A Community Based Approach to NAGPRA Implementation in the Medicolegal System

The Native American Graves Protection and Repatriation Act (NAGPRA) is a federal law that was passed in 1990. For centuries, US government policies had intentionally dispossessed Native Nations of their lands, ancestors, culture, and sovereignty. NAGPRA affirms Native American’s fundamental rights to control their ancestors and material cultural, providing a pathway to claim legal control of ancestors and cultural heritage that has been taken by museums and federal agencies. In the 34 years since the law was passed, it has faced resistance and scrutiny from the museums, universities, and scientists who are meant to comply with the law. The medicolegal system (medical examiners and coroners) is an institution that is subject to NAGPRA’s regulations but has operated outside of the law’s sphere. In earlier research I found that offices in the medicolegal system qualify as NAGPRA reporting institutions and must comply with its regulations (Kleeschulte 2018). Using ethnographic research constructed using Community Based Research Principles, this project seeks to assess whether the medicolegal system, in its current structure, has the capacity to comply with NAGPRA. This research focuses specifically on the process followed by law enforcement and medicolegal offices to respond to notifications of the discovery of human remains, identify whether human remains are medicolegally significant, estimate the ancestry of human remains, and subsequently disposition those remains. Using the results from interviews with medicolegal practitioners in 12 states, the analysis focuses on the variation in state legislation related to this process, and how the presence of legislation for unmarked human burials and remains or the lack thereof influences these processes. The results indicate, that in the medicolegal system’s current structure, there is little space for compliance with NAGPRA, and what space is present is largely due to the presence of a practitioner with anthropological training that has taken it upon themselves to make NAGPRA a priority. The system’s capacity for compliance can increase in the short term with improved scene responses, with an emphasis on preservation in place and better training or reliance on anthropologist for determinations of medicolegal significance, and in the long term with model state legislation that provides uniform protections for unmarked burials and skeletal remains that extends to state and private land, as well as state repositories for non-forensic cases.