Narayan Narasimhan1Narayan Narasimhan is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He thanks Annie Kors, Matthew Makowski, Claire Rice, and the University of Chicago Law Review staff for their hard work on this piece. All errors are his own.
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The Native American Graves Protection and Repatriation Act (NAGPRA) creates a comprehensive federal statutory scheme to protect Native American2The statute defines “Native American” as “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” 25 U.S.C. § 3001(9); see also infra Part I.B. graves and accord human remains and objects of cultural patrimony “dignity and respect.” To further the statute’s objectives, NAGPRA requires both federal agencies and museums to identify Native American human remains and objects of cultural patrimony in their collections and return those remains to either lineal descendants or tribal governments. NAGPRA’s reach extends beyond museum collections, however; the statute also protects undisturbed Native burial sites by strictly regulating both the intentional and inadvertent discovery of human remains.
Scholars have hailed NAGPRA as a premier example of modern human rights legislation. This praise is not unfounded. Since 1990, nearly two hundred thousand remains in museum collections have been reported under NAGPRA, and the federal government has notified tribes of the existence of nearly sixty-nine thousand culturally affiliated human remains.
NAGPRA is nevertheless ambiguous—it does not define what human remains are. Consequently, the statute is unclear on whether its stringent requirements apply to only prehistoric human remains or whether tribes can extend NAGPRA’s strictures to recently interred remains. As a result, neither the statute’s text nor the regulations made pursuant to it3One could argue that the term “person of Native American ancestry” should be read with reference to 43 C.F.R. § 10.2(b)(1) (2015), which states that only lineal descendants who can trace their ancestry to an appropriate “Indian tribe or Native Hawaiian organization” have standing to bring suit. However, this raises more questions than answers—can only human remains with an ascertainable connection to a recognized tribe be the subject of a suit under NAGPRA? I discuss this question in further detail in Part I.C. provide courts with a clear standard by which to evaluate claims made under NAGPRA. This seemingly innocuous ambiguity has produced conflicting standards. One court has suggested that the Act can apply to recently interred human remains, while another has implied that applying NAGPRA to recently interred remains would create an absurd result. And the Ninth Circuit has used textual reasoning to hold that NAGPRA can only apply to human remains with a cultural connection to a “presently existing” tribe.
This Essay contends that NAGPRA’s history, structure, and purpose mandate the Ninth Circuit’s conclusion that the statute extends only to human remains with an ascertainable relationship to a presently existing tribe if there are no identifiable lineal descendants associated with those remains. However, this Essay diverges from the Ninth Circuit’s shaky textual reasoning and instead advances a different rationale for supporting the court’s holding. Specifically, this Essay contends that reading the statute in this way best advances the sepulchral rights4A small yet significant body of literature has developed regarding human remains and any rights associated with those remains. See generally, e.g., Fred O. Smith, Jr., The Constitution After Death, 120 Colum. L. Rev. 1471 (2020); Alix Rogers, Unearthing the Origins of Quasi-Property Status, 72 Hastings L.J. 291 (defining dead bodies as “quasi-property”); Alfred L. Brophy, Grave Matters: The Ancient Rights of the Graveyard, 2006 BYU L. Rev. 1469 (2006) (discussing the common law’s creation of a right to an easement for relatives of a decedent); Alix Rogers, Owning Geronimo But Not Elmer McCurdy: The Unique Property Status of Native American Remains, 60 B.C. L. Rev. 2347 (2019) (advancing the argument that NAGPRA creates a communal property interest in Native remains). of Native American remains by ensuring that tribal governments—those with the best knowledge on the customary burial rights particular to human remains—treat those remains with respect. Moreover, this approach best balances the statute’s tripartite mission of rectifying historical inequities, maintaining scientific progress, and affording Native human remains proper dignity and respect in burial.
The argument proceeds in three Parts. Part I introduces NAGPRA, providing the reasons for its enactment and its statutory structure before discussing relevant ambiguities. Part II analyzes how different courts have approached the statute’s ambiguities and considers the strengths and weaknesses of their reasoning. With this background, Part III proposes that NAGPRA applies only to human remains with an ascertainable connection to a presently existing tribe by introducing the concept of sepulchral rights.
