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 Implementing NAGPRA Connecting Medical Examiner and Coroner Offices to Tribal Partners

December 9, 2021
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Speakers
        Dr. Veronica Pasfield, Ojibwa member of the Bays Mills Tribal Community;               Reylynne Williams, Cultural Resource Specialist, Gila River Indian Community;               Megan Kleeschulte, M.A., University of Tennessee, Knoxville;               Dr. Ellen Lofaro, University of Tennessee, Knoxville;               Dr. Bruce Anderson, Pima County Office of the Medical Examiner, Arizona
This project is designed to connect tribal partners to ME/C offices to facilitate successful disposition protocols for non-forensically significant Native American remains that are compliant with the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). In order to facilitate tribal-ME/C office partnerships and NAGPRA implementation, the investigators, in partnership with the tribal partners, propose to offer their repatriation, osteological, and curatorial expertise to ME/C offices to help complete inventories of remains that fall under the jurisdiction of NAGPRA, initiate consultation, and provide repatriation education and training.

The data collected through these collaborative efforts will be used to construct a national database that details the medicolegal system in each state, identifies NAGPRA contact information for each office, what offices hold Native American human remains, and the contextual information associated with them. The database will also include NAGPRA “tool-kits”, resource documents designed for medico-legal practitioners that will provide easy, go-to guides for NAGPRA compliance that are state specific. The tool-kits will be tailored to the input from the tribes located in each state, the state’s ME/C structure, as well as each state’s laws for the identification and disposition of non-forensically significant remains. The database as well as the tool-kits will first be constructed for and piloted in Arizona, Florida, North Carolina, Michigan, and Tennessee. Ideally, the database will give tribes the information and tools necessary to decide how and when they would like to make NAGPRA claims. Ultimately, the study’s deliverables and findings could help ensure the medicolegal system upholds their responsibilities established by federal laws for repatriating non-forensically insignificant Native American remains in their possession.
  
  
          Transcript
DARYL FOX: Good afternoon, everyone, and welcome to today’s webinar, Implementing the Native American Graves Protection and Repatriation Act (NAGPRA): Connecting Medical Examiner and Coroner Offices to Tribal Partners, hosted by the National Institute of Justice. At this time, it’s my pleasure to introduce Christina--Christine “Tina” Crossland, Senior Social Science Analyst within the National Institute of Justice for some welcoming remarks. Tina?

CHRISTINE CROSSLAND: Thank you. Welcome, everyone. And thank you for joining us and sharing the space for what I think will be a great presentation and discussion on a very important topic. As Daryl mentioned, my name is Christine Crossland, but many folks know me as Tina. I’m a federal scientist at the National Institute of Justice or what most people refer to as NIJ. Presently, I’m directing NIJ’s violence against women and family violence research and evaluation program, as well as a portfolio that focuses on tribal crime, justice, and safety. For those of you who may be less familiar with the institute, our work focuses on advancing technology for criminal justice application, including law enforcement and corrections, forensics, judicial processes, criminology, criminal justice, and related social and behavioral research science. Much of the research is facilitated by providing grants to academic institutions, nonprofit research organizations and other entities, and collaborating with state, tribal, and local governments. Ultimately, we try to bridge gaps that can exist among different worlds and build connections and solutions.

Today’s webinar is spotlighting one of NIJ’s tribal research or capacity building grants, a program NIJ implemented in 2018. The program was developed to build an increased capacity to conduct rigorous research and evaluation projects by promoting engagement between researchers, tribal nations, citizens, and stakeholders. This program encourages engagement partnerships and collaborations that address the most relevant issues to our tribal partners. Before I hand things over to Megan, I did want to display our standard disclaimer indicating that today’s presentation, comments, opinions, and discussions are those of our presenters and do not necessarily reflect those of the department. And with that said, I’d like to hand things over to Megan.

MEGAN KLEESCHULTE: Thank you, Tina. I want to welcome everyone and thank you all for attending. Today, we’re going to be discussing, as Tina stated, our grant and the project that falls under the grant. The panel that we have today represents a collaborative partnership that we have developed throughout the grant between Dr. Lofaro and myself from the University of Tennessee, Dr. Bruce Anderson from the Pima County Office of the Medical Examiner in Tucson, Arizona, Veronica Pasfield from the Bay Mills Indian Community, and Reylynne Williams from the Gila River Indian Community. Before we do introductions, I just want to thank every--again the panelists for being here. This is a really exciting project for us to be a part of, and as we’ve been working through the project, it’s been fantastic to see how the partnerships have developed and how that has kind of spurred the research forward. So, we’ll go through introductions first and then we’ll kind of get into a discussion of the projects, what we’re working on, and the law as a whole. So Reylynne, if you want to introduce yourself?

REYLYNNE WILLIAMS: Hello, everybody. My name is Reylynne Williams. I’m the Cultural Resource Specialist for the Gila River Indian Community Tribal Historic Preservation Office.

DR. BRUCE ANDERSON: I’m Bruce Anderson, one of three forensic anthropologists at the Pima County Office of the Medical Examiner in Tucson, Arizona. In 30 some years after NAGPRA was passed, we’re still trying to figure out the best way to use that program with some of the cases that we acquire.

MEGAN KLEESCHULTE: And Ellen?

DR. ELLEN LOFARO: Hello, everyone. Thanks so much for joining us today. My name is Ellen Lofaro, and I’m the Director of Repatriation at the University of Tennessee.

MEGAN KLEESCHULTE: Okay. Veronica, are you okay?

DR. VERONICA PASFIELD: I’m Veronica Pasfield. I’m a NAGPRA officer for my tribe, Bay Mills Indian Community. And I’m the NAGPRA alternate behind my cousin, Paula Carrick, who’s our Senior NAGPRA Officer.

