Cadence Seeger

Comparing the Laws that Provide for the Repatriation of Human Remains from Museum Collections to Indigenous Communities in New Zealand and the United States 

Updated as of 4/20/2021

Abstract

This paper investigates the manner in which museums in New Zealand and the United States repatriate human remains to indigenous Māori and Native American communities, respectively. In comparing each country, how do the repatriation laws compare and contrast in history, implementation, and reception? New Zealand has had a substantially longer history of repatriation legislation compared to the US, which is mostly limited to the 1989 National Museum of the American Indian Act and the 1990 Native American Graves Protection and Repatriation Act (NAGPRA). Part of this discrepancy in legislative history is due to the standing of indigenous people within their communities, as Māori have been legal citizens of New Zealand for decades longer than Native Americans have been citizens of the United States. The Treaty of Waitangi, the law that made Māori legal citizens, has itself been used as a foundational document for later repatriation legislation. The New Zealand repatriation program is also centralized through the national museum, Te Papa, which has the express goal of repatriating every single set of human remains in museum collections back to its appropriate group. In contrast, United States museums do not have a centralized system backed by government funding and legislation outside of NAGPRA, and unstable connections between museum institutions and Native tribes have led to difficult or incorrect repatriation. In the end, New Zealand museums and legislation have gone a lot further in establishing repatriation programs and systems due to a stronger social standing of their indigenous community and a longer history of laws relating to repatriation and Māori graves protections. United States legislation is on its way to establishing a strong legal framework for repatriation, but could certainly look to New Zealand for a successful and efficient repatriation legal system. 

The movement for global decolonization began after the second World War and strengthened throughout the latter half of the 20th century. 1 Now, items of cultural significance that have been looted, stolen, or traded away from their source cultures are under review for return, though every country has a different policy for such repatriation. Issues of repatriation and what museum collections should return versus what is better housed in the museum become even more contemptuous when the item at stake is human remains. For centuries, bones, heads, and other human remains have been traded for private collections, profit, or science, and many indigenous remains now live in museum collections far from their ancestral burial places. This paper will explore the laws regarding the repatriation of human remains in New Zealand and the United States by examining each country’s history of trade and excavation, repatriation laws and their implementation and reception, and indigenous viewpoints of these efforts. In a final comparison of the two systems in each country, how do the repatriation laws compare and contrast in history, implementation, and reception?  

The Māori are the indigenous people of the land now referred to as New Zealand, or Aotearoa. In Māori culture, the spirit of a deceased individual is not considered to leave the body until it is buried, so friends and relatives will stay by the deceased holding twigs and leaves as a sign of mourning until the proper funeral rites are followed. After the body is buried, the spirit of the deceased is freed to travel up through the middle of the North Island of Aotearoa to a Pohutukawa tree that sits at the very tip of Cape Reinga, which lies at the most northern tip of the North Island. The spirit slides down the roots of the Pohutukawa tree and emerges into Ohaua, which is located at the highest tip of the Three Kings Islands. Here the spirit bids a final farewell to the living before descending into Uetonga, the realm of the underworld, to join their ancestors. 2 Though the spirit has moved on, physical remains are an extremely tapu, or sacred, subject in Māori culture. Spirits continue to live in inanimate ancestral taonga, or treasures, that are passed down through generations. These taonga continue to house the spirit of the ancestor, so death never completely severs a person from their family. 

Since the most tapu part of an individual in Māori culture was believed to be the head, “the preserved heads of relatives and friends were kept and exhibited on important occasions.” 3 The collection of koiwi tangata, or human remains, was therefore a common practice among Māori tribes. When Europeans first arrived in New Zealand, they were fascinated by Māori facial tattoos and preserved heads that many tribes possessed. While the main motivating factor for collecting these heads was profit, naturalists, artists, and macabre enthusiasts alike all wanted to own, sell, or trade tattooed Māori heads. 4 The Māori, seeing the benefit of this sudden trading opportunity, would trade the collected heads of their enemies freely and openly. Despite this period of consensual trade, there was also a long history of Europeans looting and grave robbing Māori burial sites for human remains. This “collecting” often occurred in caves that were used as primary or secondary burial sites. 5 These excavations continued until the 1970s, but have been out of practice since the 1979 “Leach and Leach,” a publication that prompted an expectation for all archaeological fieldwork conducted in New Zealand to be published in full. 6 

