Puerto Rico and NAGPRA: Protection of Archaeological Patrimony under a Colonial Government
Archaeological sites are consistently being threatened and destroyed in Puerto Rico. One factor that contributes to the destruction of sites on the island is that the Native American Graves Protection and Repatriation Act (NAGPRA) does not extend to indigenous Taíno settlements in Puerto Rico. Extending the power of NAGPRA over Puerto Rico could help preserve indigenous sites in the island, however, we end up entangled once again in the nuances of our colonial government and their views on who is and isn’t Native American and who can and can’t be.
The Taínos were the last Native Americans to live in Puerto Rico, and they were decimated by the Spanish Conquistadores during the 16th century. Still, Native American DNA remains in Puerto Ricans to this day, proving that Taínos did not completely disappear after the colonization of the island and that they are our ancestors. This, however, is not enough for the federal government to recognize the Taínos as a Native American tribe and to extend the power of NAGPRA over the U.S. territory.
NAGPRA was signed by Congress back in 1990 when growing concerns on the desecration of indigenous sites and burials became too many to ignore. This story of structural violence, however, started with the dawn of anthropology and archaeology and scientific racism that permeated the 18th century.
The first systemized excavation in the United States was organized by Thomas Jefferson back in the 1780s in his own plantation in Virginia. A slave owner and firm advocate for slavery, Jefferson had African American slaves excavate mounds he had selected that contained skeletal remains that could be traced to indigenous groups.
This act was the first of what became a movement of using science to prove racial superiority by studying Native American sites all across the country, without their consent, engagement, or support. Over time, the rhetoric around Archaeology went from explicitly upholding white supremacism to maintaining the importance of looking into the past for increased knowledge. The phrase "for science" was used to justify the desecration of sacred indigenous sites long after Thomas Jefferson. On top of this, thousands of Native American sites were also being destroyed and desecrated by the private sector and the construction of infrastructure that kept increasing exponentially, especially in the late 19th century and 20th century.
Museum, teaching, and personal collections from these excavations continued to grow through the 19th and 20th centuries, as did the protests of Native American communities wanting their ancestors returned to them, and the ones still underground to remain there. Tensions reached a peak in the late 20th century when lobbying started to pass legislation to protect Native American remains. News about the desecration and looting of Native American remains made national news more than once in the decade of 1980s, and in 1987 the state of Indiana passed the first legislation to protect Native American remains.
NAGPRA was finally signed in 1990. This Act requires all government agencies and institutions to return human remains and cultural patrimony artifacts back to their associated federally recognized tribe. Apart from the aspect of returning things to its respective tribe, NAGPRA also requires all future projects that have any federal funding to stop the excavation and conduct proper archaeological studies and repatriation if during the excavation Native American artifacts or remains emerge.
When NAGPRA was signed, the federal government added a word that makes this Act moot in Puerto Rico: “recognized” tribe.
We don’t need to understand much of the history of how “federally recognized” Native American tribes came to be. It’s sufficient to know that many of these recognized tribes are recognized as such based on the US ontology of what a tribe or being indigenous is or isn’t. Indeed, recent changes in federal guidelines have resulted in 4 tribes being recognized in California in 2020, a decrease from 81 back in 2013. This has directly impacted what institutions like UC Berkeley, where I’m completing my doctoral studies, can do with regards to the repatriation of Native American remains and materials, which has resulted in a significant lag in the repatriation of elements as stipulated by NAGPRA and the University of California system. Additionally, it is worth mentioning that given that the only reason the US needs to deal with these tribes and groups is for political reasons, there have to be living members of the community; if there isn’t any living member, the US does not need to recognize their existence.
Given that NAGRPA doesn’t apply in Puerto Rico, we find ourselves in the same state the U.S. was before 1990; Native American sites are being destroyed viciously by the private sector, and even by the local and federal government.
Archaeologists in Puerto Rico have struggled with this issue for decades. It is not uncommon for us to tell someone that we are archaeologists, and for them to reply if we know of the site destroyed by a company in Arecibo, in Ponce, in Guayama, or any other city in the island.
“My friend was a construction worker there, and he was asked to just dump everything they found that could tie the place to an archaeological site. They found things made out of clay, cemíes (indigenous carved stone), and even bones”, someone told me a year ago, referring to a construction site in Arecibo.
Certainly, Puerto Rico does have its own regulations and laws regarding the protection of archaeological sites. However, the enforcement of these regulations is difficult, to say the least. Even worse, some of these regulations are so mild, that disregarding them becomes an option when it comes to the legal and financial outcomes of doing so.
Just last year, it was reported that a multimillion project in the city of Dorado, supervised by the US ARMY Corps of Engineers, found a prehistoric (before Spanish conquest) settlement during the excavations. Supposedly, they hired private archaeologists to recover the materials discovered. However, heavy machinery was still used across the site, with no evidence of any attempts to save the materials; most of the site was destroyed, including at least three human burials.
When reports of this atrocity made the national news in Puerto Rico, the Instituto de Cultura Puertorriqueña (Institute of Puerto Rican Culture, in charge of protecting cultural patrimony) reviewed the case and the violation. The violation of the archaeological protection law entailed a mere $10,000 fine. How much is $10,000 for a multimillion project? Not much. Is not even 1% of the cost of the project. It is not even comparable to how much money these companies lose when they are required to stop the project for weeks.