MEGAN KLEESCHULTE: Okay. So how the--how the rest of the presentation is going to work. Veronica’s going to serve as our moderator, and she has some questions prepared for us. Some will be a bit more slide heavy, and then we hope to really get into more of a group panel discussion for some of the most important topics that we decided to share with all you attendees. So Veronica, if you want to start us off.

DR. VERONICA PASFIELD: Yeah. And you can hear me now okay, right?

MEGAN KLEESCHULTE: Yes.

DR. VERONICA PASFIELD: So first of all, I just want to say [SPEAKING IN NATIVE LANGUAGE] to everybody who’s attending here, as well as the National Institute of Justice and any grantors because NAGPRA is such a critically important law. It was framed by Congress as human rights legislation. And I feel that everybody on this call and anybody who’s attending is really taking that mandate from Congress really seriously. So, just wanted to start by saying [SPEAKING IN NATIVE LANGUAGE] and all right. So we’re going to start because we’re gonna assume that you guys, anybody on this call doesn’t necessarily know what NAGPRA is. So let’s start with that question, what is NAGPRA?

MEGAN KLEESCHULTE: So NAGPRA, the Native American Graves Protection and Repatriation Act was put--was passed by Congress in November of 1990. So it’s actually a very fitting month that we’re having this panel. Like Veronica mentioned, it’s mainly considered and most importantly, considered human rights law. But I think the quote that’s on the slide to the left really encapsulates that. So it says, “In the larger scope of history, this is a very small thing. In the smaller scope of conscience, it may be the biggest thing we have ever done.” And this really exemplifies the fact that I think by and large this would fall under the umbrella of federal legislation that not a lot of people are very aware of, but also the fact that, like other--it fell under the same umbrella as other legislation passed by Congress.

But if we’re speaking about the significance of the law and the impact that it’s had, especially for tribes, it’s really landmark legislation in that sense. And the law is passed--was passed in response to really centuries of disrespect and ill-treatment of Native remains, burial grounds, cultural objects, all taken without permission, and housed in mainly museums and universities across the country. And the laws in response to that treatment of those remains, but also the fact that for many years, it was federal legislation that was supporting these acts, and supporting the fact that it was okay to excavate these sites and to take these remains and objects and put them in museums and universities for study in a sense that treatment was much different than the treatment that was put towards Caucasian or white cemeteries and remains. And so really, the law is addressing the disproportionate treatment of those remains and objects versus those of white individuals. And so, in the most foundational sense, the law requires that federal agencies and museums repatriate these remains and objects that they have in their possession. And repatriation means that these agencies and museums have to go through a process called cultural affiliation, which we’ll describe a little bit later, meaning that they have to identify which tribes that these remains or objects belong to, and then they have to consult and work with these tribes to get the remains back to the groups that they belong to so that tribes are able to rebury the remains or incorporate the objects back into their communities in the way that they see fit.

And we can move on to the next slide real quick. Thank you. I like to break the law down into three basic parts. There’s a lot more to the law, but we don’t need to get into all of that today. Part one addresses what we spoke about previously so it’s really the repatriation of these items, both remains and cultural objects that are currently in the possession of museums, universities, other federal agencies. And again, we’ll break down this definition a little further, but basically it requires individuals that fall under that designation of federal agency or museum to abide by this process. The law is very specific about how this should be conducted. So this includes, again, completing an inventory of those remains, or a summary of the objects, and completing both of those in consultation with tribes that might be affiliated with the remains, establishing cultural affiliation, or identifying that maybe, at the moment in time, affiliation cannot be established for those remains or objects, and then submitting notices and inventories to the National NAGPRA Office that are then published on the federal register so that they are public and publicly accessible for both tribes and other museums, looking to make claims or to see which--what remains and objects are present around the country.

The second part of the law deals with ownership and control of all Native American remains and objects that are found on federal and tribal land after the law was passed. And what happens in terms of new discoveries or inadvertent discoveries after 1990 and the responsibilities of, like, archaeological excavations, or again, accidental discoveries, and things like that. I mean, it’s important to know that as a federal law, NAGPRA only applies to remains and objects that are found on federal and tribal land. It does not apply to private land. And that is an important distinction that kind of dictates which remains actually fall under the law.

And then the third part, which we won’t really talk about today, but it is important to acknowledge, deals with trafficking of Native American human remains and cultural objects, more importantly, without the consent of tribes or next of kin. So this applies with museums transferring objects between museums without permission from the tribes that they belong to, but also the movement of objects from like private collectors and things like that. There’s also a section that stipulates the civil penalties that are associated with noncompliance with the law, meaning agencies or museums or universities that are again found to be in noncompliance with the law, how that noncompliance is reported. But then also the monetary penalty that is associated with that. Again, that’s something we won’t really get into today. But it is important to acknowledge that there are consequences for not complying with the law’s mandates. All right. If you--next slide, please.

DR. ELLEN LOFARO: So, one of the hang-ups we’ve realized that in working with a number of different medical examiners and coroners’ offices is the first issue of this word “museums” because they don’t consider themselves museums under a standard definition, understandably. I really wish in some ways the law had stuck with the word “institution” because I think that makes it a lot clearer. But specifically, the law says that any institution or state or local government agency, which includes institutions of higher learning, like universities, that receives federal funds, and has possession or control over Native American cultural items, which is defined to include Native American human remains, must comply with NAGPRA. And that federal funding piece also includes state or local pass-through funding. And Bruce can touch on that a little bit more too in the future. But these two pieces, if your ME/C office is in possession or control, even if it’s joint possession or control of Native American human remains, and at some point you’ve received federal funding or pass-through funding in some way, you are subject to NAGPRA. Next slide, please.