New Zealand museums were also heavily involved in the trading of Māori remains during the latter half of the 19th century, as bartering for the prized remains allowed New Zealand museums to build up their own collections of worldly prizes. 7 By 1900, the systematic looting of burial sites in caves was finished, as “much of the land containing burials was no longer in Māori hands, with 83% of the country now belonging to either the government or people of non-Māori descent.” 8 Despite this, New Zealand museum collections containing human remains are comparatively small, as they mostly consisted of human remains accidentally discovered through development activities and given to museums before there was a system in place to connect developers with local iwi instead. 4 New Zealand museums have been relatively receptive to requests and complaints from patrons for their collections, which has fostered good will between museums and Māori communities. In the 1890s, the Canterbury Museum removed a Māori head from display following a complaint. 10 In 1932, “the Native Affairs Minister Sir Apirana Ngata intervened with the Auckland Museum on behalf of a Māori community whose ancestral graveyard was being excavated.” 10 As Māori presence in government and museum staff increased throughout the 20th century, as did their influence on ensuring the proper handling and treatment of ancestral Māori remains. The New Zealand repatriation movement truly began in the 1980s with the “Te Māori” exhibition, which involved Māori elders in the curation of the exhibit for the first time and resulted in greater representation of Māori voices in museum spaces. 4 From that moment, it became common practice for museums to consult local iwi to determine how Māori remains entered their collections and how they should be handled. In a 1997 survey of 350 New Zealand museums, “almost all expressed a strong commitment to work with iwi to find a solution to repatriation requests.” 9 

This cooperative relationship between museums and Māori communities is often credited to the relatively high standing of Māori in New Zealand society. Māori people are “generally recognized as being in the best position of any indigenous people in the world when it comes to rights and self-determination,” and they have strong political presence and support. 11 Māori were made legal citizens in the 1840 Treaty of Waitangi only 70 years after initial contact, and in 1974 the Māori Affairs Amendment Act made Māori an official language of New Zealand. 4 This societal standing has greatly helped Māori efforts for repatriation, as they can exert pressure on museums and have general support for such endeavors from Pakeha, or non-Māori New Zealand citizens. 

The Treaty of Waitangi was the first legal action that paved the way for the repatriation of Māori human remains. The Treaty, written in English and Māori, reads: “Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties.” 5 This has been interpreted to include koiwi tangata (human remains) and has been used as legal groundwork in later repatriation efforts. In 1993, the Ngai, the largest iwi in the South Island, became the first iwi to use the Treaty to produce a written policy for the rights of the iwi to manage koiwi tangata taken from their land, and the first official repatriation program was established in 2003 with the Karanga Aotearoa Repatriation Research Committee. 5 The Heritage New Zealand Pouhere Taonga, then known as the New Zealand Historic Places Trust (NZHPT), published the The Historic Places Act in 1993, which sought to “promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.” 12 The Provisions relating to wāhi tapu (sacred lands) section of the The Historic Places Act notes that any party who seeks to excavate or otherwise alter wāhi tapu lands must not only provide written explanation to and receive consent from the Māori Heritage Council, but also the appropriate iwi of the land. 12 The NZHPT also abided by the 1964 Burial and Cremation Act, which required a license from the Ministry of Health and the local Public Health Unit to remove or disturb any found remains. However, the Burial and Cremation Act expressly “shall not apply to Māori burial grounds or to the burial of bodies therein.” 13

Both the The Historic Places Act and Burial and Cremation Act had shortcomings when it came to protecting Māori lands and remains, an issue that was rectified by the Heritage New Zealand Pouhere Taonga Act of 2014. The Heritage New Zealand Pouhere Taonga Act not only repealed The Historic Places Act, but sought to better define many of the protections outlined in earlier acts, including specific sanctions for breaches, and continued the practice of keeping lists of cultural heritage sites “comprising historic places, historic areas, wāhi tapu, and wāhi tapu areas, and also to include wāhi tūpuna, as a means for recognising heritage values.” 14 This legislation was the culmination of multiple previous laws protecting lands and human remains excavated or buried in those lands. By bringing together a lot of the groundwork established in earlier acts, the Heritage New Zealand Pouhere Taonga Act clearly defined who and what was covered by the law, what sanctions would be implemented for breaches, and how Māori remains were protected. 

The established program for the repatriation of Māori remains is largely administered by the New Zealand national museum, Te Papa. The Museum of New Zealand Te Papa Tongarewa Act of 1992 gives the national museum Te Papa control over how to use its funds, “but operates under a governmental order to develop and implement a repatriation program that was issued in 2003.” 16 This led to the establishment of the Karanga Aotearoa Repatriation Unit, which is run through the museum. This Unit seeks to “identify human remains, to negotiate with overseas institutions, repatriation, and the return of remains to a final resting place” and includes a number of iwi, New Zealand museums, and various government bodies, including: the Ministry of Culture and Heritage, the New Zealand Customs Service, the Ministry of Foreign Affairs and Trade, and the Department of Conservation. 16 The museum also covers all costs associated with packaging, shipping, and reburying repatriated remains, and the goal of the Karanga Aotearoa Repatriation Unit is to return every single Māori koiwi tangata to its appropriate iwi. 

