Milne: Which is minuscule.
Eden Burgess: Which is minuscule. And it’s, so it’s not enforced in a consistent or aggressive way.
Katie Wilson-Milne: And you said the National Park Service administers NAGPRA?
Eden Burgess: Yes.
Katie Wilson-Milne: It’s funny, you know, we think of the National Park Service as taking care of Yosemite or, you know, whatever beautiful parks we visit and not administering a federal regime with civil and criminal penalties. So how, if you know, how does that actually work?
Eden Burgess: Well, within the Park Service, there’s a NAGPRA program. So those are the folks that really take care of the day-to-day. They want institutions to voluntarily participate, you know, even though the law is an obligation. So they offer advice on the phone, you can call them up, but as far as enforcement goes, my understanding, because there’s so little data on that point, is that tribes typically will send a complaint letter to the NAGPRA office. And they can investigate, they can decline to investigate, they can investigate and then drop it, or they can negotiate with the institution to pay a fine or to do something in a better way. But that’s about the extent of the enforcement that’s occurred so far.
Steve Schindler: What are the potential penalties if you’re a museum and you don’t comply? Is that, I mean, are we talking about money? You mentioned criminal enforcement.
Eden Burgess: There’s a possibility of criminal enforcement and I think there’s a very small number of cases. And as I recall, it typically involves quote-unquote treasure hunters who go to federal lands and they know where there’s a burial site, even though it’s been, you know, protected by the Park Service or indicated do not enter, and they will sometimes take things anyway. So you have a theft, you know, criminal complaint, and then you can also charge them under NAGPRA.
Steve Schindler: I see.
Katie Wilson-Milne: I think it’s worth noting here that this whole scheme is a burden to the very people it’s trying to protect, right?
Eden Burgess: Yes.
Katie Wilson-Milne: It’s, so there’s no independent, in practically anyway, there’s no independent federal enforcement. The tribes themselves have to somehow, with extremely limited resources or resources they don’t have, monitor what’s happening at our nation’s biggest institutions and smallest institutions and then report that to the Parks Department to do anything. I mean, that seems unworkable.
Eden Burgess: Yes, that’s been one of the tribes’ complaints is that they have this enormous burden. I mean, unfortunately, I don’t know if that can really be avoided because they’re the ones with the knowledge and the information and the dedication to the objects or the remains.
Steve Schindler: Right, but I mean it is, when you think about it, there are 500 plus recognized tribes, as you said, and I don’t know how many cultural institutions that we’re talking about, but that would mean that a particular tribe would have to have knowledge that its objects would be at a, one of, you know, hundreds of possible institutions.
Katie Wilson-Milne: Yeah, and not its objects, like, from today. Like, it wouldn’t even know that these objects were associated with their tribe potentially a hundred years ago.
Steve Schindler: Right, So, I mean, I assume by now, the law was passed in 1990, you know, if a tribe might have some collected knowledge about where some of its objects went, but I think it would take a huge amount of investigation to try to figure that out.
Eden Burgess: Well, the law is designed to put the burden on the holding institutions.
Katie Wilson-Milne: To report.
Eden Burgess: To report. To disclose, report, and to do their own research and say, oh, I think this is this tribe, that tribe, and to approach the tribe. Functionally, that doesn’t always happen. And the tribes are concerned with the new regs. They’ll get a flood of new requests. And if it takes them six months or even a year or longer to respond, will the museum give up and move on? You know, so there’s a lot of, as we talked about before, concerns about limited resources.
Katie Wilson-Milne: Alright. So there are these new regulations that do attempt to address some of these issues seriously. And alright, so talk to us maybe about why the buildup to these new regs, why are they happening now, if you have any thoughts on that, and of course, what they are.
Eden Burgess: Well, President Biden made it one of his priorities to address certain problems that the Native American communities were having. And so updating the NAGPRA regulations was one of the things that he was pushing. So that’s the timing. There were some changes that are significant. I mean, the publication is about 100 pages, so you could read it on your own time.
Katie Wilson-Milne: Listeners, read it on your own time.
Steve Schindler: We’ll post it.
Katie Wilson-Milne: We’ll post the link.
Eden Burgess: You know, they got over, I don’t know, almost 2,000 comments, I think, from any number of institutions, including, you know, on both sides of the issue, whether some of the changes were good or not. So there are several significant changes. One is the five-year deadline that we talked about, which I think is going to cause some problems, maybe they’ll amend it. Originally, the proposal was two years, and all the comments encouraged the rulemakers to change it to five years.