I. Introducing NAGPRA
A. Reasons for NAGPRA’s Enactment
The historical practice of desecrating Native American graves traces the history of the nation itself. Both the Pilgrims and Thomas Jefferson exhumed Native remains without regard.5Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 Ariz. St. L.J. 35, 40 (1992). And the practice of exhuming Native bodies and cultural objects grew as years passed. Eugenicists decapitated heads from Native bodies to prove white superiority and Native inferiority. The federal government played an active role in sanctioning the desecration of these remains. As the government massacred Native warriors in the war for control of the West, it ordered army members to collect Native heads and body parts for display in the Army Medical Museum.6Id. at 40–41. Interest in Native remains reached a fever pitch soon after the Antiquities Act of 1906, where Congress treated Native remains as “archaeological resources” that could be exhumed “for the permanent preservation of the remains in public museums.”7Id. at 42.
Increased attention to the issue of unmarked Native graves and human remains in museums led members of Congress to propose several bills to protect and repatriate Native remains. Hearings and lobbying culminated with the passage of NAGPRA in 1990. The Act had three general goals per its legislative history. First, the Act was designed as civil rights litigation and was meant to address the “civil rights of America’s first citizens.” Second, to stress its authority in enacting the statute, Congress noted that NAGPRA was concomitant with its trust responsibility to Native tribes. Finally, the Act was designed to balance Native rights with scientific interests. To that end, the Act created a comprehensive permit process involving all stakeholders (tribes, scientists, lineal descendants, museums, and the federal government)—a permit process that nearly every stakeholder wholeheartedly endorsed when President George H.W. Bush signed NAGPRA in 1990.
B. NAGPRA’s Statutory Scheme for Human Remains
One can bifurcate NAGPRA into provisions that regulate the repatriation of Native human remains already in museums and provisions that regulate the identification of recently unearthed Native remains. First, NAGPRA requires museums and federal agencies to catalogue human remains in their possession. Institutions must release “culturally affiliated” human remains to an interested tribe that requests them. To prove cultural affiliation, tribes must show “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.” The standard for a tribe to prove cultural affiliation is low; though the Act is unclear on the definition of a “shared group identity,” tribes need only prove that they share a “reasonable” connection to human remains through a preponderance of the evidence standard. Notably, the evidentiary standard for proving cultural affiliation is wide-ranging. Tribes may offer “geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.” Thus, while NAGPRA does balance Native and scientific interests, it tips the scale in favor of tribes; scientific interests only prevail if human remains go unclaimed, and scientists must still consult with Native American groups over the status of those unclaimed remains.
Second, NAGPRA also requires anyone who excavates or removes Native American human remains and cultural items from federal or tribal lands either intentionally or inadvertently to both obtain a permit and consult with relevant tribes. In these instances, NAGPRA establishes a rigid system for repatriation. If someone finds Native American remains on federal tribal lands, those remains belong to the direct lineal descendants of the Native American if ascertainable. If one cannot ascertain the provenance of the remains, the remains will go to either the Indian tribe that controls the land where the remains were discovered or the tribe with the “closest cultural affiliation” to those remains. Scientists may only assert control over excavated human remains after consulting Department of the Interior regulations, Native American groups, and a NAGPRA review committee.
C. Ambiguities in the Statutory Scheme
“Human remains” are not defined in NAGPRA; analyzing the text surrounding the term provides more questions than answers. One could look to the ownership and control scheme in 25 U.S.C. § 3002(a) to determine what types of human remains are covered under the Act. Per the scheme, human remains will go to a tribe if they have some reasonable “cultural affiliation” with those remains. Yet looking to the definition of “cultural affiliation” itself produces an ontological question—what constitutes a “shared group identity”? One could plausibly argue that this term itself should be defined with reference to the Act’s evidentiary standards—thus, the “group identity” of a set of human remains are defined by the cultural and historical significance that current Native descendants or tribes ascribe to those remains.
There are two consequences of this interpretation. First, because the Act relies on a low preponderance of the evidence standard, a tribe could easily assert that a given set of human remains has some “shared group identity” with the tribe as it exists today. To be sure, the Act was designed with tribal interests in mind, and the Supreme Court has held that ambiguous provisions in statutes should be interpreted toward the benefit of a tribe. At the same time, interpreting the Act to consistently favor Indian tribes would render 25 U.S.C. § 3002(b) moot. Put differently, if one interprets NAGPRA to consistently favor Indian tribes in the event of statutory ambiguity, the language of the statute would hinder the ability of scientists to study unascertainable human remains, as NAGPRA’s lower evidentiary standard would allow tribes to show cultural affiliation more easily.
