Shifting Tides?

The Changing Legal Landscape of Repatriation Efforts for Native American Artifacts

By Jessica Karp

As children, we are taught simple adages that govern our concept of ownership. We know that if it is given to us, it is ours, we may need to share our things with others. If something is lost and we pick it up, “finders keepers” may apply. For hundreds of years, these simple concepts also governed the more complex process of collecting for museums and cultural institutions. Often, works brought into the collection of cultural institutions were previously stolen by conquerors, colonizers, and others, and the true ownership of such items was considered of little to no consequence. The idea of true ownership and returning objects of cultural significance to their rightful homes, repatriation, has only become more well-known in the last hundred or so years, thanks to the media and movies like Woman in Gold. 

Even so, the actual return of disputed objects has been merely a dream for most of the countries, cultures, tribes, and individuals who find the mementos of their cultural history strewn around the world, given to museums by the “finders” who claimed the objects as their own. In the United States, one of the important battlefields of repatriation regards Native American artifacts and items of cultural significance. Tribes, individuals, and organizations have fought for many years for the return of such items to their rightful homes. 

The actual return of disputed objects has been merely a dream for most of the countries, cultures, tribes, and individuals who find the mementos of their cultural history strewn around the world, given to museums by the “finders” who claimed the objects as their own.

Seemingly making strides on this front, in 1990 Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). In the United States Senate Report 101-473, members of Congress noted that the aim of the law was to encourage a dialogue between museums and Indian Tribes and promote a greater understanding between the groups. The law requires that, among other things, an institution holding Native American remains or other cultural items compile a public inventory of such items. Then, the institution must evaluate any repatriation or disposition requests received and expeditiously repatriate or transfer the items upon such qualifying request. However, the law did not provide necessary guidelines for what requests would be “qualifying.”¹ Instead, “[r]epatriation requests are processed through guidelines created by the institutions, which also decide if the evidence presented satisfies their own criteria.”² 

This gap in guidance left NAGPRA to stumble along as repatriation requestors were met with delays, excuses, or outright refusals by institutions. Institutions have argued such delays are caused by the difficulty, time, and expense involved in the process of identifying cultural affiliation of objects. However, even clearly identified objects have not been returned expeditiously, if at all. There have been attempts to streamline NAGPRA as far back as 2010, most recently with President Biden in 2021.³ But, most attempts have failed, and many tribes have been frustrated with the lack of action following the passage of the law. Shannon O’Loughlin, chief executive on the Association on American Indian Affairs spoke on repatriations in a USA Today article and summarized this sentiment: “The time for talk is over. Enough reports and studying. It’s time to repatriate.”⁴  

Institutions have argued delays are caused by the difficulty, time, and expense involved in the process of identifying cultural affiliation of objects. However, even clearly identified objects have not been returned expeditiously, if at all.

Recently in Minnesota, after decades of non-compliance with NAGPRA, the tides may be shifting as cultural institutions take steps towards repatriation. For example, in February 2022 the Board of Regents of the University of Minnesota approved starting the repatriation process on many items held by the University.⁵ The Minnesota Historical Society has also started returning objects through a process called digital repatriation under which the institutions return archival quality copies of cultural materials, rather than the physical objects, back to the tribes where they belong. Ben Gessner, the collections associate of the American Indian and Fine Arts Collections at the Minnesota Historical Society, commented on this recent shift in repatriation, saying: “[i]n museums, I think there are just huge philosophical shifts happening. And part of that is because of this incredible organization and pressure from Native communities and tribal governments...’”⁶  

The question of whether this shift towards more repatriation is a permanent one or merely a momentary blip based on recent pressure is yet to be answered. The approval of the return of items is not the actual return of such items, and elsewhere pressure has not been met with swift action. For example, in September 2022, the president of the University of North Dakota had to apologize for the school’s possession of Native American artifacts and human remains which should have been returned decades ago under NAGPRA and had yet to be repatriated even after repeated pressure.⁷  

After 30-plus years of fighting NAGPRA it seems unlikely institutions will give in so easily to relinquishing the objects housed in their collections. Digital repatriation may be a solution that both protects the objects and ensures the rightful owners have access, but only those requesting return of the items can say whether this is enough. Still, many in these institutions continue to fight to keep these objects, whether it be to ensure they are not destroyed or to not set a precedent of losing their valuable collections. As the debate rages on, are the tides finally shifting or are the fights over repatriation of Native American artifacts just beginning a new era? 

Jessica Karp is an attorney with Maslon LLP, assisting clients in general corporate law, nonprofit formation, contracts, and mergers and acquisitions. Before attending law school, she earned a master's degree in art & museum studies from Georgetown University and worked as a museum collections' manager. 

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