New Zealand has signed both the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. 16 The New Zealand statute that implements these two pieces of legislation is the 1975 Protected Objects Act, which aimed to provide protection for certain objects by regulating export and import of certain items, including “establishing, recording the ownership[, and] controlling the sale of ngā taonga tūturu within New Zealand.” 15 Ngā taonga tūturu is defined as objects that relate to Māori culture, history, or society; were manufactured or modified in New Zealand by Māori; or were brought to New Zealand by Māori. 17 Māori remains are considered among the protected items in this act, as they fall in the ngā taonga tūturu category. Concerning ngā taonga tūturu in the Protected Objects Act, the Māori Land Court is given jurisdiction to decide the rightful custody of remains recovered from Māori burial sites within New Zealand.

The various legal actions taken to ensure archaeologists, museums, and anyone who excavates or comes into contact with Māori remains first contacts the appropriate iwi is the crucial cornerstone to New Zealand’s successful model of repatriation. The established system of communication between tribes and officials has been carefully curated through decades of legislation outlining Māori rights and protections not often seen in colonized countries, which has created a collaborative atmosphere of trust. Unlike many colonized nations, “New Zealand is unique, where bioarchaeology and archaeological practice is very much intertwined with Māori cultural and spiritual values, making the relationships between iwi [...] and bioarchaeologists generally positive.” 18 That said, no group is homogenous in thinking, and not all Māori are content with the manner in which repatriation has been undertaken by New Zealand museums. For instance, there is a belief that “heads should be returned but not reburied, instead being made available to modern artists to study for the purpose of reviving the art form” of facial tattooing, which was at risk of going extinct after decades of English law outlawing the practice. 11 Proper lineage can also be tricky to pinpoint when many remains were sold by rival iwi for revenge, so the exact location or tribe where the remains were procured may not be where the individual was actually from. Despite these issues, surveys of the New Zealand public indicate an overwhelming support for repatriation and reburial, and place a higher level of importance on the religion and feeling of the local iwi over the requirements of archaeologists. 4 All of these signs show that New Zealand officials have not only properly included Māori individuals in the conversations relating to repatriation, but the social standing of Māori in New Zealand society helps cement their ability to advocate for themselves and for their people.

In the United States, professional excavation of human remains has been traced back to the early 1800s, and many of the Native American skeletal remains removed from their burial sites ended up in institutional collections, like the Smithsonian. 19 The major piece of legislation protecting the rights of Native American human remains and grave goods is the Native American Graves Protection and Repatriation Act, or NAGPRA. A substitute amendment to NAGPRA “provides that for any Native American human remains or funerary objects, excavated or discovered on Federal or tribal land after enactment of this Act, the lineal descendants shall have the right of possession,” as well as establishing a permit process for the excavation or removal of Native American human remains. 20 Unfortunately, though this legislation established in 1990 has done substantial work for protecting the rights and remains of Native Americans since its adoption, it does not solve the decades of improper removal, often done with little to no documentation, making some remains incredibly difficult to repatriate to the correct tribe. 1

Like the Treaty of Waitangi in New Zealand, Native Americans were granted citizenship in 1924 through the Indian Citizenship Act. Unlike the Treaty of Waitangi, which was a lengthy document written and distributed in both English and Māori, the Indian Citizenship Act is an incredibly brief document, not signed by any Native tribal leaders, which establishes “that all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizen of the United States.” 21 This document did not grant any rights beyond citizenship to Native individuals, who were still unable to vote until 1957. In a WPA interview from the 1930s, Henry Mitchell describes the attitude toward Native Americans in Maine, one of the last states to comply with the Indian Citizenship Act: “One of the Indians went over to Old Town once to see some official in the city hall about voting. I don’t know just what position that official had over there, but he said to the Indian, ‘We don’t want you people over here. You have your own elections over on the island, and if you want to vote, go over there.’” 22 Comparatively to the Treaty of Waitangi, the Indian Citizenship Act was not generally accepted or enforced by public officials for decades after its signing. The Act granted relatively few protections or privileges to the Native community and has not been known to lay the foundation for any current repatriation legislation. 