Second, the definition of a “shared group identity” could refer to Indians as recognized tribal entities, or as Native Americans as a cultural group. The former definition seems persuasive if one reads NAGPRA in pari materia with other federal statutes that regulate the conduct of Indians as members of discrete political entities and not as a cultural group. And if Congress has powers under the Indian Commerce Clause to regulate the conduct of Indians as discrete political entities, it would not make sense to extend that power to cultural groups, lest Congress legislate on behalf of a distinct racial, ethnic, or national group. What’s more, the statute clearly defines “Indian tribes” as those tribes “eligible for the special programs and services provided by the United States to Indians because of their status as Indians” and clearly prescribes how Indian tribes engage with the statute’s provisions for repatriation. Thus, one could argue that even though the statute refers consistently to Native Americans, the statute’s reference to the “unique relationship between the Federal Government and Indian tribes” implies that nothing in the Act should be read as expanding Congress’s definition of an Indian and those rights attached to Indians by virtue of their tribal status.
Yet the latter definition is just as persuasive. Note that the definition of “Native American” necessarily expands what cultural artifacts qualify under the statute. Per the statute’s definition, Native American refers not only to a tribe, but also to a “people[ ] or culture that is indigenous to the United States.” Thus, Native American human remains arguably need not be tied to a specific group but instead may be related culturally to a tribe or group. This broader definition makes sense when considering the statute’s purpose—if museums and private individuals desecrated Indian remains because of their cultural status as Native Americans (i.e., their status as non-white individuals) instead of because of their specific tribal affiliation, it would make sense to provide a broader mechanism for Native American descendants and cultural organizations to obtain remains, even without proof of tribal affiliation.
II. Confusion in the Courts
Few courts have considered these interpretive issues directly. Those that have have reached inconsistent results. This Part discusses three approaches. The first approach suggests that NAGPRA applies to all Native remains even if those remains were interred recently or have an unclear historic connection to a tribe. The second approach places a time bar on Native remains, contending that recently interred remains do not fall within the statute’s purview given NAGPRA’s intent and purpose. The third approach, adopted by the Ninth Circuit in Bonnichsen v. United States (9th Cir. 2004), contends that only those Native American remains with an ascertainable connection to a presently existing tribe qualify for the statute’s protections.
A. Broadly Applying NAGPRA
In 2002, the District of South Dakota considered the status of human remains discovered inadvertently on the shore of a lake. The remains, as all parties agreed, were exposed remains that were a part of a cemetery adjacent to a church. The Yankton Sioux Tribe, who filed for repatriation of the remains and an injunction preventing the U.S. Army Corps from raising the water level of the lake, argued that the continued exposure of the remains created standing for the tribe to sue. Further, the tribe filed for injunctive relief under the National Historic Preservation Act (NHPA), arguing that the agency had a statutory responsibility to consider the effect of excavation on the “historic property” of the cemetery, which the NHPA defines as “any prehistoric or historic district, site, building, structure, or object.” The Army Corps moved to dismiss the complaint, arguing that it had satisfied all the statutory requirements for inadvertent discovery permits under NAGPRA. In ruling for the Army Corps, the district court held that the tribe did have standing under NAGPRA, but that the issue presented before the court was not ripe under the NHPA, as the tribe had not exhausted its administrative remedies in appealing to the Secretary of the Interior to make the cemetery a historic site under the NHPA despite the Army Corps’s initial conclusion otherwise.
To be sure, the court never directly considered the question of what human remains are covered under NAGPRA. However, the circumstances surrounding the case could illuminate the court’s definition of human remains generally. The court—and all parties involved—agreed that NAGPRA applied to the bones at issue. What’s more, the bones at issue in the case were from a cemetery that was still in operation when the human remains were inadvertently discovered. While the court assumed (for the sake of a motion to dismiss) that the Sioux Tribe’s claim that the bones were Native American was valid, the court did not consider whether the bones at issue were recently interred or had been buried for some period of time. In doing so, the court implicitly accepted the idea that NAGPRA, at least in theory, can apply not only to ancient human remains with historic value, but also to potentially recently interred remains with no historic value.