NAGPRA is civil legit--civil legislation, excuse me. So obviously, if you have a criminal case that is ongoing, NAGPRA does not apply until elements of that criminal case are closed. Once it falls under the civil part of the law or forensically nonsignificant with some of the wording too, at that point, usually state or local laws apply. But because NAGPRA is a federal law, NAGPRA actually takes precedence over the local state laws. So you have to be really careful. Part of this project has been really trying to dig into local and state laws in different areas, so as to best help offices and tribes really figure out the best way to proceed with the NAGPRA process. I think--let’s see. I think--I think that’s actually all I’ll say. I think I’ll turn the mic back over to Megan right now, so...

MEGAN KLEESCHULTE: Thank you. Now Veronica has a couple questions prepared. We’re going to move into a bit more discussion based, move away from the slides for a bit to kind of include the rest of the panel members. So Veronica, if you want to take it away.

DR. VERONICA PASFIELD: Yes. So you guys did a great job of covering the law for sure. And I think that we have also experienced here in Michigan, kind of a shock that from MEs and coroners’ offices that they are considered a museum under the law. So sometimes that can definitely slow, you know, compliance and really understanding, and also the issue of federal funding, you know. So, as you said, pass-through funding is a really common misconception that we’ve heard of here. So I appreciate those. I can--I’m just validating that this is--this issue is real where I live. So something that is--that is seems to create a lot of drama for anybody implementing NAGPRA is the issue of establishing the criteria for cultural affiliation. So I have found a set of remains, even if they’re contemporary and I know that they are Native American, right? There are metrics for these things within osteology, for example. How do we establish cultural affiliation? How do I know who they go back to, really is what people are asking. And sometimes they--there’s anxiety about doing it right or doing it wrong.

MEGAN KLEESCHULTE: I’m going to just briefly touch on what the law defines cultural affiliation as and then we’ll kind of hear from the rest of the panelists how this actually plays out in practice. And I think people who work with the law will say very regularly that there’s a difference between what is written in the law, what the law expects when it comes to cultural affiliation, and then how that process actually plays out in practice. And I think this is something that’s going to be really important moving forward as we’re working with medical examiner and coroner offices, because this is a very new idea, but also just a new kind of a level of training that might not be that medical examiner, or coroners, or other medical legal practitioners may not be very familiar with. So in the law stipulations, in order to establish cultural affiliation, there’s nine line--10 lines of evidence that can be used. And these include linguistic, folklore, oral, traditions, archaeological, anthropological, geographical--oh, I think I’m forgetting a few. Other expert opinion. There’s few others.

But basically, the law is requiring that universities, museums, and other institutions that are engaging with NAGPRA use the information currently at--in their possession, and a preponderance of that evidence. So whatever a majority of the evidence is telling you in order to establish cultural affiliation. And so this is somewhat vague, preponderance isn’t necessarily defined what that actually means in practice is not necessarily defined. So it can be a somewhat confusing process to engage with. Also how to weigh--the lines of evidence are supposed to be weighed evenly if you have them, but again, trying to weigh what the--and sometimes those lines of evidence can be conflicting. And so, again, looking at what information you have in front of you and then consulting with tribes as you’re going through this process. Again to establish cultural affiliation is what the law dictates, but again as we had stated, I think that sometimes does not happen exactly this way in practice. And so, Ellen, I don’t know if you want to touch on pieces of that as well in terms of the collections at UT or...

DR. ELLEN LOFARO: Sure. I think I’ll just briefly say that actually one of the things I think makes--that makes NAGPRA the most successful is building relationships, and doing that, and so starting that consultation process early while you’re working to establish those lines of cultural affiliation and creating these ongoing relationships. And I know that can be hard getting started but I think that’s important, and I think the longer and the more you spend talking with people and different tribal representatives, and different folks in your area, I think the better understanding you can get, like, of the process and how to move forward and how to make things work, so...

REYLYNNE WILLIAMS: If I can jump in, this is Reylynne. So establishing cultural affiliation, you know, from a tribal perspective is we consider the geographical location where the ancestors were encountered and--or recovered. Because we know in the state of Arizona, there’s a lot of prehistoric sites and a lot of land--different land jurisdictions, you know, from the state, county, federal, tribal, and even private land. And so, it’s one of the big things we consider as geographical that will determine how a tribe is culturally affiliated. And although, you know, with Arizona state law, the Arizona Antiquities Act and the Arizona burial discovery laws that are in place, it does direct you in how to contact the right tribal group. And it’s--like Ellen said, it’s important to reach out to the tribal communities and to identify--have identification for the ancestors for repatriation.

DR. VERONICA PASFIELD: I’d like to add just another layer to all of the great things that everybody has said so far about this. This has been a real thorn in our side in Michigan as well, right? So two things to really keep in mind it’s at--NAGPRA’s actually quite simple when it comes to cultural affiliation, as long as you have a sincere wish to comply with this federal law. Can you exploit all of the little gray areas? Yes, and many universities have done that. So when NAGPRA was passed in 1990, there were 200,000 known ancestors in institutions around the United States. Thirty years later, okay, so I want us all--Reylynne, I don’t even--I have no idea how old people are on this call, but I’m going to tell you, I was a lot younger and a lot--a lot skinnier 30 years ago, right? I was a kid come fresh out of college, right? Thirty years is such a long time. It’s a whole lifetime, your entire adulthood. So 30 years later, we still have 122,000 ancestors, known ancestors that are in museums, as defined by the law. So in 30 years, we are less than halfway there, right? And so I would like to end the century with this law having proper awareness and compliance.