Another pressing issue in United States repatriation law is the highly variable degree of state legislation. While most, if not all, states have laws in place protecting burial sites and human remains, the exact extent of the law and what is protected changes from state to state. Eighteen states report having laws in place that outline some process for handling human remains following excavation. 5 Many other states lack proper reburial laws and instead handle cases strictly on a case-by-case basis. The party responsible for reburial, if that is determined to be the best way forward, also differs by state: the responsible individuals are tribal leaders in Minnesota, the archaeologist who received the permit to excavate in Idaho, and the State Archeologist in Iowa. 5 These state laws guide how excavations can be conducted and the procedures to follow if human remains are found, but they do not necessarily relate to remains already held in institutional collections. They can, however, provide the basic legal framework on which state repatriation laws could one day be written. 

State laws can also differentiate in their definition of “interested parties,” from federally recognized tribes to “lists of individuals known to have an interest in such issues,” a vague definition in itself. 5 Federal laws, as opposed to state laws, tend to focus on human remains already in repositories over those that are newly excavated or discovered. In 1989, Congress passed the National Museum of the American Indian Act, which mandated the Smithsonian Institute to “inventory the Indian human remains and Indian finery objects in the possession or control of the Smithsonian Institution; and [...] upon the request of the descendents of such individual or of the Indian tribe shall expeditiously return such remains to the descendants or tribe.” 23 If a relation was found, that tribe could then request the object to be transferred to their ownership, leading to over 3,000 sets of human remains being repatriated from Smithsonian collections. 19 The very next year in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) was passed. This law mandated that all other federal agencies inventory their collections and “if the cultural affiliation of Native American human remains and associated funerary objects with a particular Indian tribe or Native Hawaiian organization is established, then upon the request of the Indian tribe or Native Hawaiian organization such remains and objects shall be expeditiously returned.” 20 This law established the legal basis for claims for repatriation to be submitted and conducted, as federally-recognized contemporary tribes could claim ownership based on lineal descent for human remains. 24 NAGPRA has been the single most effective federal law for repatriation of human remains to Native Americans in the United States, and is referred to often in most conversations about repatriation or Native American representation in museum spaces. 

While some museum collections had documentation or established connections to tribal groups, many institutions continue to have severe difficulties carrying out the legal requirements of NAGPRA due to a difficulty in defining affiliation with contemporary Native tribes. 5 While estimates of the total number of Native American remains held in US museum collections vary widely, the most credible sources approximate the number of individuals to be around 200,000. 1 To have so many remains separated from their physical and spiritual homelands, Native American tribes have had to shoulder the burden for return and repatriation of their own relatives and ancestors for most of US history. Even with NAGPRA, repatriation is not always easy, as records and documentation associated with remains are highly variable. That said, NAGPRA has had a substantial impact on the museum community by bringing these issues to light. In a report from the National Park Service published in May 2003, it is estimated that inventories of human remains have been received from 815 institutions, including 261 federal agencies, and inventories published to the Federal Register include “27,863 sets of human remains and 564,726 associated funerary objects.” 1 Items that have laid in museum collections for decades are now being evaluated, and their heritage is being carefully considered. Unfortunately, as NAGPRA does not mandate a central record for repatriation, it is unclear exactly how many items have been returned to Native communities. That said, this law is still a huge step forward for institutional mindfulness, decolonization, and Native sovereignty.

Unfortunately, not all museums in the United States have been open or receptive to NAGPRA’s implementation. Some museums, faced with “impending loss, potential illegality, and shifting cultural interpretations of their Native collections,” respond by limiting information and public access to their collection. 1 Concerns from the scientific and museum communities over the impact of repatriation on scholarly research have shadowed NAGPRA since its inception. In a questionnaire distributed to 19 museums across the US, over 49 museums practitioners directly involved with their institution’s NAGPRA efforts reported “linkages between museum staff and indigenous peoples, appointment of project coordinators, and provision of specific positions for indigenous staff in repatriation projects were highly correlated with effectiveness.” 24 However, this study also indicated that the legislative nature of the mandate “limited the degree of genuine consultation and participation in the change process,” and visions from senior management were frequently contradictory, confusing, and narrowly-defined. 24 Insufficient time and availability, mixed with inaccurate documentation and poor record-keeping, has led to human remains being repatriated to the incorrect Native communities. 1 Quick repatriations, “justified by expressed Native concerns about the spirits of the deceased,” have also led to hasty and inaccurate determinations of cultural affiliation with human remains. 25 The most effective repatriations have been shown to be strongly correlated to those whose museum staff take the time to connect and hear from tribal communities, yet few museums have the time, resources, or connections to make those alliances and ensure remains are going to the correct communities. 

