By Amanda H. Sorensen, Ia Bull, Diana Marsh, Samantha Lee

Emergent Conversation 21

This essay is part of the series Cultural Rights are Human Rights: Decolonizing Museums through Repatriation and Source Community Partnerships, PoLAR Online Emergent Conversation 21.

Legal and political anthropology can advocate for cultural rights by engaging more directly with archives—the paper, photographs, audiovisual, and largely two-dimensional materials representing the history of colonial extraction—not only as secondary evidential materials, but as primary candidates for physical repatriation. Sovereignty over archival documents secures the “moral and material interests” of community knowledge, language, storytelling, and artistic production. According to the Universal Declaration of Human Rights, return of these materials is crucial to cultural survivance, revitalization, and the “cultural life of the community” (United Nations 1948, article 27). Attending to the repatriation of archival materials, particularly in an Indigenous context, is thus crucial to the principles of article 27; yet, Indigenous contexts for this work also complicates the Declaration’s Western and individualist premise. Considering these Indigenous materials as collections in their own right–documenting shared community knowledge, or even protected or sacred family knowledge–complicates Western-centric notions of authorship and ownership. By looking to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and considering ongoing developments in the archival field, we can potentially push these conversations forward (United Nations 2007).

UNDRIP was officially enforced in the Canadian context by Royal Assent on June 21, 2021 (Department of Justice 2021). This declaration “calls for transformative steps with the ultimate goal of decolonizing Native American archives through healing, reconciliation, and restorative justice” (O’Neal 2015, 17). Ongoing conversations around access and the deaccession or repatriation of archival records with the Indigenous communities who have a stake in archival holdings are gaining momentum in the archival field. Records created with and by anthropologists are an integral part of the process of reconciliation. This call to action was articulated as early as 1978 by Indigenous American scholar and advocate, Vine Deloria Jr. (Krebs 2012, 173), and deserves renewed attention in anthropology today.

Archives and Repatriation

Primary source materials are irreplaceable cultural resources for the communities in which they originated, particularly when they derive from Native and Indigenous communities (Parezo 1999). These communities have been disenfranchised from their own information, data, and knowledge through the evidentiary and collecting practices of historical anthropological researchers, as well as the actions of archives, museums, and other collecting institutions. Knowledge extraction, wherein practitioners collect data for their own uses without appreciation of originating community perspectives or needs to access the data, was frequent in the early years of the discipline (First Archivists Circle 2007; Christen and Anderson 2019, 92-3). This localized information (regarding religious or ceremonial practices, for example) was dispersed to archives worldwide via what scholars have called an “archival diaspora” (Punzalan 2014a), effectively removing archives from the hands of originating communities. Furthermore, anthropologists have at times created field records in the context of assimilation and genocide, or through imbalanced and unethical power relations (O’Neal 2014). These historical factors underscore the ethical responsibility of archivists and data curators to provide community access to archival and unpublished information.

Unfortunately, Native American Graves Protection and Repatriation Act (NAGPRA) laws are generally not applied to archival materials. Repatriation is defined in the United States as “the transfer of all legal rights to and physical custody of Native American cultural materials to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations” (First Archivists’ Circle 2007) with specific mention of “museum collections” (US Senate 1990). However, there exist only a handful of instances where this principle has been applied to archival collections.

Regarding repatriation specifically, UNDRIP (article 12; United Nations 2007) similarly asserts that Indigenous peoples have the right to control “ceremonial objects” and demand the repatriation of “human remains”. Strikingly, this echoes the principles of NAGRPA legislation and bestows priority on museum collections rather than archival materials.

Archives and Secondary Uses in Repatriation

NAGPRA is a US federal law enacted in November of 1990 (25 U.S.C. §§ 3001 et seq.). The purpose of NAGPRA is to “provide for the protection of Native American graves and the repatriation of Native American remains and cultural patrimony” (US Senate 1990). There are four categories of objects subject to the provisions of the Act, including Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. However, it is important to note that the definitions of sacred objects, funerary objects, and items of cultural patrimony will differ according to the Tribe or Native Hawaiian organization involved. Outside of extremely few exceptions, NAGPRA does not apply to archival materials relating to Native American peoples. This includes items such as papers, photographs, and audiovisual recordings.

