When Congress passed the Native American Graves and Repatriation Act in 1990, four crucial definitions were enacted into law: (1) “‘burial site’ means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human remains are deposited;” (2) “‘cultural affiliation’ means 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;” (3) “‘Indian tribe’ means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village. …, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;” and (4) “‘Native American’ means of, or relating to, a tribe, people, or culture that is indigenous to the United States.”

Despite the title of the act, it was obvious from the definitions that Native American graves were not protected. By its own terms, NAGPRA only covered the graves of “Indian tribes,” and “Indian tribes” only refers to indigenous peoples who are “recognized” by the United States.

Once again, the United States found a way to divide Native nations. Human remains that couldn’t be traced to a “recognized tribe” are defined as “unidentifiable,” regardless of the fact that oral tradition, ethnology, history, anthropology, archaeology, and other scientific and traditional evidence might clearly point to a specific Native American origin. In NAGPRA, “identity” is shorthand for “recognized.”

As Margaret Bruchac and Michael Brown put it in “Imperialism, Art and Restitution” (2006), “In NAGPRA-speak, the term ‘Native American’ encompasses all of the continent’s indigenous peoples, but only federally-recognized ‘tribes’ can claim to be ‘culturally affiliated’ and ‘culturally identified’ with museum collections. … The terminology of the NAGPRA legislation has had an insidious effect on inter-tribal discourse regarding sovereignty.”

The statute acknowledged the problem by creating a NAGPRA Review Committee to “compil[e] an inventory of culturally unidentifiable human remains. … and recommend. … specific actions for. … disposition of such remains.”

But when the Interior Department promulgated regulations in 1995 to enforce NAGPRA, it tracked the statutory definitions: “If the cultural affiliation of human remains cannot be established pursuant to these regulations, the human remains must be considered culturally unidentifiable.” The regulations promised that procedures for disposition of “culturally unidentifiable” human remains of Native American origin would be promulgated in the future.

On Oct. 16, 2007, Interior proposed a rule in the Federal Register “for the disposition of culturally unidentifiable human remains in the possession or control of museums or Federal agencies.” For the first time, “non-federally recognized Indian groups that are known to have a relationship of shared group identity with the particular human remains and associated funerary objects” would be included in the repatriation process. Native Americans, and not just “recognized tribes,” would be protected.

Some institutions are resisting the proposed rule. Formal comments by the Society for American Archaeology challenged the Interior’s power to make regulations for “unidentifiable” remains, asserting that the only Constitutional basis for NAGPRA is the “special relationship” indicated by federal “recognition,” and that “a museum/agency should be presumed to have legal right of possession over its collections.”

The University of Massachusetts Amherst took a different stand. Its formal comments “fully endorse the inclusion of non-federally recognized groups in the consultation and repatriation process.” The statement calls to “strengthen this development even more,” on the grounds that “Native sovereignty is a fundamental right of Native peoples.

“[W]e. … should not be placed in a position of arbitrating intra-Native property claims among and between federally and non-federally recognized communities. Such mediation is best done by Native groups themselves, and/or organizations that work in the interest of Native American communities. For example, on a state basis, the Massachusetts Commission on Indian Affairs has the ability to provide such guidance.”

Coalitions of “recognized” and “non-recognized” peoples have formed in various regions to facilitate the proper restitution of remains. The Wampanoag Confederation was an early example, inspiring similar groupings in California and elsewhere. These coalitions, of course, depend on the willingness of “recognized” peoples to reach across the legal chasm of “non-recognition” to help all Native Americans.

In a strong statement responding to the collapse of one coalition, Donna Roberts Moody, an Abenaki repatriation coordinator, asked, “Do these people somehow believe that because they are federally recognized tribes they have special consideration from Creator, or that they are better loved by Creator, or that their ancestral remains are more important than those of non-federally recognized tribes? Maybe; and if so, they have successfully been assimilated into the White world.”

Viewed in light of the statute and the regulations, the UMass NAGPRA dispute turns out not to be about UMass, but about NAGPRA. More specifically, the dispute is not about an institution trying to hold on to burial remains, but about an institution trying to turn remains over to their rightful custodians.

To this date in 2009, no final regulations have been provided for this important and divisive issue. UMass and the Abenaki and other Native Americans are left in legal limbo.

Peter d’Errico is a consulting attorney on indigenous peoples’ legal issues. He graduated from Yale Law School in 1968, was a staff attorney in the Shiprock office of Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970, and taught Legal Studies at the University of Massachusetts Amherst, 1970 – 2002. His Web site is www.umass.edu/legal/derrico.