B. Limiting NAGPRA to Exclude Recently Interred Remains
In 1999, Norma Rodriguez, a member of the Kickapoo Tribe, was found dead in her home. The Kickapoo subsequently buried her on tribal land. Though the State of Texas wished to perform an autopsy to determine if Rodriguez died under suspicious circumstances, the Kickapoo Tribe argued that an exhumation for an autopsy would violate the tribe’s deeply held religious beliefs that “the scarring to the body caused by an autopsy and the disruption of a grave damages the spirit and can have adverse effects on the decedent’s family.” In ruling for the coroners, the Western District of Texas held that NAGPRA would not apply to Rodriguez’s remains. To support its reasoning, the court looked to NAGPRA’s text and connected the statute’s focus on “cultural items” with the term “human remains.” In doing so, the court reasoned that the “[p]lacement of the term ‘human remains’ within the larger category of ‘cultural items’ thus suggests that NAGPRA was not meant to apply to a recently buried corpse which is of no particular cultural or anthropological interest, but which is sought by state authorities for the purposes of conducting an inquest.” To further its conclusion, the court made a policy argument; it would be unreasonable to think that NAGPRA—a statute meant to protect human remains with cultural significance—would supersede a state’s right to investigate suspected criminal activity. Indeed, the court reasoned that “the Tribe’s interpretation of NAGPRA would permit any person to evade an inquest by obtaining a corpse by nefarious means and burying it on tribal lands.”
In Thorpe v. Borough of Thorpe (3d Cir. 2014), the Third Circuit considered a similar issue, though it did not address the issue of the definition of human remains directly. In this case, the court evaluated whether the descendants of Jim Thorpe, a member of the Sac Nation, could use NAGPRA to force the Borough of Jim Thorpe in Pennsylvania to repatriate his remains to tribal land in Oklahoma, despite a testamentary wish to the contrary. Though the Third Circuit considered the question of whether the borough was a “museum” per the Act, it reasoned that reading the statute to permit the excavation of recently interred human remains with clear testamentary obligations would run afoul of the statute’s purpose to return remains that museums had “collected and studied for archaeological or historical purposes.” In this way, the court distinguished between Native American remains with no archaeological value and remains that were buried in accordance with a Native American’s final wishes. A contrary interpretation, reasoned the court, would produce an “absurd result” at odds with the statute’s intention.
C. Limiting NAGPRA to Exclude Remains Without a “Presently Existing” Connection to a Tribe
The Ninth Circuit has provided the clearest statement on what remains fall under NAGPRA’s purview. In Bonnichsen, the court evaluated whether various Native tribes residing in the Pacific Northwest could assert a cognizable claim under NAGPRA to rebury a 9200-year-old set of prehistoric human remains. The scientific value of the remains prompted scientists to ask to study the remains, despite the tribal claimant’s demands that the remains be returned for immediate burial on religious and social grounds. After the Secretary of the Department of the Interior determined that the remains were Native American using a preponderance of the evidence standard, the scientists appealed the Secretary’s decision in federal district and appellate court.
In ruling for the plaintiffs, the court held that determining whether human remains fall under the statute requires a two-part analysis. First, a court would have to determine whether human remains were Native American to assess whether they would fall under NAGPRA’s scope. Then, the court would consider whether those remains would “bear some relationship to a presently existing tribe, people, or culture to be considered Native American.” Reading NAGPRA’s text, the court held that Congress’s use of the present tense was significant when it wrote that human remains would fall under the statute’s purview if they were “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” As the Ninth Circuit reasoned, this use of the present tense related to Congress’s goal of “respect[ing] the burial traditions of modern-day American Indians” and “protect[ing] the dignity of the human body after death.” “Congress’s purposes,” held the court, “would not be served by requiring the transfer to modern American Indians of human remains that bear no relationship to them.” In short, because Congress intended to only cover those human remains with an existing tribal connection to protect the dignity of Native American remains, the Court reasoned that protecting human remains without an ascertainable association to a tribe would unduly broaden the statute.
III. Bonnicshen’s Interpretation of NAGPRA is Preferable
Critics have assailed the Ninth Circuit’s decision in Bonnichsen on numerous grounds—namely, that the court’s decision not to weigh oral evidence from tribes was a mistake. Nevertheless, the argument from these critics may be misplaced. It is certainly true that NAGPRA’s evidentiary standard for proving cultural affiliation is a low preponderance of the evidence standard which includes oral evidence. But in this case, the tribes failed to provide enough evidence of cultural similarities between the human remains at issue and modern Indians. Indeed, a litany of experts found that the empirical historical record would preclude establishing cultural similarities between any Indian tribe that asserted ownership over the remains and the remains themselves. Identifying a nine thousand-year-old set of remains with a single tribe would be a difficult task, and weighing competing mythological claims from tribes would not be a task that a court could easily accomplish—whose cultural mythology would prevail?