Katie Wilson-Milne: And what is the deadline for again?
Eden Burgess: It’s to consult with tribes and update the inventories. So you can imagine that seems, I mean, to me, it seems very short, particularly if you’re one of the big ones, and you have thousands and thousands of objects.
Katie Wilson-Milne: Right.
Steve Schindler: Right. Although theoretically, you’ve been doing this since 1990.
Eden Burgess: Ah, theoretically.
Katie Wilson-Milne: Except you haven’t.
Steve Schindler: And you haven’t been getting a lot of new objects. So from one perspective, you can see five years seems like, oh, well, that seems reasonable, given the fact that you’ve had 30 years to do this.
Katie Wilson-Milne: In my mind, and I think some of the press has commented on this, the harder thing is the consultation, right? That the museums have to figure out what modern tribe is associated with each potentially ancient object, find their contact information, the right representative, reach out to them, have that person engage in an actual dialogue productively.
Steve Schindler: Right.
Katie Wilson-Milne: That actually does seem, if not far-fetched, extremely burdensome.
Eden Burgess: Yes.
Katie Wilson-Milne: And timing that’s not within the museum’s control, right? They’re not…
Eden Burgess: That’s right. The tribe is supposed to govern and steer the process. So if they get, you know, 50 consultation requests in six months, it’s just impossible. Even a big company would have trouble dealing with that.
Katie Wilson-Milne: Right.
Steve Schindler: Right, right.
Eden Burgess: And they’ve got to use their own resources. So it can be difficult.
Katie Wilson-Milne: Alright. What are the other changes?
Eden Burgess: Yes, so the reason that it’s been in the news mostly is, I’m sure you’ve seen it, a lot of these museums are covering up displays of Native American objects or removing them and in some way. And the reason for that is that the new regs say that none of these objects can be exhibited, accessed or researched unless there’s free prior and informed consent by the tribe.
Katie Wilson-Milne: That seems huge.
Steve Schindler: Yeah.
Eden Burgess: Yes.
Steve Schindler: I mean, it’s also, I wonder, it’s not in the statute, right? It’s not really talking about, you know, the power of regulators and some of the issues around that these days. But it does seem like a pretty…
Katie Wilson-Milne: Specific.
Steve Schindler: A leap, you know, from the inventorying and consultation to not displaying without some kind of informed consent.
Eden Burgess: So one of the big problems with the law so far has been consultation is a vague term, right? Do you send a letter and then, oh, well. So the consultation is supposed to be meaningful. So under meaningful consultation, it seems that rather than letting the institution tread water for several years and just leave everything out, that they’d be required to prove that they’ve had free prior and informed consent. So I think that’s the reason that they adopted that language.
Katie Wilson-Milne: But let’s, I mean, this is what this means in practice. So let’s just take our own, the Museum of Natural History that’s been in the news on this. They have more than a thousand, maybe two thousand feet of floor space devoted to education and history about our Native American tribes. And that is all now covered up and inaccessible to the public. So it’s a huge part of the museum. It’s huge both in terms of floor space, but also significant in terms of the educational mission of the museum, right? Which is to cover this important segment of our population and our cultural history. Now they cannot display, use or allow people to research those objects at all until they get permission from the right tribal community for each particular object.
Eden Burgess: Yes.
Katie Wilson-Milne: I mean, I guess there’s a lot to say about that one, it’s just the burden, as we’ve been talking about, and just how real is burden on both the museum side, but also the tribal side to devote resources to that exchange in a meaningful way. But it also, this comes up in other contexts, means that for people, let’s say students visiting that museum, they’re no longer going to be exposed to this important part of the museum that’s hopefully educating them from a historical and ethical perspective about this important part of our history. And that seems regrettable. Maybe–
Eden Burgess: Yeah, I mean, I’m not a tribal member myself, of course, but I think that tribes have a real problem with being used in that way.
Katie Wilson-Milne: Yeah.
Eden Burgess: I mean, there’s lots of ways to educate people these days, especially, you know, with technology and 3D printing and on and on. You guys probably know more about that than I do. But there’s a lot of options. So particularly with funereal objects and, of course, human remains.
Katie Wilson-Milne: Which are not on display.
Eden Burgess: Which are, as far as I know– I mean, that’s certainly been the trend for many years. But there are funerary objects. There are objects that certain tribes believe are imbued with the soul of a person who owned it. And those are very significant issues.