NAGPRA, while significant, has many limitations. It mandates only federal agencies and institutions receiving federal funding^[1] to return Native American cultural objects to lineal descendants and culturally affiliated Native American Tribes and Native Hawaiian organizations. The Act does not apply to objects held by private individuals and institutions. Additionally, NAGPRA solely covers human remains or cultural objects excavated or inadvertently discovered on federal or Tribal lands, excluding privately-owned or state-owned lands. Only lineal descendants, Native American Tribes, and Native Hawaiian organizations who are currently recognized by the US Department of the Interior may make claims to cultural objects under NAGPRA. Lineal descendants must be able to directly prove ancestry to a known Native American individual whose remains, funerary objects, or sacred objects are being requested.

Proving direct ancestry can be extremely difficult, if not impossible, due the long history of colonization and genocide of Indigenous peoples in North America, including many associated governmental policies of removal, assimilation, and otherwise disenfranchising or disbanding community groups. As of February 2023, the Bureau of Indian Affairs (BIA) recognizes 574 Tribal entities as eligible for funding and services from the BIA (BIA 87 FR 4636) and the US Department of the Interior currently maintains a list of Native Hawaiian organizations that meet the criteria for NAGPRA (US Department of the Interior 2022). NAGPRA generally does not apply to non-federally recognized Native American groups, though there have been a few exceptions. In cases where cultural affiliations are not well-established, the burden of proof for such relationships falls on the Native American Tribe or Native Hawaiian organization, not the federal institution. Additionally, there are costs associated with repatriation and consultation, which are not dictated by NAGPRA. A museum (but not a federal agency) or a Tribe can apply for grants to cover the costs, but funding is not guaranteed. Though NAGPRA has made significant contributions to the repatriation of Native American human remains and cultural objects since its enactment, its limitation to federal agencies and lands render it ineffective in private situations. Moreover, its narrow definition of what objects constitute cultural patrimony renders it useless in the repatriation of culturally significant and unique archival materials. However, recent legislation, including the Safeguard Tribal Objects of Patrimony (STOP) Act, signed by President Biden in 2022 have strengthened NAGPRA. The STOP Act enforces stricter penalties and prohibits the export of sacred Native American objects from the United States. It also introduces a certification process to distinguish art from sacred objects.

As emphasized in a recent volume on Indigenous repatriation, the accessibility of archival sources plays a pivotal role in successful physical repatriation under NAGPRA (Fforde et al. 2020; Fforde 2015). Most NAGPRA claims require significant research involving archival materials to return human remains and objects to their communities of origin. Hannah Turner, a scholar specializing in critical information studies, describes how museum documentation and archival records are used when undertaking repatriation, but they were often created within colonial bureaucratic processes, and are anything but neutral (2020). Archival scholars have long articulated the inherently partial, biased, and power-driven nature of archival records (Jimerson 2009; Gilliland 2011; Harris 2002), as well as their silences (Carter 2006). Despite these limitations, these records retain their indispensable status as documentation and legal evidence crucial for the repatriation of both objects and ancestors.

Archives and Digital Return (in Community Contexts)

The increased accessibility to online and digital collections, and the growth of community-based archives and Tribal heritage centers, have concretely paved the way for the virtual reunification (Punzalan 2014b) of primary sources with users and descendant communities. The wider movement toward “archival returns” and “digital knowledge sharing” initiatives help explain why Indigenous archival collections are now used by community-based researchers as frequently as academics (Barwick et al. 2019; Marsh et al. 2019, 131; Carpenter 2019, 8-9). These collections are now employed for cultural-revitalization initiatives such as artists’ projects, language-immersion programs, and geolocation mapping projects for land claims (e.g., Lowery 2009; Roy et al. 2011; Schweitzer & Henry 2019). Community-driven digitization and digital knowledge sharing efforts increasingly allow archival materials to be downloaded, shared, and remixed remotely, often through community-curated databases.