Adding to this, the Instituto de Cultura Puertorriqueña, in charge of enforcing the archaeological protection regulations, lacks authority and jurisdiction in too many instances. For example, in 2006 they were sued by a city government for pausing a construction project that threatened an archaeological site; the court concluded that the ICP did not have the authority of stopping such projects. Similarly, the US Army Corps of Engineers has been the federal agency disregarding the most local regulations on the protection of sites, to the extent that they threatened the ICP to take legal action against the institute because they do not have any authority over federal projects on the island; they even expressed the institute did not have the authority to even fine them.
If NAGPRA were to apply in Puerto Rico, the financial repercussions of not protecting the archaeological sites become considerable. Construction projects that could easily afford a $10,000 fine will be less likely to purposely violate NAGPRA and be fined $100,000 instead.
When it comes to the legal consequences, given that the violation would be a federal offense, construction projects would also be more conscious of being in compliance and not find themselves in a legal battle in federal court. The up to 12 months in jail for violating NAGPRA would also be a discouraging element if it were to be implemented in Puerto Rico.
Having the federal government involved in the protection of the patrimony on the island will also make federal employees be more aware and vigilant of the compliance of the projects they are a part of, which would in turn avoid disasters like the Dorado project that the US ARMY Corps of Engineers supervised. Government officials wouldn’t be complicit anymore.
Having NAGPRA apply to Puerto Rico when it comes to prehistoric sites would not solve all the problems around archaeological protections, of course, as we still have the loopholes of private property and historic sites (after Spanish arrival). Additionally, it would add to the colonial power over heritage management and the protection of Puerto Rico’s patrimony. However, given the current colonial state of the island, in which the federal government holds the greatest authority and power over virtually everything, the positive effects of extending NAGPRA over indigenous sites in Puerto Rico would be immeasurable, and much needed.
José L. Marrero-Rosado
Ph.D. Student in Anthropology and Archaeology at UC Berkeley
 https://www.elnuevodia.com/noticias/locales/notas/el-icp-multa-al-cuerpo-de-ingenieros-por-trabajos-no-autorizados-en-sitio-arqueologico/  https://www.noticel.com/ahora/top-stories/20180119/multan-a-yulin-por-destruccion-de-yacimiento-arqueologico/  https://www.elnuevodia.com/ciencia-ambiente/otros/notas/denuncian-que-vandalizaron-un-historico-yacimiento-arqueologico-en-jayuya/  https://www.primerahora.com/noticias/puerto-rico/notas/historica-acusacion-por-intentar-saquear-yacimiento-arqueologico/  https://cite.case.law/pr/168/215/  https://www.wapa.tv/noticias/locales/amenazado-yacimiento-taino_3796.html  https://www.primerahora.com/noticias/puerto-rico/notas/federales-guardan-silencio-sobre-yacimientos-arqueologicos-que-pudieran-afectarse-por-gasoducto/  Acknowledging the legal intricacies regarding how NAGRPA could apply in Puerto Rico, be it as an amendment, clause, or more complicated processes involving the recognition of Taínos, their descendants, or other ways.  Nieves-Colón, M. A., Pestle, W. J., Reynolds, A. W., Llamas, B., De La Fuente, C., Fowler, K., Skerry, K. M., Crespo-Torres, E., Bustamante, C. D., Stone, A. C., & Mulligan, C. (2020). Ancient DNA Reconstructs the Genetic Legacies of Precontact Puerto Rico Communities. Molecular Biology and Evolution, 37(3), 611–626.  Martínez-Cruzado, J. C., Toro-Labrador, G., Ho-Fung, V., Estévez-Montero, M. A., Lobaina-Manzanet, A., Padovani-Claudio, D. A., Sánchez-Cruz, H., Ortiz-Bermúdez, P., & Sánchez-Crespo, A. (2001). Mitochondrial DNA analysis reveals substantial Native American ancestry in Puerto Rico. Human Biology, 73(4), 491–511.  I am not claiming here that the Taínos should be recognized by the federal government (and Puerto Ricans their living relatives), as this would be a biologically determinist argument on what it means to be Native American. Additionally, there are other ontological differences on what it is to be Native American, differences fueled by geographical, political, and temporal contexts, exacerbated by the colonial reality of PR being part of the US.  https://www.monticello.org/site/research-and-collections/jeffersons-excavation-indian-burial-mound  It is worth noting that Native Americans were not the only target group in these racist projects. In the medical field, African slaves’ bodies also became central to the study of the human race.  Fine-Dare, K. (2002). Grave injustice: The American Indian repatriation movement and NAGPRA. University of Nebraska Press.  https://www.congress.gov/bill/101st-congress/house-bill/5237  “...any tribe, band, nation, or other organized group or community of Indians,..., which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” From H.R.5237 - Native American Graves Protection and Repatriation Act  http://auditor.ca.gov/reports/2019-047/auditresults.html  I recognize and acknowledge that UC Berkeley sits on the territory of xučyun (Huichin), the ancestral and unceded land of the Chochenyo speaking Ohlone people. This land was and continues to be of great importance to the Muwekma Ohlone Tribe and other familial descendants of the Verona Band. I recognize that I and every member of the Berkeley community has, and continues to benefit from, the use and occupation of this land, since the institution’s founding in 1868.  Ibid. 17  https://www.sabrinaagarwal.com/kroeber-hall-comment-agarwal  See footnotes 1-7 for examples.  The destruction of the site was made aware by a civilian that visited the site and found artifacts and human remains scattered on the site. His social media post went viral quickly, alerting the local authorities.  https://cite.case.law/pr/168/215/  https://www.elnuevodia.com/noticias/locales/notas/ajeno-el-municipio-de-dorado-a-desastre-en-yacimiento-arqueologico/