Minnesota institutions look to return Native remains under new federal rule

CATHY WURZER: This is "Minnesota Now" here on MPR News. I'm Cathy Wurzer. Tomorrow, new regulations will go in place as part of the Native American Grave Protection and Repatriation Act. It's a law that is to prevent grave looting, and it pushes museums to return human remains and items excavated from Native American gravesites back to tribes. But there have been loopholes preventing this, and the new regulations hope to close those loopholes.

According to a ProPublica database, the University of Minnesota's Weisman Art Museum, the Minnesota Historical Society, and the Goodhue County Historical Society are among some of the institutions that have Native remains from across the country. To explain more about the process and the impact of these new rules is University of Minnesota professor of anthropology Kat Hayes, who specializes in archeological ethics and repatriation.

Professor, it's really an honor. Thanks for taking the time.

KAT HAYES: Thank you.

CATHY WURZER: Say, by way of context for folks who might not understand, what was the point of all these museums across the country and here in Minnesota holding all these Native remains and artifacts over these many years?

KAT HAYES: Well, it may seem a little strange in the context of today's ethics, but, historically speaking, museums and universities have felt that it was OK to hold those remains because they were in service of some, quote unquote, "greater good" of research potential. Or for items that were taken from graves that were then recategorized as artworks that were available for everybody. Fortunately, we don't really think that way anymore, or at least the perception is changing as to the ethics of holding on to those remains.

CATHY WURZER: Can you tell us about the collection that was at the Weisman?

KAT HAYES: Yeah, so it has a long history to it in that it actually originated in the Department of Anthropology, or from the Department of Anthropology, which is how I got involved with it. Excavated by the department's founder and his crew starting in 1928. He was-- Albert Jenks was going to New Mexico. He was literally learning how to do archeology and got interested in the Mimbres Valley area.

And so he learned in 1928 in partnership with a few other institutions in the Southwest, and then he went on to do three more years of excavations at one particular site but was sort of roaming around and looking at other sites, brought those materials back, and human remains, and grave goods. And never really did a whole lot with it research-wise, which really undercuts the rationale for research materials.

Unfortunately, then those items were traded or exchanged around with multiple other museums, and so the collection ended up being spread pretty widely across the country.

CATHY WURZER: So we have this law that's been on the books now for, what, some 30 years, I think. And yet, ProPublica reports that tens of thousands of remains and grave goods were taken from tribes in Minnesota specifically, but across the country, as you just said. Why was there a delay among some museums and other institutions to return these items?

KAT HAYES: Well, for a few reasons. At the worst, some museum leadership felt that they were philosophically opposed to the whole concept of repatriation. And so they would employ whatever loopholes they could in the law to simply hang on to those remains. One of the more egregious ones was to deliberately classify human remains as culturally unaffiliated, and that's something that the new regulations will not allow for institutions to do moving forward.

In other instances, though, the failure to return is chalked up to a lack of resources because, as you might imagine, over the centuries, a lot of material has come into museums, and it takes a lot to go through those and then to send out all the notices. But it also takes you know dedicated staff to do the process of tribal consultations well and respectfully. So some institutions have really claimed that they lacked the resources to do the job correctly.

CATHY WURZER: In some instances, have there just been honest mistakes made?

KAT HAYES: Yeah, absolutely. I think the regulations actually don't require, strictly speaking, a physical inventory. It actually required institutions to use their archives, basically, their records, to file the initial inventories. And as astonishing as it may seem, many museums actually do not have a good sense of what is in their own collections.

And so, in some cases, there are honest mistakes in which an inventory may have been conducted. And then, several years later, the staff in that museum actually find materials and realize that they are associated with a collection. They didn't realize that they may have sent it back already, or they didn't realize it was there.

CATHY WURZER: And I ask that because I remember talking, actually, to the former Weisman director a number of years ago, and she thought that they were compliant. I mean, but they weren't at the Weisman. And she called it an honest mistake.

KAT HAYES: Yeah. One of the one of the things that often happens, and this is another one of the weaknesses of the law, is-- I mentioned that the collections get spread across multiple institutions over time. There really isn't a requirement in the law for institutions, museums, to consult with one another.

And so when you have collections that are actually affiliated but spread across multiple institutions, it can become easy to not realize that you are supposed to be compliant, or to feel that you have done your job just by looking in your own collection, when really what's required is to collaborate across multiple institutions. There is a state law in Minnesota that also separated the human remains from the grave goods, and that introduced a fair degree of confusion.

CATHY WURZER: Say under the new regulations, how easy will it be, then, to return remains?

KAT HAYES: Well it's meant to facilitate the process, make the process easier. There is still a process that needs to be engaged in terms of making it transparent to tribes what museums hold. It is meant to especially speed up the process of identifying affiliated tribes and establishing-- it was actually reasonably easy earlier. It's just that institutions felt that they needed a really high degree of different kinds of evidence to be sure that they had the cultural affiliation correct.

The new regulations really emphasize the fact that tribal traditional knowledge is, in and of itself, sufficient, really. And so it lays more emphasis on the consultation process. But once that consultation process is engaged in, the regulations now say, trust the tribes. What they're saying is does not need backup evidence if they have a firm connection to these materials.

CATHY WURZER: I'm glad you brought up tribes. Just briefly, what role do they play in repatriation?

KAT HAYES: Well, so in the process-- under NAGPRA, at least. In that process, the institutions share all the information that they have about their collections with tribal offices. Tribal offices then need to respond with a request for more information or to be able to visit in order to close that loop and assert a connection. And then, once the notice of inventory completion has been filed, then a tribe has to step forward and assert a claim in writing to the institution. And then they work with the institution to figure out the process of return.

That process itself is actually very time consuming and expensive. There are some grants through NAGPRA to help with that. But institutions also really need to step up and help in that process and recognize that there's a real burden on the tribes in this process. And it's also an emotionally difficult process.

CATHY WURZER: Given all of that, though, how important is it for tribes to have what is theirs come back to them?

KAT HAYES: Well, it's really up to them. I mean, in some cases, a tribe may decide that they want to assert a claim to a set of materials or remains but that they don't want it to come back. And what they're asking for is for the institution to care for them according to of their needs.

So that might mean, in a collection, have to have certain conditions. The new regulations also make it very clear that an institution cannot engage in any kind of exhibition or open access of materials without the free prior and informed consent of a tribe, whether or not they've lodged a claim. There are ways in which tribes are in different places when it comes to that process of return. For some of them, that's not what they want, but that doesn't mean that they don't assert a sense of connection and obligation to those remains.

CATHY WURZER: Interesting. Professor, I appreciate your time. Thank you for talking about this.

KAT HAYES: Well, thank you for having me.

CATHY WURZER: Kat Hayes is a professor of anthropology at the University of Minnesota. You can listen to "Morning Edition" tomorrow for more on this story from MPR News' Native reporter, Melissa Olson.