Particularly noteworthy, Mukurtu—an open-source content management system designed for Indigenous cultural heritage—has empowered many communities to build their own digital collections or community archives. These endeavors often involve combining museum objects and archival materials, effectively merging community-held materials with those digitally reclaimed from colonial institutions (Christen, Merrill, & Wynne 2017). In combination with Local Contexts, Indigenous communities are stewarding these collections under Traditional Knowledge (TK) Labels–alternative, community-based forms of copyright (Anderson and Christen 2019). Since archival sources are crucial for physical repatriation and successful NAGPRA claims (Fforde et al. 2020; Fforde 2015), digital returns are of utmost importance to communities in maintaining and expanding sovereignty over their cultural heritage.

New approaches to structuring information have been developed to improve discovery and access for Native and Indigenous researchers, with the goal of helping communities locate their heritage materials, and facilitate digital returns. Some archives have developed Indigenous subject guides or “LibGuides” that compile information topically by culture or region, and which help community researchers to navigate complex archival collections. However, such subject guides only cover collections at a single institution. This presents a barrier to effective access because communities want (and need) access to all information about their community, regardless of which institution holds the material.

In pursuit of a solution, we have been involved in a project, Indigenize SNAC, to pilot Social Networks and Archival Context (SNAC) for this purpose (Curliss et al. 2022). SNAC is a cooperative initiative that works to allow searching across all archival collections in the US via authority control; SNAC was specifically designed to address the challenge of dispersion across archival collections by connecting and aggregating such distributed historical records.

Archives and Physical Return

In 2006, a group of 19 Native and non-Native archivists, librarians, museum professionals, historians, and anthropologists (called The First Archivists’ Circle) drafted Protocols for Native American Archival Materials. This document outlined best practices for the field regarding the stewardship of Native and Indigenous archival collections. The Protocols advocated for a NAGPRA-like proactive process of contacting communities whose knowledge was represented in PWI (primarily white institutions) collections. This proactive stance urged archives to “Inform Native communities about collections of relevant materials and explain the nature of the materials. Use the model summary or inventory letters required by the Native American Graves Protection and Repatriation Act of 1990, with a follow-up telephone call. More than one contact may be necessary” (The First Archivists’ Circle 2007).

Furthermore, the Protocols also explicitly acknowledged that NAGPRA had not been used to repatriate archival materials. Nonetheless, they strongly recommended that library and archival professionals adopt an approach of repatriating original records under specific circumstances. In instances where records were acquired through theft or deception, or if the collecting institution could not prove “right of possession”, the Protocols advocated for the repatriation of these records. This might even involve legal actions like “Replevin,” which is a process to regain possession of records (The First Archivists’ Circle 2007).

Archival documents, often regarded as secondary evidence, have gradually gained prominence as potential candidates for physical repatriation, reflecting a shifting perspective in this realm (see Marsh 2022). In 2010, “For the first time in the United States under the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), artistic illustrations depicting ceremonies were repatriated” (Colwell-Chanthaphonh 2011, 452; Waldbauer 2010). In another example, the papers of Fidelia Fielding, the last fluent speaker of the Mohegan-Pequot language, were transferred from the Cornell University Library to the Mohegan Tribe (Beduya 2020). However, this transfer was not explicitly undertaken through NAGPRA. Lynn Malerba, a Mohegan Tribe leader, expresses what this return means for language revitalization: “Fidelia’s work is so important in preserving our language and ensuring that it lives on. Her papers coming back to us sends a powerful message for the next generation: Our language is not lost and that they can be part of its restoration” (quoted in Beduya 2020).

Within the archival community, we have seen increasing attention to the potential for other articles in UNDRIP to be mobilized in archival repatriation. For instance, article 31 notes:

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and tradition- all cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 31 asserts that Indigenous communities should possess and uphold sovereignty over their traditional knowledge—such knowledge is often documented in archival documents and audiovisual collections.

In this spirit, the Society of American Archivists took a significant step in 2022. Acting on the recommendation of the Native American Archives Section, they formed an Archival Repatriation Committee. This committee “works to ensure that the organization’s services, activities, policies, communications, and products support the goal of supporting archivists in repatriating and receiving archival materials. It coordinates with various SAA entities, external organizations, and originating communities and monitors, evaluates, advocates for, and reports on matters relating to the repatriation of archival materials” (SAA 2022). The group began convening in Fall of 2022 and is exploring policy and best practices guidance for the physical repatriation of archival materials.

