REGINA BARBER: This is Science Friday. I’m Regina Barber.

JOHN DANKOSKY: And I’m John Dankosky. In 1990, the US passed a groundbreaking human rights policy. It was designed to spur museums, universities, and federal agencies to return Native American human remains and cultural items back to the tribes they were stolen from.

It’s called the Native American Graves Protection and Repatriation Act, known as NAGPRA. And NAGPRA held a lot of promise. But now, some 33 years later, more than 110,000 Native American, Hawaiian, and Alaskan human remains are still held up in research institutions. So why, decades later, have so many places failed to return them? That’s the focus of a new story by ProPublica.

ProPublica reporter Mary Hudetz worked on this. She’s based in Albuquerque, New Mexico. She’s also a member of the Crow tribe in Montana and the former president of the Native American Journalists Association. Mary, thanks, so much for this reporting. And Welcome to Science Friday.

MARY HUDETZ: Thank you for having me.

JOHN DANKOSKY: So let’s start at the beginning here. How exactly did thousands of human remains end up in museums in the first place?

MARY HUDETZ: The answer goes into history, into this country’s history. In the 1800s, museums in the United States began to collect in large amounts. There weren’t a lot of museums back then.

But the earliest ones– American Museum of Natural History, Peabody Museum of Archaeology and Ethnology– began campaigns to collect and excavate from Indigenous burial sites. Over time, I think many other institutions followed suit. Our data shows that there actually 600 institutions that reported holding human remains across the US.

JOHN DANKOSKY: So just to be clear, when you’re talking about tracking human remains, you’re also looking at cultural items that have been looted as well and some items that were used in funerals. So we’re talking about human remains, but also other items that are important to Native American tribes.

MARY HUDETZ: Correct. NAGPRA, as it’s called now, really refers to human remains taken from Native American gravesites as well as items that people may have buried with the deceased. In addition, NAGPRA also applies to many sacred objects and items of cultural patrimony.

These would be items that a tribe believes belongs to its entire people. It’s public property. And therefore, no one person could have sold it or allowed for it to be taken. But certainly, NAGPRA the law is the clearest about reporting human remains and funerary items. And so that’s where a lot of our reporting lies because the data was a lot more detailed.

JOHN DANKOSKY: Walk me through how repatriation of these items exactly works. Do the tribes have to make a claim?

MARY HUDETZ: Typically, yes. In 1990, Congress passed this law, and it set out a pretty clear and simple mandate for institutions across the US to review their holdings. It gave most institutions five years. Some of the biggest institutions got 10 years.

And so they went through their collections, determined what came from Native American gravesites, which ancestral remains are holding or those of Native Americans, and then required those institutions to report them. By reporting them, then it allowed for tribes to review what institutions had and to make claims. Institutions also had to tell tribes what they had, for instance, if they had remains from the Plains of the United States. They would tell tribes in that region what had come from there. The law also required consultation with tribes.

JOHN DANKOSKY: And so for Native American tribes that are making claims, I can only imagine there’s an enormous differential in power in their ability to go ahead and do this. If you’re talking about a Harvard or a Yale, they have almost unlimited money to spend. And most of the tribes that are making these claims don’t.

MARY HUDETZ: Yeah. So we’ve seen a lot in NAGPRA work of tribes that are very active in this space and tribes that may not have the resources or the capacity to be as proactive in making claims. But yeah, tribes have talked about generally across all institutions the amount of effort that it requires to repatriate.

The cost is immense. If the tribe is in New Mexico where I am, they may have to make multiple trips across country to review collections, to have meetings. And it gets harder if they feel that an institution is resistant to their claims or even rejects their claims.

JOHN DANKOSKY: So NAGPRA was designed to get these institutions to return these stolen human remains. It was supposed to be done in about 10 years. And that would have been the year 2000, right? That’s a while ago. It’s now 2023. What exactly went wrong?

MARY HUDETZ: Yeah, so the Congressional Budget Office guessed it would be about a decade or even less. There’s been some criticism that Congress, the federal government, has not dedicated enough money to this process. They did not fully understand just how much it would begin to cost institutions as well as tribes. But also, I think that there was a resistance to NAGPRA that’s been documented. A lot of institutions didn’t want it to be passed.

And then within the law, which originally had been presented as a compromise between institutions and tribes, at least among Native people, there’s a feeling that maybe the law started to, at least initially from the outset, favored institutions a bit more, gave them the final say and whether they could repatriate. And then there was also what has now been called a loophole in the law that institutions took advantage of, which is called the Culturally Unidentifiable loophole.