Katie Wilson-Milne: Yeah.
Steve Schindler: Right.
Eden Burgess: And that, I think, is the reason that these regs have been adopted, is to try to respect those values more.
Steve Schindler: Right. No, that makes sense. I mean, I think it’s a little hard because, you know, I think in terms of human remains, funerary objects, that all makes a certain amount of sense. But then when you get to that last category of cultural patrimony, which we discussed is arguably very broad. And it’s hard to know kind of where it begins and where it ends.
Katie Wilson-Milne: Right. And those could be things like– I mean, these are just random examples– there’s so much more. But it could be objects of clothing. It could be home utensils or baskets or cookware or jewelry or, you know, could be a whole host of things that sort of explain a culture to some extent. Yeah.
Eden Burgess: Yes.
Katie Wilson-Milne: What’s your impression about how institutions are responding to these new regulations?
Eden Burgess: Well, as we talked about, covering things up and taking them off of display has really been the most public reaction. I have read and heard that particularly big institutions have been meeting privately for months, because they knew these regs were coming out to figure out how they were going to deal with it, whether they needed more staff, what they could afford to do. So those discussions and meetings have been going on for some time. And there have been some public statements that, you know, we’re going to be revamping our repatriation effort. We’re going to be complying with the law. We’re going to be moving this forward, even from institutions that have been reticent to give up objects. I want to mention two other changes under the regs, if that’s okay. So there used to be a category, culturally unidentifiable human remains.That is no longer a category. Tribes have pointed to several examples where they felt the institution was using that category as a shield not to return things.
Katie Wilson-Milne: And back up, what did that category mean in the law previously?
Eden Burgess: So just that, you know, tribal history is mostly not written. And because of colonialization, a lot of evidence and burial sites and things like that were wiped out or removed completely. So the museums and institutions can often say, well, we know where it’s from geographically, but many different tribes over the decades or centuries had lived there or moved back and forth. And the tribes felt that it was really an excuse and a shield to return things rather than a legitimate concern about where the object or remains should go.
Katie Wilson-Milne: So, under NAGPRA, there was a statutory category called culturally unidentifiable. That meant that if a museum determined that the object was culturally unidentifiable, they were kind of excused from following the rest of the requirements of NAGPRA.
Eden Burgess: Yeah. I mean, the categories for human remains in particular. So that’s an important thing to understand. But that is no longer a recognized classification of human remains that might be held by an institution.
Katie Wilson-Milne: And that means that all of our institutions subject to NAGPRA can now no longer use the unidentifiability of human remains as an excuse not to find and contact and consult with the tribe.
Eden Burgess: Or an excuse not to repatriate, which is really the problem.
Steve Schindler: Yeah, right.
Eden Burgess: So that’s the purpose of the publication requirement. You know, as I said, it’s publicity, consulting, Federal Register, is that if some other tribe says, wait a minute, we think that might be ours, an institution’s intent to repatriate is published before it takes place. So that invites and allows tribes that may have a claim as well to participate in the consultation process.
Katie Wilson-Milne: And what if the institution has absolutely no idea how to associate certain objects or remains that it has? You know, it’s looked at all the documentation it can find, I guess, absent calling the representative of every single recognized tribe and assuming they have some knowledge about this object. What are they supposed to do?
Eden Burgess: Well, I’m not a curator, mind you, but my understanding is that’s relatively unusual that they would at least have a geography or if they know who donated or gifted it or sold it to the museum, they know where that person generally worked or traveled or what their story was.
Katie Wilson-Milne: That’s a good point.
Eden Burgess: So I would hope there’s at least some information. But the last thing I wanted to mention about the new regs addresses that problem. Previously, oral histories were not accepted by many institutions as legitimate evidence. And that’s a big problem, as I mentioned a minute ago, with the loss of so much of their history, and not having really written history, at least the way that we think about it in the modern day, was a big handicap for them. So Native American knowledge is now supposed to be treated as legitimate history. So that helps a lot, because a lot of tribal elders will say, Oh, my grandmother told me about this burial site, or something like that. So it’s an important element of tribal history that’s now going to be accepted. Wow.
Steve Schindler: I’m still at a loss. And it strikes me again, that, you know, when it comes to human remains, why museums would want to hold on to those remains? I mean, why?