Building Archival Knowledge

There is a strong need for political and legal anthropologists, cultural heritage professionals, and policy writers to not only center human rights in ongoing research, but also to place Indigenous Knowledge Systems at the core of their efforts (O’Neal 2019, 50). Centering Indigenous Knowledge Systems, and their core principles of relationality, respect, responsibility, and reciprocity (Littletree et al. 2020) can begin the process of decolonizing heritage institutions, as well as creative pursuits, project-based initiatives, and the formulation of policies (see Figure 1).

Several important documents have made the role of deaccession and repatriation in this work clear, including the Protocols and UNDRIP. However, discoverability of archival records within colonial institutions is still a critical issue for Indigenous communities, hindering the return or repatriation of archival records. In this regard, researchers and scholars should work to connect collections and communities by cooperating with organizations that are committed to these endeavors, such as SNAC. Further resources include the Traditional Knowledge (TK) Labels (Figure 2), and the Disclosure and Engagement Notices (Figure 3), which can support Indigenous communities and institutions in collaborating and returning archival materials. The Reciprocal Curation Workflow (Figure 4) also provides guidance on how to implement and use the TK Labels. Overall, legal anthropology and political anthropology can support the development of legal frameworks for the repatriation of Indigenous archival materials.

As we have seen, repatriation of archival materials is crucial to protecting “moral and material interests” embedded in community knowledge, language, storytelling, survivance, and the wider “cultural life of the community” (United Nations 2007). However, Indigenous contexts complicate the single-author nature of article 27; we argue that attending to the UNDRIP might better mobilize repatriation efforts outside of NAGPRA contexts. Given the current efforts of the SAA’s Archival Repatriation Committee, we urge anthropologists to support new recommendations, protocols, or even legal frameworks for archival repatriation.

Amanda Sorensen is a PhD candidate at the University of Maryland College of Information Studies where she is a part of the Recovery and Reuse of Archival Data Lab and the Center for Archival Futures. She holds an MA in Anthropology from the University of British Columbia. Broadly, Amanda’s research focuses on cultural heritage databases, museum information systems, and curatorial and material culture studies. She recently worked as an Anne Ray Intern at the School for Advanced Research in Santa Fe, NM, and in 2019, Amanda completed a graduate fellowship at the Smithsonian Institution’s National Museum of Natural History.

ᎠᏴ ᎪᎳᏄ ᏓᏆᏙᎠ. ᏌᎶᎵ ᎤᎾᏓᏢ ᏂᎦᏘᏲ ᎠᏆᎨᎵ ᎨᏟᏙᎯᏃ. ᏃᏊ ᏥᏄᏓᎴ ᏥᏎᎩᏳᏍᏗ ᏥᎦᏚᏩᎩ.  Ia Bull (Gaduwagi) is a queer archivist and scholar. They are a 2nd-year PhD student at the University of Maryland College of Information Studies (iSchool), and a member of the Recovering & Reusing Archival Data (RRAD) Lab and the Center for Archival Futures (CAFe). They have an MLIS (Archives Cert.) from the University of Oklahoma and a BA in Cherokee Language Revitalization from Northeastern State University. Their current work concerns culturally competent information systems for language revitalization efforts. They have been a part of parts projects including the Natchez Indigital Community Archive, Mapping Tahlequah History, and have worked at such institutions as the Helmerich Center for American Research at the Gilcrease Museum and the Cherokee Heritage Archives as an archival professional.

Diana Marsh is an Assistant Professor of Archives and Digital Curation at the University of Maryland’s College of Information Studies (iSchool) and current member of the Society of American Archivists’ new Archival Repatriation Committee. She previously worked at the Smithsonian’s National Anthropological Archives and American Philosophical Society. Her current work focuses on improving discovery of Native and Indigenous collections held in colonial repositories.

 

Samantha Lee is an historical archaeologist studying American chattel slavery. She received her PhD in Anthropology from the University of Maryland, College Park and also holds an MA in Applied Anthropology and an MA in Historic Preservation from UMD. Samantha’s research focuses on enslaved childhoods in the nineteenth century United States and how they may be represented and understood archaeologically.

Notes

^[1] One exception is the Smithsonian Institution, which is covered by the National Museum of the American Indian Act, which immediately preceded NAGPRA, and requires similar actions.

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