Part of the problem is more fundamental: some institutions were not fully committed to compliance, or interpreted their legal obligations in the narrowest possible way. The laws require return of human remains, associated funerary objects, sacred objects, and objects of cultural patrimony — categories that have required significant interpretation in specific cases and that institutions have sometimes construed in ways that minimized what they were required to return.
A 2023 update to NAGPRA regulations — among the most significant changes since the law’s passage — strengthened requirements and reduced the ability of institutions to delay repatriation while claiming scientific necessity. The regulation was controversial among some anthropologists and archaeologists who argued that it limited legitimate research on ancient remains. Indigenous community advocates and tribal representatives argued that the previous framework had been too permissive and that the new regulations were necessary to make the law’s promise real.
The Sitting Bull case sits slightly outside the most contentious debates around NAGPRA because the Smithsonian is governed by the National Museum of the American Indian Act rather than NAGPRA — a distinction that means the Smithsonian and NAGPRA-governed institutions handle some situations differently. But the underlying tensions are the same: who holds authority over the remains and belongings of Indigenous people who died before modern consent frameworks existed, and what obligations do the institutions that acquired those materials under the norms of a discredited collection regime now bear?
The answer that the National Museum of the American Indian Act and NAGPRA both take is: the institutions bear the obligation to return, and the authority to determine what should happen to the materials rests with lineal descendants and affiliated tribes, not with the museums. This is a significant shift from the position that prevailed for most of the twentieth century, when museums routinely argued that the scientific and educational value of their collections outweighed any claim descendants might make.