The implementation of NAGPRA has also not been solely positive for the Native communities it was meant to aid. Many federally-recognized tribes were unprepared and ill-equipped to handle or evaluate the sudden inundation of inventory lists sent to them from various museums. Court cases like the  “Kennewick Man” case (Bonnichsen v. US), in which a Native tribe petitioned for cultural affiliation to human remains and were denied based on the advanced age of the remains and inability to conclusively determine whether the “Kennewick Man” was Native American, brought up questions of whether courtrooms are the most fair settings to determine highly emotional and spiritual issues interwoven with centuries of maltreatment and trauma. 26 The Kennewick remains, which were “8340 to 9200 years old,” became the centerpiece of a debate for reburial by a tribe claiming affiliation versus a coalition of scientists who sought to study the remains. 26 This case set a precedent for provable affiliation through documentation to be provided in order for Native tribes to claim connection, which disadvantages Native communities who may not have extensive documentation relating to particularly old skeletal remains. As highlighted by Bonnichsen v. US, many of these remains are from long before Native Americans would have had any written legal documentation. Birth certificates, death certificates, and paper documents of lineage are a European introduction to the Americas, and mandating Native individuals to provide such documentation stretching back to the 1700’s or 1800’s is often impossible. Another substantial shortcoming of NAGPRA is that it only mandates the repatriation of remains to federally-recognized Native American groups or individuals with sufficient documentation to prove heritage. By leaving federally unrecognized Native communities out of NAGPRA, “some of the Native peoples most devastated by the colonial experience are least likely to benefit from NAGPRA.” 1 The NAGPRA Review Committee is available to receive requests from non-federally recognized communities, but they tend to rule in favor of federally-recognized tribes in almost all disputes of ownership. 1 Willingness to work with non-federally recognized Native American communities could bring about an entirely new phase of NAGPRA and exponentially expand the number of communities the legislation is able to benefit. 

While laws like NAGPRA are a step in the right direction for returning ancestral remains and giving sovereignty back to Native communities, the repatriation process is not without its flaws and shortcomings, and much more work is needed in the United States to meet tribal communities where they are while respecting their religion, spirituality, and practices. This is especially necessary when dealing with cultural objects as sacred and personal as human remains. 

While one way to determine a repatriation system’s efficacy would have been to compare the percentage of remains repatriated from museum collections to indigenous communities, there was unfortunately no substantial data available in either New Zealand nor the United States that could provide an accurate percentage of repatriated human remains. There is such a wide range in not only the estimated number of remains repatriated, but also in exactly how many remains are in museum collections to begin with, that any percentage would be an incredibly rough and likely misleading approximation. In lieu of drawing such numerical conclusions, this paper will instead consider the strengths and weaknesses of each system of laws in relation to one another. It is undeniable that New Zealand’s repatriation efforts, especially when it comes to the return of ancestral remains, is an unquestionably effective system for indigenous repatriation in a colonized country. The strength of the New Zealand system comes from the following four elements: the establishment and widespread acceptance of the Treaty of Waitangi, the social standing of Māori in New Zealand society, the established partnerships with the museums and local indigenous leaders and community members, and the availability of museum staff and funding to dedicate resources to carrying out repatriation laws. The Treaty of Waitangi has served as the legislative foundation for numerous laws establishing protections and systems for repatriation of remains. The US equivalent, the Indian Citizenship Act, while an important act, has not set the same precedent for protections and reallocation of power to the indigenous community.

It is worth noting that while New Zealand already has a full history of repatriation acts passed, repealed, and rewritten, the United States has comparatively few laws establishing national repatriation programs or providing for Native American burial or land protections. This again reflects the wide difference in the societal standing and power held by of Māori and Native American communities within their respective countries. The United States also has an upward battle when it comes to communicating and working with the appropriate tribal communities, as poor records, large physical distances, and the existence of non-federally recognized tribes all stand as obstacles to thoughtful and effective repatriation. New Zealand is also able to better fund and allocate resources devoted to repatriation through their Te Papa Karanga Aotearoa Repatriation Unit, which centralizes the nation’s repatriation efforts. The United States does not have as robust of a centralized database or system, save for those established through the Native American Graves Protection and Repatriation Act. In conclusion, while the United States has made strides forward in the repatriation of Native remains to indigenous tribes, our legislation and societal push for repatriation still has a substantial way to go. While New Zealand has had its own roadblocks and laws that needed reworking and fixing, they are a leading global force in indigenous repatriation efforts, and should stand as an example of the most effective way to establish and implement repatriation legislation.