So here’s how--I just want to offer this practical thought, that the law asks that in terms of culturally affiliating that it is more likely than not, the 51% rule, that a set of human remains are affiliated to a certain tribe. It does not ask for scientific certainty. So that’s really important to know, you know, that that can be done, but it is not required under the law. And then it says that to culturally affiliate that you use the information that you have, and if the information that you have, however scanty it may be, indicates that something is--somebody is affiliated to a certain tribe, then that’s all the evidence that you need. It does not require some big research endeavor to prove that as well. So just wanted to reassure people on the call that it’s quite simple, and that if there is a dispute between what the tribe thinks and what you think, the law is supposed to lean in favor of tribes, because it is tribal human rights law. So just wanted to cut right to the bone of the low bar of what’s really required for that.

MEGAN KLEESCHULTE: And this is something, like I stated before, that I think will be probably the newest piece for medical examiner and coroner offices. But I--speaking from experience, but also I think Bruce can speak to this as well, it is something that is very doable for these offices. As Veronica was saying, it only requires the information that is currently within your possession, and if remains that come into you, you probably know at least a geographic location that they have been recovered from. And so Bruce, actually, if you want to speak to some of the cases that you’ve received in your office and some of the information that you had associated with them, just to give the attendees an idea of the types of cases that might be coming in to a medical examiner or coroner’s office?

DR. BRUCE ANDERSON: Sure, let me--let me first say that I’m a medical examiner and coroners’ offices are not museums. We may be considered that but unlike museums whose goal it is to collect and display, it’s just the opposite of what we do here in the ME/C world. We’re tasked with determining cause of death, manner of death, and assisting in the identification of a person. So I think--I speak for our office and I think I speak for most ME/C offices that we don’t have the same kind of outlook as museums do. We also don’t have large collections. I know our office has a dozen or so, many are just single bone, maybe a cranium, maybe a long bone that are believed to be Native American and with some antiquity. So we differ from museums in that regard too.

Clearly, the best way to determine if you’re dealing with Native American remains is, as Reylynne said, is its location. A burial that washes out from a--an inhumation that washes off from an old burial ground on known--on a known prehistoric site here in southern Arizona, that’s the best evidence. We could put calipers and eyeballs on the skull of a--of an individual and make a determination--make a determination that this person is most likely Native American, maybe even get that down to the tribal level. But as Reylynne says, that may not convince the tribe. So, location by far is the best way to make that determination. That presents a problem when police confiscate from homes, the attics of homes and swap meets, when they confiscate human remains. And they usually bring them to us, and while we can decline jurisdiction, if we can tell before any analysis that these are most likely remains are going to fall under NAGPRA, many times we do take remains in like that. And we did from 1965 to about 2005, we took in remains. By we, I mean the office of the medical examiner.

Now, there was a time in the ‘80s, ‘90s, up until about 2005, even before NAGPRA was passed, that my predecessor, the late Walter Birkby, who was not only the forensic anthropologist for this office, but he was also curator of physical anthropology for the Arizona State Museum. So Dr. Birkby would advise--would examine these remains, advise the medical examiner that they should decline jurisdiction, which means that these remains have no medical legal import. And he would retain and we still have retained some of those remains. When NAGPRA passed, probably took about a year. So between ‘91, ’92, and about 2005, Dr. Birkby and his graduate students that would take these remains over to Arizona State Museum for the NAGPRA office and they would, as a courtesy, do the paperwork and put the remains on the register. That stopped in about 2005, it stopped in Arizona and I know it stopped in Michigan about the same time. And we were told by the museum here in Arizona that it was our responsibility because we accepted federal funds. I’m not sure we accepted federal funds by 2005, but clearly, by 2010, we had. So clearly by 2010, we were on the hook, the Pima County Office of the Medical Examiner, to return not only remains that might come in currently, but any of the remains that Dr. Birkby had collected over the past decades. So we have--this office has complied a number of cases under NAGPRA to try to turn the remains over to the tribe.

The last thing I’ll say about that is my impression is that the tribes are not as interested in a single individual or a single bone from a single individual as they are museum collections. So we’ve not been very successful in using NAGPRA to return these individual cases. Which is why when Megan approached me four, five, 10 years ago, whenever that was, Megan, and thought that there might be a better way for ME/C offices to communicate with the tribe, tribal authorities, I was all in and so, yeah, I think I’ll leave it there for now.

MEGAN KLEESCHULTE: All right, Veronica, do we want to move on to the next question?

DR. VERONICA PASFIELD: Yes--and, yeah, there’s so much--that’s such a great summary. Sorry. You just really got me thinking, Bruce. So here’s our next question, is antiquity required for NAGPRA to apply? And how does that issue of antiquity relate to remains that are most likely to appear in any coroners--in any coroner system?

MEGAN KLEESCHULTE: Ellen, do you want to touch on this?

DR. ELLEN LOFARO: Sure, I’ll just say briefly that antiquity does not matter in NAGPRA. So they can be a modern Native American individual or they can be an incredibly old Native American individual. For an ME/C office, again, it matters whether or not they’re caught up in a current criminal investigation or case. It’s when that case becomes civil, that NAGPRA as a civil statute applies. And I’ll let the rest of our panelists touch on some of those other parts of the question.

DR. BRUCE ANDERSON: Yeah, let me make a quick comment. We currently have two cases, one from La Paz County, Arizona, one from Pinal County, Arizona, where we’ve identified two people, different people. And each of these people were tribal members from two different tribes. So these are current cases, one’s a homicide of a young woman. And these are cases that were identified through DNA analysis. So the families participated for that DNA comparison, the families know that the identification was made, at least in the government’s eyes, but the families have disengaged from the process of having the remains returned to them. Or at least they’ve disengaged from contacting a funeral home that could then contact us. So we’re right now currently pursuing whether or thinking about whether or not we should try to under--maybe first, just through the tribe, but eventually under NAGPRA, try to get the tribes involved in these two cases, to see if they would either want to try to contact the families or maybe accept the remains on behalf of the tribe.