Eden Burgess: Well, it’s less museums and more universities, where that issue comes up, because archaeologists and anthropologists, I mean, let’s be honest, can learn a lot from looking at those bones, about diet, or geography, or DNA ages, you know, how old did people live to at that time? How was their health? But you know, there’s certain tests where some of the bone has to be literally destroyed, it has to be turned to powder. I don’t know how much, but too much for the tribes. They don’t appreciate that. So it’s really a lot of university collections where that’s sort of the argument or the bigger issue.
Katie Wilson-Milne: Yeah. And to your point, I mean, there are legitimate collections of human remains. As you said, this is how we learn about, there’s studies in the paper all the time that we learn about genes that connect with certain diseases and diets and how people died. And I think that’s an accepted part of scientific research. But in this category, it’s always been particularly fraught and problematic because of the violent way these remains were extricated and then possessed by, you know, these non-native institutions. So, I mean, I assume even that’s kind of one of the main concerns is that the way these remains and objects were obtained by these institutions, or more accurately, their donors, is itself problematic.
Eden Burgess: Yes.
Katie Wilson-Milne: It’s both that the objects have cultural and religious significance themselves. And so regardless of how they changed hands, they’re needed in these communities because of that significance. But also the history of how they changed hands is so demeaning and degrading.
Eden Burgess: Yes, exactly.
Katie Wilson-Milne: That has to be addressed.
Eden Burgess: Yes, and as we know, it goes beyond Native American backgrounds. I mean, slaves were– their bodies were used for testing before and after death without their permission. And even later, people with mental issues, or it goes beyond, probably there’s categories I don’t even know about yet, but there’s a long history when it comes to human remains of not worrying about the human and only about the remains.
Katie Wilson-Milne: Yeah. And to your point, Steve, it could be true, and I think we’ve seen some of this in the coverage of NAGPRA, but also other human remains stories that have come out the last few years, that institutions don’t necessarily want to have them, but they’re also not on display. They’re kind of in storage facilities.
Steve Schindler: Oh, sure.
Katie Wilson-Milne: It’s not front of mind to do the work and research it takes and figure out, for example, in the example of American slaves, you know, what current community would be the appropriate receiver of those remains? And would they want them? Or is it proper that they just stay at an institution where they can be protected? I mean, it’s not clear at all, right, how to handle that. So–
Eden Burgess: That’s a whole separate podcast.
Katie Wilson-Milne: A whole separate podcast.
Eden Burgess: Because there’s been a lot of discussion on that point.
Katie Wilson-Milne: A lot. Yeah. But in the case of these Native American remains where we have this much clearer code and obligation put on museums to figure this out, you know, that is happening against the backdrop of how all these institutions collected these types of objects, used them for research, didn’t think too much about where they came from.
Steve Schindler: And it comes back around to resources again, as we always say, because all of these institutions from large to small are pressed in their own way for resources and for staffing. And so if there’s, if there are objects that are tucked away in storage somewhere, it’s relatively easy to just not bother with them, right? Because they have plenty of other things that they’re dealing with, you know, that may be more urgent.
Katie Wilson-Milne: Right. Especially if you’re a universal museum, you’re dealing with, we’ve covered all these issues on the podcast, but you’re dealing with provenance questions about, you know, the colonial history in Europe. You’re dealing with issues of Nazi looting during World War II. You’re dealing with NAGPRA. You’re, there’s a whole host of–
Eden Burgess: Certainly, yes.
Katie Wilson-Milne: –Of provenance issues you need deep specialization on, not to mention the normal day-to-day, you know, challenges of running a museum and the normal current legal issues that might come up. So this goes through some discussion in Congress. I mean, you mentioned the senator from Hawaii. Do you have any thoughts on how this was received or, I mean, we live in an incredibly fractious political moment.
Steve Schindler: We do.
Katie Wilson-Milne: That’s kind of insulting to even mention, right?
Steve Schindler: Well, no, I just, I did have this image when you talked about the speech on the Senate floor, whether anyone was there, you know, given, given what has been going on over the last several weeks.
Katie Wilson-Milne: Yeah, yeah. Although this, this may be one of those things that was not, not contentious. But anyway, so we’re just curious about the political run up to these regulations and, you know, what, if any opposition or, you know, political discussion occurred around them.