A stronger argument against the Ninth Circuit’s reasoning is its excessive reliance on the use of the present tense to support its holding. The court’s reliance on the present tense led it to conclude offhand that the statute was inherently unambiguous—thus, the court never had to invoke any canons of Indian law that favor Indian tribes in the event of ambiguity. Yet, as mentioned in Part I.C, the statute’s definition of human remains is sufficiently ambiguous that resolving the issue by looking to the plain text of NAGPRA merely produces more questions than answers.
This is not to suggest that the Ninth Circuit’s logic was wholly unpersuasive. The court’s focus on present tense language could instead be framed as but one supportive argument for the broader proposition that, if NAGPRA was “intended to protect the dignity of the human body after death,” then only those with the proper knowledge to instantiate that dignity to human remains could assert ownership over those remains. The court referenced this idea in passing, noting that focusing on the present tense language of the Act would fall in line with the its intent to ensure that lineal descendants and current tribes could take care of human remains in a manner that matches Indian customs and religious traditions.
Such an interpretive approach would not only support the statute’s intent but would also be a pragmatic interpretation of it. NAGPRA instantiates a particular form of communal property ownership over human remains—thus, if remains are unascertainable, a tribe will collectively assert title over them. As Alix Rogers notes, this creates practical benefits. For the government, ensuring that there is a clear relationship to a tribe—a collection of individuals—avoids the economic and bureaucratic costs associated with identifying all the individual lineal descendants of an unidentified set of human remains. Further, tribes can stomach the costs of litigating NAGPRA claims and have the existing institutional experience to work with the Department of the Interior and the government more broadly—they are repeat players. What’s more, the government can more effectively oversee the successful repatriation of human remains and ensure that NAGPRA’s purpose and goals are met by making sure remains only go to ascertainable, recognized tribes. In contrast, the oversight costs associated with having a more individuated process could vastly increase the amount of litigation and present more thorny interpretive issues for courts.
Moreover, the Ninth Circuit’s interpretive approach makes NAGPRA’s substance fall more in line with other statutes that emphasize the tribe as a steward for Indian-related issues. The Indian Child Welfare Act, for example, similarly aims to rectify a horrific wrong committed against Indian families by privileging the interests of a tribe over state or non-Indian interests. Framing NAGPRA in this manner therefore creates a framework that is in line with existing statutes that regulate Indian family affairs. Consequently, a court interpreting NAGPRA to privilege the rights of presently existing tribes would not overstep the judicial role by implying that NAGPRA acts as a radical departure from existing policy concerning tribes.
Finally, the Ninth Circuit’s approach avoids the thorny question of whether Indians are considered a race or a political group. Broadening who may claim these sets of human remains to include Native Americans as a racial, cultural, or ethnic group would run contrary to the Supreme Court’s decision in Morton v. Mancari (1974), which held that Congressional policies affecting Indians are subject to rational basis review instead of strict scrutiny, as Indians are a political, not racial, group. Mancari has enabled Congress to create legislation that specifically addresses Indian issues and singles out Indians for preferential treatment; treating Native Americans as a racial group by broadening the statute’s scope would subject NAGPRA to a higher level of judicial scrutiny, thereby running the risk of the Court holding the entire statute invalid as an example of preferential treatment based on race. Cabining human remains to include only those remains with an ascertainable relationship to a tribe—a political unit—avoids that constitutional issue.
One could argue as a policy matter that reading “human remains” to mean only those human remains with a presently existing connection to a tribe would leave out unrecognized tribes. The Tap Pilam tribe was denied the ability to repatriate remains from the Alamo for that reason. Yet NAGPRA is concerned not just with repatriation to any tribe, but repatriation in accordance with specific cultural customs. While the Supreme Court has blurred the lines between the rights granted to recognized and unrecognized tribes in recent years, granting all Native American groups the right to file suit to repatriate remains would unduly broaden the statute’s repatriation scheme that privileges lineal descendants and tribes with clearly recognized cultural customs.
NAGPRA was designed to honor and respect human remains and correct for a stunning and pervasive historical inequity. This Essay contends that the best way to honor those remains under NAGPRA is by only allowing human remains to be repatriated if a recognized tribe can establish that they have a presently existing connection with those remains. Such an approach ensures that the most appropriate cultural customs attach to human remains, guaranteeing that every set of human remains repatriated to a tribe is buried with the dignity it deserves.
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Narayan Narasimhan is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He thanks Annie Kors, Matthew Makowski, Claire Rice, and the University of Chicago Law Review staff for their hard work on this piece. All errors are his own.