REYLYNNE WILLIAMS: And I want to chime in here. The four Southern Tribes of Arizona, Ak-Chin Indian Community, Salt River Pima-Maricopa Indian Community, the Tohono O’odham Nation, and the Gila River Indian Community, we first learned of this research project when they came to--with Pima County to one of our meetings to discuss how NAGPRA applies to Native American remains in the medical examiner’s office. And this was--I have to be honest with you all that this was a very eye-opener situation because we, our offices, were so focused on the archaeological encounters in inadvertent discoveries of our ancestors that we never really thought that the ancestors, you know, would be in the hands of the examiners’ and coroners’ offices. And so that got us to thinking that in the situation that Bruce has discussed and various capacities, how they receive the ancestors, that we have to take that into consideration of they could be more recent individuals who families are unknown. And so that puts the responsibility on the tribes to repatriate those ancestors in any way. And if it goes through the NAGPRA process, and I think our relationship with Pima County medical examiner’s offices has been established. And we are, you know, working with Bruce, if he has any future encounters, you know, we will be there to work with Bruce in all these matters.

DR. VERONICA PASFIELD: And just so you know, Reylynne, I mean, here in Michigan, I can’t--I mean, this has opened up a whole new category for us too and I’m sure that some of the--some of our NAGPRA officers in Michigan, you know, have this already established and have already worked on this, but I know for sure that many of us have not. And like you said, I mean, when you’re going after, I mean, I was--I was one of the lead NAGPRA reps for the University of Michigan, which had 1,500 of our ancestors. There are over 9,000 ancestors in--at Ohio History Connection, at Illinois State Museum. You know, I don’t even know how many Berkeley has. So, the scope of the--of the--of the issue that we’re trying to address is so massive and our offices are so tiny that sometimes that, you know, it just breaks your heart to know that some of your relatives are in places that you never even thought of. You know, especially now, you know, when you think about all the things we’re trying to do in terms of helping our children who are in unmarked graves at federal Indian boarding schools and religious church-run boarding schools, you know, missing and murdered indigenous women. I mean, it’s a lot and it’s all happening now. So, it’s a time of great awareness, but it’s a time of a lot of work, too. Are we done talking about that? You want me to--you want me to bring up our next question?

MEGAN KLEESCHULTE: Yeah. That sounds good.

DR. VERONICA PASFIELD: Okay. I’m wondering if you could just speak a little bit more directly to this issue that Ellen touched on a little bit, so that people on the call really feel that they have a grasp of the process. When in the process does NAGPRA come into play and how? When we move from that criminal part of the process into the civil part, which is where NAGPRA law is, could you speak a little bit more to that so the people have clarity?

MEGAN KLEESCHULTE: Sure. To kind of lead us in to that, I’m going to just touch on, if we could hop to slide 10 real quick. I’m just going to touch on kind of how we identified this issue really briefly and then also the status of NAGPRA as it stands right now in medical examiners’ offices, that way we can touch on when exactly it comes into the process. So back in 2018, we did a nationwide--somewhat nationwide survey of medical examiner and coroner offices. The survey was distributed through the National Association of Medical Examiners’ offices but then also various state medical examiner and coroner officer associations through their mailing list or through their member list and things like that. And basically, the survey was asking medical legal practitioners how familiar they were with the law, with--if they were at all. And then where they learned about it, if they believe they have--it applied to their offices and then we asked about caseload. So, how many cases offices were receiving on average a year? How many of those cases consisted of skeletal remains? How many of those skeletal remains were then determined to be historic in nature? So, not requiring any further forensic investigation. And then how many of those historic cases or historic remains were then determined to be of native ancestry? And by what means they made that determination.

Basically, again, to just get an understanding, one, of how many medical legal practitioners were aware of and familiar with the law if at all, but then also to start to get an idea of the numbers across the country of these remains of how many native remains might be coming into the medical legal system each year. And so, the map here just shows kind of the spread of our response rate. So, the darker blue is a higher response rate going to the lighter blue, which is a lighter response rate. I do want to note that we did not receive really any responses from the Midwest region, an area where I think that this issue is probably rather prevalent. I’m not sure why we didn’t get responses from there, but I think it is something important to touch on.

If we could hop to the next slide real quick. Briefly, there was kind of a spread amongst our respondents, so about a little less than 50% said that they were aware of the law and then about the other half said that they were not aware. But then more importantly, of the respondents who said that they were aware of NAGPRA, that they had learned about it at some point, either in their education or through a coworker or even from the media in some shape or form, about 62% of those individuals said that they believed that NAGPRA applied to the medical legal system. So those that were aware, a majority of them believed that its application should be happening within the medical legal system. We hop to the next slide real quick. But then of those respondents, only a handful said that their office had, like, official offer--office-sponsored protocol for the disposition of these remains. And then 30% said they had an unofficial protocol, so not necessarily written in standard operating procedures or an understood protocol from the office, but just something that was kind of understood that that’s how those remains were handled. And then about 29% said that they had no protocol whatsoever for the disposition of these remains. If we could hop to slide 14 real quick.

So then of those people who said that they had an official office-sponsored disposition protocol, we asked what that protocol consisted of and these were the responses that we received. So by and large, individuals were either--individuals in these offices were either transferring the remains to a university, a museum, or some sort of like historic preservation office, or they were contacting or giving them to archaeologists. So, by and large, they were being transferred to another entity for them to handle the remains. A few offices said that they notified local tribes. A few said that they passed them on to a forensic anthropologist. Some reported that they were using them for educational purposes or giving them to universities to use for educational purposes. No office reported that they followed NAGPRA protocols, not a single office that was their reported official office protocol, even though a majority of the respondents who knew of the law reported that they believe it applied to their system. So, there was some sort of disconnect there. And really it was this disconnect between knowing about the law, thinking it applied to the system, but then not really having any sort of official office protocol that followed NAGPRA that really got our interest in this project and really got us thinking about exactly what Veronica asked--where exactly does NAGPRA come into play in these offices, at what point, and how should it be carried out?