Eden Burgess: Right. Well, so it didn’t go through Congress, obviously, because it’s just regulation. So it was through the National Park Service and those processes. You know, Senator Schatz being from Hawaii, Native Hawaiian Organizations are a big part of his constituency, and the new regs had just come into effect. So he has many reasons to speak firmly on this topic. They had a hearing the week or two before, so he was following up on that when he gave the speech. And, you know, as I said, there’s almost 100 pages of, of the regs, which is not just the regs, it’s also all the comments and the responses. So there’s a number of things that people complained about. Resources we talked about is one, the timeline we talked about is another one. And then the science point of view where there’s supposed to be archaeological or anthropological value to keeping some of this stuff, especially the remains, because that’s what they typically want to test and look at. So there are a number of grounds for opposition, but NAGPRA has been overdue for this kind of change for a while. And frankly, the law is not that well written in the first place. So as much as regs can help fix those gaps or close those gaps and fix those problems, I think it’s a useful tool.
Katie Wilson Milne: Also, even creating any more specific expectations on the parties involved, even if they’re imperfect is helpful, right? Because, as you said, it wasn’t working to have these broad goals and aspirations about consultation and repatriation without any specific administrative or operational requirements that would explain when that had to happen and what the penalties were, really. So, you know, even if imperfect, these regs do seem to be moving NAGPRA in a more specific direction where some concrete action will be taken. Now, we’ll see over the years whether all these covered displays just remain covered because no progress is made towards consultation or repatriation and these museums are still these repositories for these objects that aren’t going anywhere and are not on display. You know, that’s obviously not the goal. Or if it really does prompt equal dialogue between tribes and institutions that does lead to repatriation and permissions and input on how these objects are displayed and teach us.
Steve Schindler: Right.
Eden Burgess: Right, right. The regs have only been in place for about a month. So those are all excellent questions that will take years to answer. I have read in some of the coverage in the news that tribal leaders say they already feel sort of a shift just in the tenor of some of the conversations they’re having. And, you know, it being on the news, I mean, there’s, I came up with a quick list of over a dozen museums that have already acted in some way to be in compliance. So that’s a good beginning. And as you said, Katie, we’ll have to wait and see whether the change is really substantive or not.
Steve Schindler: Right. And whether there can be meaningful enforcement, I think, ultimately, if that doesn’t happen.
Eden Burgess: Yes. I mean, my hope is that with institutions starting, you know, there’s been a big in the past five, seven years, we’ve all seen it here at the firm in understanding what colonialism really did and repatriating those kinds of objects overseas or to wherever.
Steve Schindler: Right.
Eden Burgess: So this is part of that trend. So I hope that institutions recognize that they’re not exempt from that and that participating in an active, intentional way is in the long term best interest of the institution.
Katie Wilson-Milne: Yeah, you’re right. I mean, I think although they’re very different scenarios, the sort of increased urgency, even on European museums to return objects that were taken or purchased during the colonial period and this still increasing momentum about Nazi-era art, it’s all reinforcing these other areas, including NAGPRA, that there’s this idea that repatriation and restitution are important priorities and that in all these different areas, institutions should be paying attention to them. So I think they’re all helping the other kind of gain public support.
Eden Burgess: Yes, I agree.
Katie Wilson-Milne: I agree. I was struck, and again, just lip service, but I was struck that in the press about the NAGPRA regs that it did seem at least the major institutions that were covered in the press did seem to uniformly support the purpose of the regulations, even if they commented that they weren’t sure how it was going to work out. They weren’t particularly critical.
Eden Burgess: I agree. I agree.
Steve Schindler: And that was interesting to me. And there’s no, to your knowledge, in this partisan era that we’re living in, highly partisan era, is there a political opposition to this at all? Or is it just merely stakeholders who have different kind of perspectives as to the burdens and how to comply with them?
Eden Burgess: It seems to be primarily stakeholders. As I said, either from the science point of view or the cultural heritage point of view, other than someone like, you know, Schatz from Hawaii or the Alaskan contingent, it’s not necessarily very high priority for a lot of lawmakers. I mean, some states have quite a lot of tribes. I think Alaska has the most, but, you know, California, Arizona. So there are some political interests there. But that’s another issue that tribes have been fighting against for decades, which is trying to get lawmakers to accept their sovereignty, to understand what sovereignty means for tribes, and to respect the role that that sovereignty plays in a tribal U.S. government or whatever government agency relationship. So it’s been a struggle.
Katie Wilson-Milne: Well, thank you, Eden.
Steve Schindler: Thank you.
Eden Burgess: Thank you. That was fun to talk about. And keep watching the news because we’ll have to see how things progress.
Katie Wilson-Milne: Yeah.
Steve Schindler: Alright. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler bringing you The Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.