And what that means is that institution when an institution declares that remains cannot be affiliated with a tribe or therefore culturally unidentifiable, that means that they cannot decide which tribe to repatriate to or that the human remains and the objects cannot be affiliated to any modern-day tribe. That can be a little offensive, at least to some tribes because I think a lot of tribes will argue that they know where they came from. They know their history. Especially if they’ve made a claim, they feel that that’s almost a rejection of their ties to the land that they believe their ancestors come from and their claims to who they are.

JOHN DANKOSKY: So the loophole, in essence, allows universities or museums to just kick the can down the road and say, well, we don’t to whom we should return these. And so they’ll stay with us.

MARY HUDETZ: Correct. And today, the vast majority of the human remains that exist in collections have been declared culturally unidentifiable by institutions.

JOHN DANKOSKY: There’s another problem with this too. And I think this often happens when the federal government changes a law and says, we’re going to enforce something and make sure that it sticks. NAGPRA didn’t have any real teeth behind it because there wasn’t any enforcement mechanism at all.

MARY HUDETZ: Yeah. The enforcement mechanism was extremely limited. Just as, I think, there’s criticism that Congress did not fully fund the law in allowing for grants to fund repatriation work, there’s also a lot of criticism that there has not been enough money devoted to civil enforcement, which there’s clear language in the law that calls for fining institutions that may not be in compliance. But there’s been very little that that’s happened.

I think data we’ve seen places the figure around just more than $50,000 in fines against institutions over the years. Only last year, the Interior Department appointed a full-time investigator. I think they said that it was the first time they had a person in that position full-time.

JOHN DANKOSKY: So there wasn’t even an investigator assigned to this until last year.

MARY HUDETZ: Correct, to look into complaints filed against institutions that might not be in compliance with the law.

JOHN DANKOSKY: A big part of this project that you and ProPublica have worked on does, indeed, let us know across the country that some of our most famous institutions, loved institutions, places where we’ve spent quite a bit of our time, like the Smithsonian or the Field Museum, that they are part of this, that they continue to hold on to human remains. What exactly do you think needs to happen to get NAGPRA to be enforced?

MARY HUDETZ: I think so much of this– we hear a lot across the museum world and then among Native people, we hear the word institutional will quite often. So the law is, as we speak, the Interior Department is reviewing new regulations that might tighten the law. But I think beyond that, it’s public understanding of the histories of the institutions and sound public pressure for things to change.

We’re also in a moment, I think, there’s a new generation of museum workers. And so a lot of people have put a lot of faith in the fact that perhaps with the changing times, with a new generation, there’ll be more proactive work happening in institutions on repatriation.

JOHN DANKOSKY: When you reached out to some of these institutions for comment or to have them explain why they haven’t complied, what did you hear?

MARY HUDETZ: We hear often that time, resources, and money are major factors, even for institutions that have quite a bit of money or significant endowments and then even among a decisions that may have been founded with collections that were taken from gravesites. I would say we also hear that NAGPRA is complicated. And I think certainly through one lens, it can be. Others might argue that it’s as simple as I said earlier, listing what you have and working towards returning it.

But we’ve also heard that, yeah, NAGPRA is complicated. And museums feel they don’t know who to return to, which I think makes sense, at least with the smaller institutions with fewer resources. But we still, I think, are continuing our reporting to understand that explanation a little better with larger institutions.

JOHN DANKOSKY: Before I let you go, what exactly do you want people to take away from this reporting project, Mary?

MARY HUDETZ: There’s a couple of things. Most of all, it’s what I spoke to a little bit earlier about the need for basic and broad public understanding of the issue. And so to that end, my colleagues on our team at ProPublica developed a tool for the public to look up their institution, to look up their county or their state just to see what is held from or what was taken from the land where they now live.

And then the other piece, I think– and I think about this throughout the past year as we worked on the story and will continue to is just really the history of it all and understanding that so much of what was taken, especially early on, it happened at a really difficult time for Native people and they didn’t have a say over the treatment of their ancestors i the 1800s as major US expansion was happening and forcing them off their land. And so I think it’s understanding that history and then understanding how that history kind of continues today with– or has a lasting effect.

JOHN DANKOSKY: Mary Hudetz is a reporter for ProPublica. She’s based in Albuquerque, New Mexico. To read the full ProPublica report, you can head to our website.

They also have a tool that lets you search for any institution to see how they’re doing when it comes to repatriation. We’re going to link to that too. And what’s in there might surprise you. Mary, thanks so much for joining us. I really appreciate it.

MARY HUDETZ: Thank you so much.

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