If we could hop back to slide 13 real quick. I do want to acknowledge though, like Bruce said, that the Pima County Office of the Medical Examiner has followed NAGPRA by its actual protocols and submitted notices of inventory completion to the Federal Register and has actually repatriated cases. And then the San Bernardino County Sheriff’s Coroner Office has also filed a notice and followed through NAGPRA protocols. So, there has been a few instances where individuals have flat out told us we are not a museum, NAGPRA does not apply to us, we are not going to follow these regulations even though it is very clear that it does and this just provides more proof. This is precedent that the law does apply to these offices. The NAGPRA office would not have these offices submit notices, complete inventories, file things on the Federal Register if the law did not apply. It’s a lot of work to go through this process and so they wouldn’t just be having offices or institutions that the law did not apply to going through the process. So I do want to point that out, that there is precedent for this law applying to these offices and following the process. And there’s also evidence that it can be done. It can seem overwhelming at first, but it is possible with the right resources and like we mentioned before, going through the consultation and communicating with tribes and building these relationships. So, I just wanted to mention all that before as kind of a precursor to Veronica’s question.

DR. ELLEN LOFARO: I just wanted to say briefly too, if you either work for an ME/C office or you’re just getting started with this process or for another institution and realize that, like, also you are either newly NAGPRA compliant or that’s something you’re beginning to work on, one of your best resources is the National NAGPRA Office. Melanie O’Brien and her staff are very helpful. We’ll make sure we pass along their contact information in the handout and we’ll try to put it in the chat as well. But reach out to them for just advice. All of you can do this. The process is pretty simple and we’re here to try to help, like, that’s really part of this project is trying to facilitate those connections and making sure that when we--when these ME/C offices and other institutions get to the point where we’re trying to complete the NAGPRA process that it moves forward, so...

REYLYNNE WILLIAMS: I just wanted to comment that the San Bernardino County Sheriff Coroner Office, they went to the NAGPRA Review Committee, and this was back in 2017 where they could not identify a most likely descendant for the--it was to--I’ll just--I’ll--partial ancestral remains that were part of individual’s collection that was handed over by anthropologists to their office. And so, they went before NAGPRA Review Committee with--that they were not able to identify a likely descendant and they didn’t know where they came from and that they were requesting guidance from the review committee for internment. And they have--it was reported that they had their own cemetery that they can reenter, and that they asked the local tribe if they can help the sheriff coroner’s office with the reburial of the ancestors. And that is public information and that can be found on the National NAGPRA Review Committee website, if you want to review what--how they went to the community--committee and then also to find their register notice.

DR. VERONICA PASFIELD: It’s tough. And I actually have a couple of things I’ll load into the chat in terms of hyperlinking you on one of the questions on the chat, but also to the NAGPRA Review Committee proceedings if I can jump over there, if I get a chance while you guys are talking. So, we also know that if we don’t have tribal colleagues on this webinar right this second, which we probably do. This will--because this is recorded, I know that this webinar will circulate. So, advice from those on the panel about things for tribes to consider when their relatives are found in unexpected places. Thinking about state law, making sure you have contact information on that--on the Names, the N-A-M-E-S database in your work. Tennessee, if you could speak to that a little and I’m going to put some things in the chat while you’re talking.

MEGAN KLEESCHULTE: Reylynne, do you want to touch on this real quick or...

REYLYNNE WILLIAMS: You can go first, Megan.

MEGAN KLEESCHULTE: So, I think when it comes to advice for people or especially offices beginning to engage in this process, really the main thing is what we touched on before is starting to build relationships. This process will be significantly easier and way more productive and successful when you’re engaging with tribes, working on consultations together, getting advice from tribes, and things like that. I also think it’s important to remember that this is also something that tribes might be engaging in for the first time like Reylynne mentioned before. This is not a venue that tribes are necessarily used to navigating and so, on the other end of the spectrum, navigating the ME/C system, the medical legal system, can also be new and confusing for tribes, especially when we’re talking about different state laws, different state structures, and things like that.

And so, I think moving forward it’s important to acknowledge that there is new elements of this for both sides. And that there is going to be a bit of a learning curve as we are working on implementing--successfully implementing NAGPRA protocols within the system. And so, when you’re reaching out to tribes, you may not get a response immediately about a consultation or advice or building a relationship. And so I think there’s a level of patience that is required here and again, just going in with an open mind and being prepared for open and transparent discussions about the remains that offices have, how did it come into your possession, what has been done to the remains since they’ve been in the office’s possession, and then also going in with flexibility and understanding moving forward when it comes to working on repatriations and things like that. And so, that would be my advice moving forward from what we have experienced and learned so far working on this grant and this project.

REYLYNNE WILLIAMS: And to add, so where do you find contact information for tribes there? I would contact National NAGPRA, the program manager, she has the updated list of all the tribes in the contact information of whose responsibilities are in the NAGPRA. You can also go to the Native American Tribal Historic Preservation Office, the NATHPO. They have a listing of all the tribal historic preservation officers for the tribes. And another resource I feel that is really great is the NAGPRA Community of Practice. They also have contact information for the tribes who handle NAGPRA and those are your great--best resources so far.

DR. BRUCE ANDERSON: Let me just say there’s another big list and NIJ has a list of every medical legal coroner authority in the United States. So, under the Names Program, those are complete with names and phone numbers and email addresses. So, we’re presently trying to work with NIJ to get that list to Megan, so Megan can make the best use out of it.

