In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study.
This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples.
Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding.
NAGPRA demonstrates the potential power the law has to promote social justice among members of structurally marginalized communities. The history of its implementation, however, demonstrates how its potential can be wasted through a failure by agencies to meaningfully engage with the very communities that are a regulatory program's intended beneficiaries.
NAGPRA has been subject to complaints from its inception, ranging from allegations that it is burdensome, plagued with red tape, and artificially exclusionary and homogenizing. The U.S. Department of the Interior ("Interior") recently had a valuable chance to correct many of these flaws. In 2021, it announced its intentions to consult with tribal leaders and Native Hawaiian Organizations ("NHOs") on revised regulations. However, in practice, these consultations reinforced existing inequities within tribal communities.
The tribal officials involved in the consultations were primarily repatriation officers and Tribal Historic Preservation Officers ("THPOs"), a type of tribally designated historic preservation officer common among federally recognized tribes. In the first consultation, a THPO noted that its office was barely able to draft comments before the first deadline, even though they had significantly more time and resources than many other, similar tribal offices whose comments went unheard.
This demonstrates a deeper problem with targeted outreach and a technically focused rulemaking approach. Despite being intended to address the broad, underlying issues preventing meaningful consultation and efficiency, the calls focused on details within existing regulatory provisions, with few attempts to make them understandable to individuals not already familiar with the day-to-day operation of NAGPRA. For example, the most substantive call discussed the removal of the terms "culturally unidentifiable" and "possession," with no explanation of what those terms meant in the context of the regulation or why they had historically blocked equitable administration of the law.
Excluding marginalized people
In addition, Interior excluded individuals from more marginalized subgroups within Native American communities. As noted on the calls, even tribes with an existing historic preservation framework had difficulty meeting the first comment deadline, given their budgetary constraints. Further, the highly administrative and technical approach to the consultation meant that participation predominantly comprised historic preservationists and officials from tribes with the budget and time to devote to writing comments and attending calls.
This is a critical failure when a leading criticism of NAGPRA is that it unfairly burdens tribes and does not adequately reflect complex tribal identities. The consultations emphasized the positions of those most able to navigate NAGPRA, while failing to reach out to those who may have been overlooked in previous calls. It is especially critical given recent data that tribal communities are overall the least digitally connected of any demographic in the United States. To successfully remove administrative barriers to participation in the system, one cannot solicit feedback only from those capable of participating in the system to begin with.
To avoid replicating these failures, Interior should overhaul its existing consultation procedures with the goal of making its administrative activities more inclusive of historically underrepresented stakeholders and those who have not previously participated in the regulatory process. It should apply these new procedures as part of a new round of consultations to inform its efforts to strengthen NAGPRA regulations. At a minimum, these procedures should consider disparities in digital infrastructure, familiarity with regulatory terms, and ability to spend time on calls or draft comments.
Policymakers, scholars, and advocates have long criticized the unnecessary barriers to participation that the public must overcome in order to have their voices heard in the regulatory system. Only by careful attention to matters of procedural justice will Interior fulfill the substantive justice goals of NAGPRA.