DR. VERONICA PASFIELD: Yeah, and I mean, I think, you know, to Bruce’s point and again, I--this is an insanely busy time for tribal reps. So, if any of you are on here, I get it. But, you know, there’s--we don’t have to wait for the ME/C offices to contact us, right? We can contact them as well. So, just putting that out there. I’m going to put it in the chat as well. This is the NAGPRA Community of Practice group of NAGPRA practitioners around the country, tribal and museum oriented, so there’s contact information on this website as well.

MEGAN KLEESCHULTE: Well, we also wanted to leave some time for questions from the attendees, so we’re happy to field those now. I know some people put some questions in the chat also so we can try to address those here. But yes, if you have questions for us, you can put them in the chat as Tammy just said. Or in the Q&A section. I’m sorry, not the chat.

DR. VERONICA PASFIELD: So I’m looking at the Q&A stuff. I completely forget. Should I throw these out to the group or...

MEGAN KLEESCHULTE: Sure, Veronica, you can.

DR. VERONICA PASFIELD: Okay. Thank you. Okay. So here’s our first question that came in. “Dr. Anderson, that’s a very interesting take on NAGPRA applying to modern native remains. In our CME office, we might not have thought of this route and handled this as--and instead handled it as an indigent, unclaimed cremation. Is that--does that resonate with you?”

DR. BRUCE ANDERSON: I’m glad to hear that because let me repeat that ME/C offices are not museums. We’re not collectors and displayers. We’re a government agency that’s supposed to come up with a cause of death, manner of death, and the identification of an individual. And once those three are completed, then it’s our--it’s our goal to return the remains to the family. If the family can’t be found, then a tribal authority would be the next best thing.

DR. VERONICA PASFIELD: Okay, next question.

DR. ELLEN LOFARO: And I just wanted, sorry, to point out quickly that again, if you’re following those procedures for unclaimed burials, which are likely local or state laws. If those individuals are Native American, if you think there’s a possibility more likely than not they’re Native American. NAGPRA as federal supersedes those state and local regulations. Sorry, Veronica.

DR. VERONICA PASFIELD: Thank you for saying that. That’s so important. Okay. Next question, I want to really try to get to all the questions, so I’m going to move through them like pretty quickly because there’s some great stuff on here. “As you’re attempting to full--to fulfill the NAGPRA process and are inviting tribal partners to consultation, how pushy is too pushy to get to push the NAGPRA officers to respond with either an affirmative or declination to attend?” Okay. Let me just quickly say this. That actually, tribal historic preservation--this is a common thing too, that people don’t know. Tribal historic preservation officers often are also the NAGPRA officers. But the Tribal Historic Preservation Act is not the relevant law in this case, just so you guys know. So I just wanted to add that little tip in there because sometimes it’s confusing. Okay. So how pushy is too pushy? Which, I love this question too because it’s just such a nice way to say, “What if tribes are nonresponsive?” I’m just gonna say it, because I’m a tribal rep. So and I know how that can be sometimes. And so can someone speak to that?

REYLYNNE WILLIAMS: I think, you know, all the tribes, we’re all very busy. You know, and we do receive NAGPRA letters, correspondences throughout the year from various institutions and museums. And even I myself don’t respond to them right away, because they are answered in the way that they’ve been received. But if you don’t want to seem pushy, maybe a phone call after the letter, you know, just to ensure that they’ve received your letter, that you’re very interested in returning, you know, the ancestors and starting consultation, I believe might get it on their radar. Because it’s very difficult to juggle all the NAGPRA consultations with museums and institutes--institutions, and especially now with COVID. It’s very difficult because some of us are working from home or in and out of the office, so we may not be reachable via telephone. But if you, you know, try maybe once or twice, I don’t know. It’s hard to say. But for me, you know, I would prefer a phone call after you’ve sent out the letter, you know. And maybe waiting a month or two and then reaching out again. But just because of COVID, you know, please be patient with our tribal communities.

DR. VERONICA PASFIELD: And Bruce, anything that you’ve encountered that you think is helpful?

DR. BRUCE ANDERSON: I’m sorry, can you repeat that?

DR. VERONICA PASFIELD: Yup. Is there anything that you’ve encountered in terms of how you handle it or your colleagues have handled it? That you think is helpful in terms of an approach when you--the tribes aren’t responsive or certainly not in a timely fashion?

DR. BRUCE ANDERSON: Well, the smoothest transition was to not even use NAGPRA, was to contact the tribal authority, the Tohono Oʼodham, a nation here in Pima County. Explain to them that we had remains that were investigated by their police back in the 1990s from a known area on the tribal land’s grounds. And we were able to return those remains directly to the tribal authority without using NAGPRA. That came after trying to use NAGPRA on another case where we got no response--we got one response. We got one response from one of the 11 tribes we sent the letter to. And that letter said they defer to a southern tribe. And we got no response from the southern tribe. So that’s why I was somewhat excited when Megan pitched this idea that maybe there’s a way to--for ME/C offices to talk directly to the tribes. And well, we’re not averse to using NAGPRA to return these remains to the tribes. It may be as Reylynne said, it may be a telephone call or two at the front end to get things going. So then when all the paperwork is done, the tribe has already pre-accepted those remains. I hope--I hope something like that might come out of Megan‘s research.

DR. VERONICA PASFIELD: Yeah. For me, I have to tell you, I really appreciate it when people don’t get mad at me or guilt trip me. I’ll give you just two quick examples of things that have happened only in the last couple of months. We have a university in the Great Lakes that whose--I think it was the janitor who found a closet stuffed with human remains that were the research--the research collection in the mind of an--of an archaeologist who had retired. And we have also found out that there is an issue with a university hospital and massive teaching collections and not necessarily even knowing the identity of the--some human remains. But we can’t assume that they, some of these aren’t our relatives. So it’s a tidal wave, you guys, like this--we are--we are in the tail end of two, three centuries. Thomas Jefferson was digging up burial mounds in Virginia. I mean, this is--this is a multicentury problem that we are trying to all deal with. So I always appreciate it when people are nice to me. I just wanted to share that. Any--all right. Let’s see. Okay.

So I’m going to actually take this one just because I think I, kind of, answered it. So, thoughts on situations where multiple tribes are affiliated with a location to establish cultural affiliation. This is a great question. And I put a link in the chat to what the law says about cultural affiliation and competing claims is the term that you see in the law. So the statute gives you guidance. And I--the advice, the really excellent advice that I got from the National NAGPRA Program is don’t forget that the regulatory process is set up and that the timing of how something will sit on the National Register for 30 days if people have a competing claim, that that’s an opportunity to handle that. And then as long as you don’t have a nefarious intention and you’ve done your due diligence that, you know, you’re not vulnerable, you’re not very vulnerable. So does that sound right? Reylynne, do you think I--does that sound about right?

REYLYNNE WILLIAMS: Yeah. And it’s also, you know, for your information too, that a lot of the tribes who have a direct link or are culturally affiliated as a group, they do have working groups and they can assign one tribe to take lead overall, you know. So these tribes who have working groups, you know, do come together to speak, but for tribes who have no cultural ties together, but are in the same area, it all comes down to that conversation of having with the tribes. And unfortunately, you know, it does come down to who has the final say for disposition of those ancestral remains.

DR. VERONICA PASFIELD: Yeah. True. And no, to the tribes on our side, we’re very much working together all the time thinking about ways that we can create, you know, more efficient and responsive implementation too. So we’re doing our best in that way, as well. Megan, I don’t--I want to make sure that we bring up somebody’s question here. “Were the results of your study published somewhere?” And I just want to make sure that you get a chance to talk about that.

MEGAN KLEESCHULTE: Yes. So, the results from the study and the thesis were put into a manuscript that was recently accepted by PoLAR. It’s just in review and some last-minute editing, but it should be available on that medium soon. I think we have time for one more question and then we’ll have to wrap it up.

DR. ELLEN LOFARO: I just wanted to jump in. And apologies to jump to the last question, but there was a clarification about if someone dies in their private home, on private land, does NAGPRA apply? And that’s really important because there’s a couple of different places, but if the ME/C office gets involved or even the sheriff’s office or someone else takes possession or control of those remains, and then it ends up either not being a criminal case or a criminal case is closed and turned into a civil matter, then NAGPRA does apply. It does not matter whether those remains were found on federal private land. That’s the collection section of the law. There’s a separate section of the law, the land part of the law that deals with inadvertent or accidental discoveries on tribal and federal land after 1990. So all of those, if it’s on federal or tribal land after 1990, has to go through like a similar NAGPRA process, but even if they’re found on private land, depending, again, if an institution that receives federal funding has possession or control, then you have to go through the NAGPRA process if it’s civil, so...

DR. VERONICA PASFIELD: So people are giving us some examples of when you have remains you--the genealogy doesn’t indicate a specific tribe or there are--and there’s also a question about, you know, an individual was discovered in the past and traded in the early 1900s. So you don’t really know where they came from. And these are great questions. I have to tell you guys, just because we’re out of time, because we could talk about each individual situation and it’s very fascinating. I can’t stress enough and I put up a link in the chat to call the National NAGPRA Program. They are so helpful. And they can also recommend that you look into specific proceedings for the NAGPRA Review Committee. This is the committee that was established by Congress to, sort of, help settle unresolvable differences or confusions for all entities implementing NAGPRA. And so they--there could be precedent around that that’s helpful or whatever. So I would definitely recommend calling National NAGPRA Program, probably Melanie O’Brien is where I would start. And the contact information is on the homepage for the National NAGPRA Program that I put in the chat.

MEGAN KLEESCHULTE: I will also add for anyone who has attended today, who has even the smallest of question, please feel free to contact any of us that were on the panel today. Our contact information is on the last slide here, but also was posted in the chat. We are more than happy to field questions, again, no matter how specific or general that they are. A lot of this is very context-specific and situation-specific, so we very much so understand if you have a question about a particular case that you’ve encountered or a particular situation that you have encountered, and we’re more than happy to provide advice or information to help guide you through that situation. So again, please do not hesitate to reach out with further questions or situations.

CHRISTINE CROSSLAND: Hi. So I--I’m sorry, Veronica.

DR. VERONICA PASFIELD: No, no, no, no, I was just going to say how are we doing for time?

CHRISTINE CROSSLAND: I think we’re out of time. But I just want to thank all of you. Again, this has been an incredible webinar, a great discussion, lots of great questions, lots of great responses. I want to thank each and every one of our presenters. And I also want to give a special shout out to our team at Leidos, who helped make the webinar go seamlessly. That’s always a good thing with IT these days. And also a special thank you to the participants for joining us. I mean, there’s been some inquiries that keep coming in. The presentation, the webinar will be made available to everyone, we hope within a two-week timeframe. Keep in mind, there’s a holiday this week. So some people, we want them to take some time off and spend with family. And if we did not answer your question, you should feel free to reach out to the panelists or myself and we’ll make sure you get those responses back. And with that, I think we’re good to go with all of the follow-up. I just want to say that, once again, this was a spectacular presentation. This is an excellent example of teamwork, collaboration, partnership. It’s really taking science and working with tribal stakeholders on things that are really, really important, and I can’t thank you enough for all the hard work that you all do. So in closing, I send my best wishes to you, your families, friends, colleagues to remain safe, healthy, and in the care of one another. Take care everyone and goodbye.
    
  
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Date Published: December 9, 2021
    
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